Wright v. Bertiaux
| Decision Date | 01 April 1903 |
| Docket Number | 19,801 |
| Citation | 66 N.E. 900,161 Ind. 124 |
| Parties | Wright v. Bertiaux |
| Court | Indiana Supreme Court |
Rehearing Denied June 18, 1903.
From Madison Circuit Court; W. O. Barnard, Special Judge.
Action by Firman Bertiaux against Thomas Wright. From a judgment for plaintiff, defendant appeals.
Reversed.
J. W Lovett, F. E. Holloway and Seddon & Blair, for appellant.
W. A Kittinger, W. S. Diven and J. E. Hall, for appellee.
Appellee sued appellant for negligently causing his physical injury while, it is alleged, the former was at work in the latter's steel-mill. Appellant first appeared specially and moved the court to quash the summons and return, which motion was overruled. Continuing his special appearance he then filed his verified plea in abatement setting up, in effect, that he (appellant) was on the 25th day of July, 1899, for ten years before, and ever since has been, a resident of the state of Missouri; that he was not at the time of the accident complained of the owner of the factory and plant at Alexandria, Indiana, where said accident occurred, nor was he engaged in operating the same, nor had he any interest in the operation and management of said factory and plant; that Thomas R. Aiken, upon whom the only summons was served in this action, was not his agent or clerk, nor his employe, nor had appellant an office or agency in the county of Madison, Indiana, for the transaction of any business whatever since and before said time. On the issue tendered by the plea in abatement there was a trial and finding for appellee; and, over appellant's motion for a new trial of the issue, judgment was rendered against him to plead over. Issues formed on the complaint were submitted to the jury, which resulted in a verdict and judgment for appellee. Appellant's motion for a new trial of the merits was also overruled.
The appeal presents some important questions, which have been ably discussed, but in the view we have been constrained to take of the case, we deem it profitable to consider only the one which relates to the liability of appellant for the alleged wrongs suffered by appellee. The question involves the inquiry, was appellant the operator of the mill, or liable in any way for the negligence of those engaged in its operation? The record discloses that the evidence produced by appellant in support of his pleas in abatement was, without objection, introduced and read to the jury by appellee in support of his complaint; and, since the issue joined by the answer to the merits and that joined by the plea in abatement present the same question with respect to the sufficiency of the evidence to support each finding and judgment, we will consider them together.
The facts disclosed by the record are as follows: The Union Steel Company, a corporation, owned the steel-mill at Alexandria Indiana, where the accident happened. Charles A. McNair, a resident of St. Louis, Missouri, was its president and general manager. For about three years its affairs had been in the hands of Thomas R. Aiken, as receiver, appointed by the Madison Circuit Court. When appointed Aiken was paymaster and clerk in the office of the corporation, and after his appointment he continued to perform the same duties in addition to his official duties. McNair also became and acted as general superintendent for the receiver, and Albert Trinler continued to act as local superintendent. As its principal creditors, it owed two St. Louis, Missouri, banks $ 360,000. The receiver was ordered to sell all its property, real and personal, on the 14th day of June, 1899, for the payment of debts. An arrangement had been made by which the Republic Iron & Steel Company was to become the ultimate purchaser of the plant, but for some reason the purchase could not be accomplished on the day of the receiver's sale. Under an agreement between appellant Thomas Wright and the two St. Louis banks--he being a director in one of them--Wright attended and bid off the property at the receiver's sale, in his own name, and for himself, so far as was disclosed at the time, but in fact as trustee for the two banks, as a matter of convenience, to hold and convey for them the title to the property to the Republic Iron & Steel Company when the time arrived that such conveyance and transfer could be properly made, which was believed to be within a week or ten days. Appellant had no interest in the property, other than as a naked trustee holding the legal title for the banks as equitable owners. The banks furnished the money to comply with his bid. Under the terms of the sale the purchaser was to take the property charged with full performance of all outstanding contracts made by the receiver, both for the purchase of material and supplies, and for the delivery of finished products of the mill. On the 23d of June, 1899, the receiver executed a deed of conveyance of the property to Thomas Wright, and reported to the court that he had turned the property over to him, and the sale was thereupon confirmed by the court. This deed of conveyance was given into the possession of James L. Blair, a resident of St. Louis, Missouri, who attended the sale as the attorney for the banks, and did not come into the possession of appellant. Neither did appellant take possession of the property, but it was left in the charge of Mr. McNair, for the banks; and appellant returned at once to his home in St. Louis, Missouri. On the next day after the confirmation of the sale, June 23, 1899, appellant executed to the banks a declaration of trust, stating therein that he had no personal interest in the property; that he bought the property for the banks, who were the owners, and would convey and transfer the same whensoever and to whomsoever they should...
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