Wright v. Bertiaux

• Citation: 161 Ind. 124, 66 N.E. 900
• Case Date: April 01, 1903
• Court: Supreme Court of Indiana

161 Ind. 124
66 N.E. 900

WRIGHT
v.
BERTIAUX.¹

Supreme Court of Indiana.

April 1, 1903.

Appeal from Circuit Court, Madison County; W. O. Barnard, Special Judge.

Action by Firman Bertiaux against Thomas Wright. Judgment for plaintiff, and defendant appeals. Reversed.

John W. Lovett and T. E. Holloway, for appellant. Kittinger & Diven and J. E. Hall, for appellee.

HADLEY, C. J.

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 10 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, Ind., 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 employé, nor had appellant an office or agency in the county of Madison, Ind., 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, Ind., where the accident happened. Charles A. McNair, a resident of St. Louis, Mo., was its president and general manager. For about three years its affairs had been in the hands of T. 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, Mo., 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

[66 N.E. 901]

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...