Mytinger v. Waldrip

• Citation: 290 S.W. 777
• Decision Date: 04 December 1926
• Docket Number: (No. 11653.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: MYTINGER v. WALDRIP.
• Court: Texas Court of Appeals

290 S.W. 777

MYTINGER v. WALDRIP.

(No. 11653.)^*

Court of Civil Appeals of Texas. Fort Worth.

December 4, 1926.

Rehearing Denied January 15, 1927.

Appeal from District Court, Wichita County; P. A. Martin, Judge.

Action by Carrie Waldrip against J. C. Mytinger, doing business under the firm name of the J. C. Mytinger Grain Company. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

Bullington, Boone, Humphrey & King, of Wichita Falls, for appellant.

Davenport & Crain and Cummings & Wiech, all of Wichita Falls, for appellee.

BUCK, J.

Miss Carrie Waldrip, a feme sole, filed suit against J. C. Mytinger, doing business under the firm name of J. C. Mytinger Grain Company, alleging injury. She alleged that the defendant owned and operated a milling plant and grain elevator in the city of Wichita Falls, Tex., adjacent to the right of way of the Fort Worth & Denver City Railway Company. That she was in the employ of Carroll, Brought, Robertson & Gates Grocery Company, whose place of business was immediately north of the defendant's switch track. That she and the other employees of said last named company were accustomed, with the consent of the defendant, to use the passage across said switch track and had thereby become invitees in the use of said passageway. That the defendant used a cable stretched along the track, with one end attached to a power plant inside of the building and the other end attached to cars on the track, to be moved near and up to the building. That while the plaintiff was crossing the track on February 15, 1923, and as she was stepping over the rail and cable lying adjacent thereto and on the ground, the employees of the defendant, operating the power plant, tightened said cable, and caused it to be raised above the ground and strike her on the legs, and seriously and permanently injured her.

Suit was filed on February 19, 1924. The defendant on March 3, 1924, answered by a general demurrer and a general denial. On February 11, 1925, within two years after the alleged date of the accident, the defendant filed his first amended answer, in which among other pleas, he denied that he was doing business under the firm name of J. C. Mytinger Grain Company in the year 1923, which plea was verified. The evidence showed that the accident really occurred on April 20, 1923, and further showed that on July 7, 1921, the milling plant was operated under the name of J. C. Mytinger Grain Company, and at that time J. C. Mytinger was the sole owner, and on that date he filed a certificate, under the "Assumed Name Act" (Laws 1921, p. 142), in the county clerk's office. It was admitted in evidence that after June 6, 1922, J. C. Mytinger was never, at any time, the owner of the J. C. Mytinger Grain Company. The evidence further showed that J. C. Mytinger did not file in the office of the county clerk a certificate, under article 5950½b, Vernon's Texas Civil Statutes 1922 Supplement, which is as follows:

"Whenever there is a change in ownership of any business operated under any such assumed name as set out in section 1 hereof [art. 5950½], the person or persons withdrawing from said business or disposing of their interest therein, shall file in the office of the clerk of the county or counties in which such business is being conducted and has a place or places of business, a certificate setting forth the fact of such withdrawal from or disposition of interest in such business; and until he has filed such certificate he shall remain liable for all debts incurred in the operation of said business, which certificate shall be executed and duly acknowledged by the person or persons so withdrawing from or selling their interest in said business in the manner now provided for acknowledgment of conveyance of real estate."

The plaintiff did not, upon the filing of the defendant's plea that he did not own the J. C. Mytinger milling business at any time during 1923, file any further pleadings, seeking to make the corporation a party defendant, but relied on a plea of estoppel, based on article 5950½b, above quoted.

A trial was had on special issues, and the jury found that the plaintiff and other employees of the Carroll, Brought, Robertson & Gates Grocery Company used a pathway across the switch track of the J. C. Mytinger Grain Company or the Mytinger Milling & Grain Company, for the purpose of going to and from their work; that such use was with the knowledge and acquiescence of the J. C. Mytinger Grain Company or the Mytinger Milling & Grain Company, its agents, and employees; that the agents and employees of the J. C. Mytinger Grain Company or the Mytinger Milling & Grain Company caused a wire rope or cable to be suddenly moved while the plaintiff was crossing over the same on her way to her place of employment, and that thereby plaintiff was injured; that such moving of the wire cable was negligence on the part of the employees and was the proximate cause of the injury to plaintiff; that they did not warn plaintiff just before the moving of the cable that they were going to move it, and that such failure was negligence; that plaintiff's damage, by reason of said injury, was $2,250. The jury further answered that by the use of ordinary diligence plaintiff could have seen the cable in question at the time she attempted to step over the same, but that she was not guilty of contributory negligence in failing to see or observe the cable; that plaintiff was not watching or looking to see for what purpose the cable was being put to while going along said premises, but that she was not guilty of contributory negligence in so failing to watch and look.

Upon this verdict the court entered judgment for plaintiff in the sum of $2,250, with interest and costs of suit. From this judgment the defendant has appealed.

Opinion.

The "Assumed Name Act" was passed in 1921, and became effective 90 days after the date of adjournment, to wit, March 12, 1921. Said act, as amended in the 1925 Civil Code, being articles 5924 to 5927, inclusive, does not include the provision in the original act section 3):

"And until he has filed such certificate he shall remain liable for all debts incurred in the operation of said business," etc.

Appellant urges that the "Assumed Name" statute has no application to this case, for the reason that the undisputed evidence shows that appellant never at any time did business under an assumed name; that he used his initials and his surname in the conduct of his business, with the addition of the word "Company."

Section 1 of our Statutes reads as follows:

"No person or persons shall hereafter carry on or conduct or transact business in this state under any assumed name or under any designation, name, style, corporate or otherwise, other than the real name or names of the individual or individuals conducting or transacting such business unless such person or persons shall file in the office of the clerk of the county or counties in which such person or persons conduct, or transact or intend to conduct or transact such business, a certificate setting forth the name under which such business is or is to be, conducted or transacted, and the true or real full name or names of the person or persons conducting or transacting the same, with the post office address or the addresses of said person or persons."

The Supreme Court of Washington held that the full, true, and real name of the owner of the business appeared in the designation "George W. Merrill Automobile Company." See Merrill v. Caro Investment Co., 70 Wash. 482, 127 P. 122. The Washington Act (Rem. Comp. Stat. § 9979) provides as follows:

"Nor shall this chapter be deemed or construed to prevent the lawful use of a partnership designation, name or style: Provided, that such partnership designation, name or style shall include the true and real name or names of all of the parties conducting such business or having an interest therein."

Our act does not contain any provision to this effect, and appellee urges that by reason of the difference between the two acts the Washington case is not pertinent. Some of us are of the opinion that the decision in the Washington case is pertinent, in spite of the difference in the statutes, though we do not decide the case on this ground. The Supreme Court of Michigan, in Zemon v. Trim, 181 Mich. 130, 147 N. W. 540, construed a statute very similar to ours, in which it said:

"It cannot be said David S. Zemon is an assumed or fictitious name, nor can that term be applied to David S. Zemon & Co. * * * In our opinion the name here used was not `an assumed or fictitious name,' within the meaning of the act."

The Supreme Court of New York in the case of Black v. New York Life Insurance Co., 70 Misc. Rep. 532, 127 N. Y. S. 409, held that one Henry M. Black, doing business as H. M. Black & Company, was not required by the Assumed Name Statute of the state of New York to file a certificate. See Consol. Laws N. Y. c. 39, § 82. See Jenner v. Shope, 67 Misc. Rep. 159, 121 N. Y. S. 599; Commonwealth v. Richey, 171 Ky. 330, 188 S. W. 397, L. R. A. 1917B, 697; Carland v. Heckler, 233 F. 504 (C. C. A. Sixth Circuit); Missaukee Farm & Investment Co. v. Ferris, 193 Mich 286, 159 N. W. 490; Befarah v. Spell, 176 N. C. 193, 96 S. E. 949. See, especially, Canonica v. St. George, by the Supreme Court of Montana, 64 Mont. 200, 208 P. 607.

The caption of the act under discussion is as follows:

"An Act forbidding transactions of business in Texas under an assumed name other than the real name or names of the individuals conducting such business, unless such individuals file in the office of the clerk of the county where such business is to be conducted a certificate containing the names and addresses of such persons; providing for the keeping of special record of such certificates by the county clerks of the state, providing for a filing fee to be paid the county clerk for filing such certificates, making it...