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with unseemly and often indecent haste, for circumstances chown in the case. His evitrifling amounts, when their physical and dence that he did not know anything for the mental condition was such that they were first seven weeks after he was injured is unable to intelligently comprehend what impeached by contradicting statements made they were doing. Lusted v. C. & N. W. Ry. by himself, as well as by other convincing Co., 71 Wis. 391, 36 N. W. 857; Albrecht v. evidence. It is true that the injury to the Milwaukee & Superior Ry. Co., 94 Wis. 397, plaintiff was serious, and that the amount 69 N. W. 63; Mensforth v. Chicago Brass paid him was small, but it is also true that Co., 142 Wis. 516, 126 N. W. 41, 512, 135 the questions of defendant's negligence and of Am. St. Rep. 1084; Buggs v. Rock County plaintiff's contributory negligence were, to Sugar Co., 143 Wis. 462, 128 N. W. 100. say the least, close, and the trial court set Settlements fairly made and untainted by aside the findings of the jury favorable to fraud are to be encouraged, rather than the plaintiff on both propositions, because lawsuits, however. If all a plaintiff need not supported by any credible evidence. So it do in an action of this kind in order to would be difficult to say that the certainty orerturn a written agreement of a settle- of $250 and doctor and hospital bills would ment in fact fairly made is to swear that not be preferable in the instant case to the he was unconscious or insane at the time uncertainty of a lawsuit. be made it, employers would have little in [2, 3] To impeach a formal written instruducement to make settlements in any case ment on the ground of fraud or mistake, the directly with the employé. The latter has proof must be clear and convincing beyond a the benefit of the money wbich he receiver, reasonable controversy. Jackowski v. Ill. Steel whether there is any legal liability on the Co., 103 Wis. 448, 79 N. W. 757; Steffen v. Supart of the employer or not. To allow the preme Assembly of Defenders, 130 Wis. 485, employé to secure what he can by way of 110 N. W. 401; Schiefelbein v. Fidelity & C. a compromise settlement, and then resort to Co., 139 Wis. 612, 120 N. W. 398. The trial the courts to secure larger damages if he court instructed the jury that such was the has a case, would enable him to practice a law applicable to this case. Much deference fraud which should not receive judicial coun- must be given to the ultimate conclusion tenance. Every fact and every circumstance, reached by the trial court. Lind v. Uniform excluding the evidence of the plaintiff, tends Stave & Package Co., 140 Wis. 183, 188, 120 to show a valid settlement in the instant N. W. 839, and cases cited. case. Twenty days after the accident, the [4] The evidence in this case is such that defendant sent its agent to interview the we do not think the conclusion of the trial plaintiff in regard to a settlement. On that court should be condemned, although contraoccasion the agent did not think the condi- ry to that reached by the jury. In no case detion of the plaintiff was such that the matter cided in this court, where the facts were subof settlement should be discussed. Twenty stantially similar to those in the case at bar, days later the defendant received a letter, has the court held that the evidence was purporting to be written by the plaintiff, sufficient to avoid written instrument and in which he was made to say that he sho ing settlement. This conclusion renders was improving right along; that he had unnecessary the consideration of any other been up in the three-wheel chair; that he questions raised in the case. expected to be on crutches in a week; and Judgment affirmed. that it would not be very long until he would meet the defendant at its office, if everything went all right. It was nine days after this letter was written before defendant's ZIEMER v. C. G. BRETTING MFG. CO. agent called on the plaintiff. There is no (Supreme Court of Wisconsin. Nov. 14, 1911.) pretense that the agent made any assertion 1. EVIDENCE (8 471*)-OPINION-CONCLUSION of nonliability on the part of the defendant, OF LAW, or made any misrepresentations to him what One's testimony that, when a corporation erer. Plaintiff permitted the defendant to it did not assume their liabilities therein, is

took over the business of joint owners thereof, pay his hospital and doctor bills, and used but his conclusion of law on the facts. the $250 which was paid him, and makes (Ed. Note.-For other cases, see Evidence, no satisfactory explanation as to why he Cent. Dig. &$ 2149-2185; Dec. Dig. $ 471.*] thought the money was paid him and his 2. CORPORATIONS ($ 30*) — CONVEYANCES TO bills taken care of. The clinical record is CORPORATION-ASSUMPTION OF LIABILITIES. a convincing item of evidence to show men

Where joint owners of a solvent going

business form a corporation, to which they tal competency on the part of the plaintiff. transfer the joint property in exchange for its He had such competency, unless Sister Gal- stock, its assumption of the liabilities of the la, the Sister Superior, Mr. Nutter, and Mr. joint owners may be by express or implied agreeDavis were mistaken in the evidence which ment, which, like any other fact, may be prov

ed by any competent evidence which will estabthey gave, or testified to what they knew lish it. to be untrue. The evidence of the plaintiff [Ed. Note.- For other cases, see Corporations, generally is impeached by many facts and Dec. Dig. & 30.*]

a

3. Corporations (§ 485*)—CoNveyANCEs to CoRPORATION.—Assum PTION of LIABILITIES. Where joint owners of a manufacturing plant form a corporation, and it, in consideration of its shares of stock, takes over the plant “as of date of April 1st,” and it continues the same account books, under the same name at the same place, for the purpose of continuing the same business, it assumes any liability of the joint owners for injury to an employé in the business, occurring prior to the incorporation and the actual transfer, but subsequent to April 1st. [Ed. Note.—For other cases, see Corporations, Dec. Dig. § 485.*]

Appeal from Circuit Court, Ashland County; E. W. Helms, Judge.

Action by W. W. Ziemer against the C. G. Bretting Manufacturing Company. Judgment for defendant. Plaintiff appeals. Reversed, and remanded for new trial.

Eaton & Eaton and Frank Lamoreaux, for appellant. Lamoreux, Shea & Cate, for respondent.

TIM LIN, J. The former decision of this case is reported in 142 Wis. 224, 125 N. W. 318, where a judgment in favor of the plaintiff was reversed on the ground that the evidence failed to show that the plaintiff at the time of the injury was in the employ of the defendant corporation. The case was retried, and at the close of the testimony the circuit court directed a verdict for the defendant, for the reason that the plaintiff was not in the employment of the defendant at the time of the injury. The plaintiff appealed to this court, whereupon the parties entered into the following stipulation: “It is hereby stipulated by and between the above-named parties that the judgment herein shall be affirmed, unless this court shall find that there was evidence in the case upon which the jury could have found that the plaintiff was in the employ of the defendant at the time he was injured, or that the defendant is hereby estopped from denying that the plaintiff was then in its employ, or that the defendant assumed liability for such injury.”

The appeal, therefore, involves an examination of the evidence. Evidence was offered, which did not appear when the case was formerly before this court. It appeared that C. G. Bretting carried on a foundry business, under the name of the C. G. Bretting Manufacturing Company, at Ashland, Wis., prior to his death, which occurred in A. D. 1904. Jane Bretting, his widow, was then appointed administratrix, and ordered to close up the contracts and business on hand, and she continued the business under the same name. On January 21, 1907, she filed her final account as administratrix. On March 28, 1907, the inheritance tax was fixed. On April 2, 1907, she filed a supplemental or additional account as administratrix. C. G. Bretting left surviving him his widow and three sons, Ralph Bretting, William Henry Bretting, and

Henry L. Bretting. These four may be said to have owned the foundry plant and business as widow and heirs of C. G. Bretting, deceased. Ralph C., Henry L., and William H. Bretting were under 21 years of age, and Jane Bretting was their guardian. On or about March 16, 1907, Jane Bretting, Sam Wheeler, and C. A. Lamoreaux executed articles of incorporation of the C. G. Bretting Manufacturing Company, and caused the same to be duly filed with the Secretary of State and recorded with the register of deeds of Ashland county. This corporation was empowered by such articles to carry on a similar business to that carried on by the natural persons aforesaid, under the same name, and at the same place. The plaintiff was employed as a molder by the C. G. Bretting Manufacturing Company in April, 1907, and on June 19, 1907, while in that employment, was injured by reason of alleged defective appliances. The signers of the said articles of incorporation met on July 15, 1907, and received the subscriptions of Jane Bretting, Ralph Bretting, Sam Wheeler, and C. A. Lamoreaux to the capital stock of said corporation, and turned over the affairs of the corporation to the stockholders. The latter immediately and on the same day convened for the purpose of electing a board of directors and the transaction of other business. Among other things it was resolved “that the matter of the purchase of the C. G. Bretting manufacturing plant as heretofore conducted, consisting of real estate, buildings, machinery, and all personal property and accounts, as shown by the statement and schedule this day filed with the secretary of this company, be and the same is hereby referred to the board of directors, and the said board is hereby empowered, directed, and authorized to purchase the said plant as of date of April 1, 1907, for the sum of $40,000, and to issue in consideration therefor shares of the general stock of this corporation at par, not to exceed the sum of $40,000; it being understood that the said plant is owned by Jane Bretting, Ralph C. Bretting, William Howard Bretting, and Henry Lyman Bretting, one-quarter each, and that the stock of said corporation in payment therefor shall be issued to said owners of equal amount—i. e., $10,000 of stock at parvalue to each of said owners above named.” The schedule showed block 3, Commercial addition, Ashland, Wis., with the following buildings thereon: Foundry, blacksmith shop, boiler shop, machine shop, wood shop, pattern house, pumphouse; also a dwelling house on certain described lots, and certain machinery, tools, and fixtures, with stock on hand and other personal property, and a list of accounts receivable. On September 12, 1907, Jane Bretting and her three sons executed a transfer of this property to the corporation. The corporation used the same books of account as its predecessor, continuing the same accounts, without rest or break. The stockholders were the same persons theretofore interested in the manufacturing company, except C. A. Lamoreaux, who took one share, apparently for the purpose of qualifying him as director, and Sam Wheeler, who took five shares, and paid $500 therefor, and later bought another five shares. Checks were signed “Jane Bretting Administratrix,” or simply “Jane Bretting.” [1] One of the Brettings testified that the corporation did not assume the liabilities of its predecessor in business; but this was merely his conclusion of law upon the facts. The relations of Jane Bretting and her three sons to one another and to this property cannot in strictness be said to be those of copartners. But there was a decided analogy in respect to ownership and obligation. The evidence fairly tends to prove that on and after March 15, 1907, the administratrix and her children intended to convey this business and property to the corporation in exchange for shares of its stock as soon as they conveniently could do so, the transfer to take place as of April 1, 1907. They proceeded by easy stages to accomplish this as above recited. There is no fraud in the transaction. The question is whether the corporation is liable to an employé, injured in consequence of a defective appliance on June 19, 1907. The law requires notice of such injury to be served within one year from the date of injury, and in October, 1907, the appellant served such notice on the corporation, by serving it on Jane Bretting, an officer thereof. [2] There is a line of authority which may be fairly said to hold that where copartners or other joint owners of a solvent going business transform themselves into a corporation, to which the joint property is transferred in exchange for shares of stock, there must, in order to bind the new corporation for the liabilities of the former partnership, be an express assumption by the corporation of such liabilities. 2 Cook, Corporations, $ 673, p. 2041; Hart Pioneer Nurseries v. Coryell, 8 Kan. App. 496, 55 Pac. 514; Austin v. Tecumseh Nat. Bank, 49 Neb. 412, 68 N. W. 628, 35 L. R. A. 444, 59 Am. St. Rep. 543. There are also cases which hold that no such express agreement need be shown, but seem to go upon the presumption that such liabilities are assumed under these circumstances. Du Vivier & Co. v. Gallice, 149 Fed. 118, 80 C. C. A. 556; Modern Dairy, etc., Co. v. Blanke, etc., Supply Co. (Tex. Civ. App.) 116 S. W. 153; Haslett v. Wotherspoon, 1 Strob. Eq. (S. C.) 209; Andres v. Morgan, 62 Ohio St. 236, 56 N. E. 875, 78 Am. St. Rep. 712; Texas Loan Agency v. Hunter, 13 Tex. Civ. App. 402, 35 S. W. 399; York Mfg. Co. v. Brewster, 174 Fed. 566, 98 C. C. A. 348. A third line of cases holds that the assumption of liabilities may be express or implied, and the latter rule

v. Oshkosh Match Co., 89 Wis. 406, 62 N. W. 84. See, also, Hall v. Herter Brothers, 83 Hun, 19, 31 N. Y. Supp. 692; Id., 90 Hun, 280, 35 N. Y. Supp. 769; Id., 157 N. Y. 694, 51 N. E. 1091. In Schufeldt v. Smith, 139 Mo. 367, 40 S. W. SS7, a partnership of three members converted themselves into a corporation. Later the corporation made a deed of trust, preferring certain creditors of the former partnership. In a suit by creditors of the corporation to have this deed set aside, the deed was upheld, but upon the ground that the evidence established an agreement by the corporation to take the firm property and assume its liabilities. See, also, 3 Thompson Corp. (2d Ed.) ch. 83, §§ 2345, 23.59. [3] This agreement on the part of the corporation may be proven, like any other fact, by any competent evidence which will establish either an express or an implied valid agreement to assume the liabilities. Pratt v. Oshkosh and Hall v. Herter Brothers, supra. The evidence of assumption in the instant case is as follows: (1) The identity in name; (2) the almost complete identity of interest; (3) the continuation of the same business at the same place; (4) the identity of property; (5) the use of the old books, without break or rest in the accounts; and (6) the resolution to take the property of the former associates as of date of April 1st. This last is very significant. In order to take the property as of April 1st, the corporation would necessarily acquire all increase or increment accruing after that date, and be subject to all diminution or loss occurring after that date in the ordinary vicissitudes of business. If the copartners sold goods or merchandise after April 1st on credit, the account, including the profit on the transaction, would go to the corporation. If, by reason of breach of warranty on this sale, a liability accrued to the purchaser, the corporation would be chargeable with this liability. No other reasonable effect could be given to the res. olution to take the property as of date of April 1st. In Chicago, Racine & Milwaukee Line. v. Wilmanns et al., 141 Wis. 289, 124 N. W. 261, the receivers on December 16, 1908, sold and transferred certain accounts “as of June 17, 1908.” It was held that this carried to the purchaser moneys collected on the accounts by these receivers between June 17 and December 16, 1908. The form of liability to the plaintiff, if there is any such liability, is not material. If there is such liability, it was a loss of the partnership incident to the operation of the business, and incurred after April 1st and before the actual transfer to the corporation was consummated. A business loss or liability of this kind cannot, with reference to the interpretation of the words “as of date of April 1st,” be logically distinguished from any other business losses or liabilities oc

over and continue the old business is ap- inefficient prevention of automatic shifting parent, and the expression “as of date of caused the injury. Plaintiff took judgment, April 1st” must be given some significance, notwithstanding the verdict.

the Court refusing judgment for defendant

The following although the writing in which it occurs de- pictorially represents the machine: [See page scribes only tangible property. If one of these 143.] buildings or one of these machines was de Held, that the following legal principles stroyed by accidental fire after April 1st,

apply: would not the loss fall on the corporation? 1. Trial ($ 139*)-PROVINCE OF COURT OR

JURY, The 'expression is nearly the equivalent of

If there is fair room on the evidence for the old law Latin, “nunc pro tunc."

diverse conclusions as to the ultimate fact in The plaintiff was not in the employment of a legal action, which is right is for the jury, the corporation at the time he was injured, is within the province of the court or that of

and reasonable doubts as to whether the case but was in the employment of the precedent the jury should be resolved in favor of the managers and owners of the business; and, latter. assuming that there was an outstanding lia [Ed. Note.-For other cases, see Trial, Cent. bility of such manager and owners to the Dig. 88 338-341; Dec. Dig. $ 139.*] plaintiff, incurred in the operation of this 2. APPEAL AND ERROR (8 973*) — REVIEW

QUESTIONS FOR JURY. business and accruing on June 19, 1908,

Under the foregoing, the decision of the when the corporation took over this property trial court should not be overruled except upas of April 1, 1908, and continued the same on its appearing by the record to be manifestly account books under the same name, at the wrong. same place, for the purpose of continuing Error, Cent. Dig. 8 3846;

Dec. Dig. $ 973.*]

[Ed. Note. For other cases, see Appeal and the same business, it assumed by this form 3. EVIDENCE ( 588*)-WEIGHT AND SUFFIof resolution the liability to the plaintiff if

CIENCY. any such liability existed. It follows that The testimony of a witness or finding of the judgment of the circuit court must be a jury, contrary to manifest physical situareversed, and the cause remanded for a

tions, common knowledge, or conceded facts, is

efficiently impeached thereby. new trial,

(Ed._Note.-For other cases, see Evidence, Judgment reversed, and the cause remand-Cent. Dig. § 2437; Dec. Dig. 588.*] ed for a new trial.

4. EVIDENCE (8 588*)-WEIGHT AND SUFFICIENCY-PHYSICAL FACTS.

A physical fact, existent as matter of com

mon knowledge or established by evidence beSAMULSKI v. MENASHA PAPER CO.

yond room for fair controversy, cannot be over

come by human testimony, opinion or theo(Supreme Court of Wisconsin. Nov. 14, 1911.) rizing.

[Ed. Note.-For other cases, see Evidence, (Syllabus by the Judge.)

Cent. Dig. 2437; Dec. Dig. 588.*] A shaft 6 feet or so long, was located about 24, feet from the floor. A 14 in. 7 inch 5. EVIDENCE ($ 597*)-WEIGHT AND SUFFItight and a companion loose pulley were there

CIENCY. on near one end and a 4 foot 500 pound iron

The verdict of a jury to be warranted, disk on knives fastened thereto by bolts projecting the evidence, not on conjecture or guessing, or

must be grounded on reasonable certainty as to the other, having on the out face probabilities arising from fair consideration of through about 2 inch shoulders on the back and there held by burrs. Other 2 inch fan

possibilities. shaped projections were on the back. The [Ed. Note.-For other cases, see Evidence, disk, at the back, was cased 6 inches therefrom Cent. Dig. § 2449; Dec. Dig. 8' 597.*] and around the rim a hand hold being therein 6. TRIAL (8 139*)—QUESTION FOR JURY. for use in removing knives as necessary. The whole weighed some 800 pounds.

The party on whom the burden of proof

At speed, rests not being able by evidence to remove the it turned 700 times per minute by a 30 foot x 6 inch belt from a line shaft below. The belt probability, with greater certainty than to

case from the field of conjecture into that of was kept on the loose pulley, as desired, by a leave one to choose between equally strong stick placed close under and near the open. conflicting probabilities, no jury question is ing between the pulleys, resting on the belt

raised. box between two najls driven therein on the up side of the belt at one end and against one

[Ed. Note.-For other cases, see Trial, Cent. nail driven therein on the opposite side of the Dig. $$ 338-341; Dec. Dig.

139.*] box and down side of the belt toward the tight 7. APPEAL AND ERROR (S$ 999, 1034*)-REpulley, and the belt being shifted to the loose VIEW-HARMLESS ERRORS. pulley, the shaft would turn some five minutes Stability of trial determinations is of such preventing for then removal of the knives. importance, reasonable doubts should be reThe stick being in position, as on the particu- solved in favor thereof, technical defects be iglar occasion, the belt would not shift. Plain- nored and errors however numerous or plain tiff, the operator, had a hand and arm injured or inexcusable, passed as inconsequential unwhile attempting to loosen the burrs. The less, manifestly, had they not occurred, the disk continued to move for a time then stopped result might probably have been materially and remained so, all things being in proper po more favorable to the party complaining. sition. Some 3 minutes were accounted for between plaintiff's shifting of the belt and the Error, Cent. Dig. $$ 3912-3924, 4003-4608;

[Ed. Note. For other cases, see Appeal and injury. He said the disk stopped theretofore Dec. Dig. 88 999, 1034.*] and thereat suddenly started. It had never before done so under the particular circumstances 8. TRIAL (8 139*)—DIRECTING VERDICT. though plaintiff thought it could. The Court If facts appear within the above rule ren. approved a jury finding that a loose belt and I dering evidence from the mouths of witnesses

to , the . contrary incredible. , theorizing upon such, evidence is mere conjecturing, not to be indulged, in by trial courts even by their burdening the jury in respect to the matter. [Ed. Note.--For other cases, see Trial, Cent. Dig. §§ 338-341; i.ec. Dig. ișā.*]

9. TRIAL, (§ 139*)—DIRECTING, VERDICT. In the circumstances stated, a case dependable upon conclusions inconsistent with verities, should be taken from the jury on motion and a verdict resulting contrary to such verities set aside and the case dismissed on request therefor. [Ed. Note.--For other cases, see Trial, Cent. Dig. §§ 338–341; Dec. Dig. § 139."] 10. MAs.IER AND SERVANT (§ 281*)—INJURY TO SERVANT—CONTRIBUTORY NEGLIGENCE. On the facts fully established as indicated above in the light of the stated legal principles there was no legitimate basis for the vital findings in favor of the plaintiff and the verdict should have been corrected accordingly and judgment rendered thereon for the defendant. [Ed. Note.—For other cases, see Master and jo, Cent. Dig. §§ 987–996; Dec. Dig. §

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plaintiff, and defendant appeals. Reversed and remanded.

Action to recover for a personal injury. The pleadings were as indicated by the following which the evidence established, or tended to.

Plaintiff, a man about 27 years of age of average intelligence and experience, while in the employ of defendant operating a machine, called a barker, was severely injured in his left hand and arm. The general nature of the machine was this: A heavy iron disk shaped wheel, about 4 feet in diameter, carried at the end of a shaft, there being on the outer and exposed face 4 knives about 8 inches long, fixed thereto and set out sufficiently to engage and plane off bark from blocks of wood when pressed against them for that purpose, which disk turned, when at full speed 700 or more revolutions per minute. Knives, from time to time, were required to be removed and sharpened. A cover over the back of the disk and some 5 inches therefrom forming a casing extending around but clear of the rim of the disk. An opening in the back of the cover suffi

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