Zachra v. American Manufacturing Company
| Decision Date | 31 December 1913 |
| Citation | 162 S.W. 1077,179 Mo.App. 683 |
| Parties | ALOIS ZACHRA, Respondent, v. AMERICAN MANUFACTURING COMPANY, appellant |
| Court | Missouri Court of Appeals |
Argued and Submitted December 1, 1913.
Appeal from St. Louis City Circuit Court.--Hon. Eugene McQuillen Judge.
AFFIRMED.
Judgment affirmed.
Percy Werner for appellant.
(1) The trial court erred in refusing to direct a verdict for the defendant. (a) The testimony of plaintiff's own witness Murray and the documentary evidence, show conclusively that the defendant in this case was not in existence in the month of October, 1906, and consequently that plaintiff could not have been in its employ at that time. (b) The testimony of plaintiff's own witnesses, and the documentary evidence show with equal conclusiveness that the corporation by which plaintiff was employed in October, 1906, was a different corporation from the present defendant, that said former corporation is now in the hands of the St. Louis Union Trust Company, as trustee, for the purpose of collecting its assets, paying its liabilities, and distributing its remaining funds to its stockholders. (2) A judgment against this defendant, the Massachusetts corporation, will not bar a subsequent action against the West Virginia company or its trustee. (3) Even if it were true, which it is not, that the present defendant had assumed the liabilities of the former corporation, the one by which plaintiff was employed, plaintiff could not recover in this action, since his cause of action is not based upon such a state of facts, is not a proceeding in equity to compel the defendant to pay this alleged liability of the former corporation, but is an action at law by an alleged employee to recover from his alleged employer damages for an injury suffered while in the employ of the defendant itself. (4) To allow a recovery against one corporation for a tort committed by another and different corporation would infringe that provision of the Fourteenth Amendment to the Constitution of the United States, forbidding any State to deny to any person within its jurisdiction the equal protection of the laws.
Hall & Dame for respondent.
(1) The corporation which answered as the defendant is the same corporation that owned and operated the plant mentioned in October, 1906. The Massachusetts Company was a mere continuation of the West Virginia Company and was identical as a corporate body with it, and is liable for its torts. Palmer v. Railroad, 142 Mo.App. 633; Goode v. Land, Lumber & Handle Co., 153 S.W. 1107; Hunter v. Vehicle Co., 190 F. 665; Jones v. Francis, 127 P. 307; Langhorne v. Railroad, 91 Va. 369; Grenell v. Gas Co., 112 Mich. 70; Austin v. Bank, 49 Neb. 412; Friedenwald v. Cigarette Co., 117 N.C. 544; Berry v. Railroad, 52 Kas. 774; Railroad v. Pruitt, 134 Ind. 557; Railroad v. Maffitt, 75 Ill. 524; State v. Railroad, 77 Maryland 489; Railroad v. Boyd, U. S. Sup. Ct., 228 U.S. 482; Coffey v. Bank, 46 Mo. 140; Blank v. Mining Co., 95 Cal. 524; 2 Cooke on Corporations (4 Ed.), 1354; Jennings Neff & Co. v. Ice Co., 159 S.W. 1088; Parsons Co. v. Hamilton Co., 78 N.J.L. 309; Cooper v. Light & R. Co., 35 Utah 570; Seymour v. Railroad, 132 P. 427. (2) The affidavit in defendant's answer has no bearing upon the issues. The defendant could not deny its own existence. Hammar v. Carriage Co., 155 Mo.App. 441; Meyer Bros. v. Ins. Co., 73 Mo.App. 166; Donk Bros. v. Aronson, 102 Mo.App. 590; Flynn v City of Neosho, 114 Mo. 567; Eubanks v. Edina, 88 Mo. 654; Witthaus v. Railroad, 64 Mo. 523. (3) By appearing and going to trial as defendant the party answering admits that it is the defendant, that is, the party sought to be charged, and the corporation answering is thus precluded and estopped from claiming that it is a different corporation from the one described in the petition as owning and operating the plant where plaintiff was injured in October, 1906. The name is the same. The dropping of "The" from the name is inconsequential. Hammar v. Carriage Co., 155 Mo.App. 441; Dist. v. Thompsen, 116 F. 832; Newcomb v. Railroad, 182 Mo. 687; Realty Co. v. Packing Co., 112 Mo.App. 271; Railroad v. Shirley, 20 Kan. 660; Kelly v. Mississippi Cr. Co., 1 F. 564; 10 Cyc. 145; Railroad v. Anderson Co., 150 S.W. 239; Forbes v. McDougle, 150 S.W. 745; R. S. 1909, secs. 2978, 3021, 3339, 3037, 3360. (4) The judgment bars a subsequent action against either the old or the new company. This follows as a necessary result from the rules laid down in the authorities under point I, supra. (5) The service and return of the writ was sufficient to bring the West Virginia Company into court if that company were not the same as the Massachusetts Company. The return of the sheriff is conclusive as to that. Newcomb v. Railroad, 182 Mo. 687; Realty Co. v. Packing Co., 112 Mo.App. 271. (6) In any event plaintiff could maintain this suit. Whatever the relation of the Massachusetts Company to the West Virginia Company, the former assumed the assets and liabilities of the latter, and is liable to plaintiff, and plaintiff is not required to prosecute two suits. Any variations, between pleading and proof are immaterial and even if material are not taken advantage of as required by statute. Coffey v. Bank, 46 Mo. 140; Jones v. Francis, 127 P. 307; Langhorne v. Railroad, 91 Va. 369; Friedenwald v. Tobacco Works, 117 N.C. 544; Sharples Co. v. Creamery Co., 111 N.W. 783; Freeman v. Tel. Co., 160 Mo.App. 271. (7) The party answering and defending had full knowledge of plaintiff's claim and that a suit by plaintiff on this same subject of action was pending at the time of the alleged change from a West Virginia to a Massachusetts Company. If the latter company desired to keep aloof it should have filed motion to quash the sheriff's return. Zachra v. Mfg. Co., 159 Mo.App. 96, is a part of this court's records, and the evidence in this present suit referred to that suit. Forbes v. McDougle, 150 S.W. 745; Seymour v. Railroad, 132 P. 427.
Plaintiff brought his action against the defendant American Manufacturing Company, a corporation, averring that defendant is a corporation duly organized and existing and doing business under the laws of the State of Missouri, and that it is now and at the time thereinafter mentioned in the petition, was the owner of, and engaged in operating, a certain hemp manufacturing plant, at Ninth and Barry streets in the city of St. Louis. Averring that on October 15, 1906, and while he was in the employ of defendant at the plant above mentioned, and under the direction of defendant was engaged in doing a particular piece of work, plaintiff avers that he was injured through the negligence of defendant, and for that injury he claims judgment in the sum of $ 4000.
A writ was issued directed to the sheriff of the city of St. Louis, commanding him to summon "American Manufacturing Company, a corporation," to appear before the court to answer the complaint of Zachra. The sheriff returned this as served "on the within named defendant, the American Manufacturing Company, a corporation," by delivering a copy of the writ and petition to
The defendant appearing, answered, denying that it was a corporation duly organized and doing business under the laws of the State of Missouri, denied that it was at the time mentioned the owner of and at the time engaged in operating the hemp manufacturing plant specified in the petition and denied each and every other allegation in the petition. Along with this answer, an affidavit of H. R. Murray was filed, setting out that he is the secretary of American Manufacturing Company; has read the statements in the answer relative to the incorporation of the defendant; that they are true and that said American Manufacturing Company which now owns and operates the plant mentioned in the petition was organized under the laws of the State of Massachusetts on April 13, 1910, and did own and operate the plant at the time it was served with a copy of the writ and petition in the case and that this defendant was not in existence and did not own or operate the plant at the time mentioned in the petition, to-wit, October, 1906. There was no reply.
The only point involved in this appeal turns on the identity of the defendant served with the corporation which owned the plant at the time of the accident in 1906, and its liability for the tort, that liability accruing and the injury sustained when the plant was owned and operated by another corporation called "The American Manufacturing Company." The latter, as appeared by the evidence in the case, was a corporation organized under the laws of the State of West Virginia and licensed to do business in this State the certificate of the Secretary of State, issued August 20, 1891, showing that, and also that it was a corporation with a capitalization of $ 2,794,500, and that the amount of its capital stock represented in the State of Missouri was $ 450,000. An affidavit of retirement from business in this State by "The American Manufacturing Company," above mentioned, was also in evidence, it appearing that it was filed with the Secretary of State January 15, 1911. It was further in evidence that on January 10, 1911, a license to do business in this State was issued by the Secretary of State to "American Manufaturing Company," incorporated under the laws of the State of Massachusetts, its capitalization stated at $ 6,000,000, and the amount of its...
To continue reading
Request your trial