Zachra v. American Mfg. Co.

• Decision Date: 31 December 1913
• Citation: 162 S.W. 1077,179 Mo. App. 683
• Parties: ZACHRA v. AMERICAN MFG. CO.
• Court: Missouri Court of Appeals

162 S.W. 1077

179 Mo. App. 683

ZACHRA v. AMERICAN MFG. CO.

St. Louis Court of Appeals. Missouri.

December 31, 1913.

Rehearing Denied January 20, 1914.

1. PLEADING (§ 406) — OBJECTIONS — VARIANCE.

Though the petition in an employé's action for personal injuries did not allege that defendant corporation was the successor of the corporation of the same name, incorporated in another state, by which plaintiff was employed when injured, or had taken over the assets and assumed the liabilities of such corporation, that issue was properly submitted to the jury, where the case was tried on that theory without objection by defendant to the pleadings.

2. APPEAL AND ERROR (§ 197) — PRESENTATION BELOW—OBJECTION OF VARIANCE.

Where an employé's personal injury action was tried on the theory that defendant corporation was the successor of the corporation of the same name by whom plaintiff was employed when injured, and that issue was presented by instructions without objection by defendant that the petition did not so allege, defendant cannot first raise on appeal the objection of variance because the proof did not show that plaintiff was not employed by defendant corporation as alleged; there not being a total failure of proof, but merely a variance, which must be objected to as required by statute.

3. CORPORATIONS (§ 590)—TRANSFER OF ASSETS—EFFECT ON LIABILITY.

One corporation, which takes over the franchise and property of another, so as to become the same corporate entity under another name, is liable for the debts and obligations of the succeeded corporation.

4. APPEAL AND ERROR (§ 695) — RECORD — QUESTIONS PRESENTED — SUFFICIENCY OF EVIDENCE.

Where the record only contained parts of the evidence, the sufficiency of the evidence to support the judgment cannot be determined; it being for the appellate court, and not for appellant's counsel, to determine whether omitted evidence is relevant.

5. APPEAL AND ERROR (§ 170)—OBJECTIONS—PRESENTATION BELOW—NECESSITY—CONSTITUTIONAL OBJECTIONS.

Appellant cannot first claim on appeal that the judgment will deprive it of its property without due process of law, in violation of the state and federal Constitutions, since that question should have been raised when the judgment was rendered in the trial court; it being necessary to raise constitutional questions at the first opportunity.

Appeal from St. Louis Circuit Court; Eugene McQuillin, Judge.

Action by Alois Zachra against the American Manufacturing Company, a corporation. From a judgment for plaintiff, defendant appeals. Affirmed.

Percy Werner, of St. Louis, for appellant. Hall & Dame, of St. Louis, for respondent.

REYNOLDS, P. J.

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 $4,000.

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 "H. R. Murray, secretary of the said defendant corporation, he being in said defendant's usual business office and in charge thereof. The president or other chief officer of said defendant could not be found in the city of St. Louis at the time of service."

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 13th, 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 Manufacturing Company," incorporated under the laws of the state of Massachusetts, its capitalization stated at $6,000,000, and the amount of its capital stock represented by property located and business transacted in this state being $1,578,000.

While the secretary of defendant company was on the witness stand as a witness, called by plaintiff, in answer to a question from counsel for plaintiff as to whether as a matter of fact American Manufacturing Company of Massachusetts was the same concern so far as its officers and property and so far as its business is concerned, as the former, The American Manufacturing Company, organized under the laws of West Virginia, he answered that the first named company, the Massachusetts corporation, by arrangement had assumed the assets and liabilities of the West Virginia Company some time in December, 1910. Counsel for defendant called the attention of the witness to the fact that this arrangement was in writing, and objected to this statement, on the ground that the writing would show the agreement between the parties. Asked by the court if the agreement was not in court in possession of counsel, counsel said: "I do not know if we can produce it, but if we can w...