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books of account as its predecessor, continu- v. Oshkosh Match Co., 89 Wis. 406, 62 N. ing the same accounts, without rest or break. W. 84. See, also, Hall v. Herter Brothers, The stockholders were the same persons 83 Hun, 19, 31 N. Y. Supp. 692; Id., 90 Hun, theretofore interested in the manufacturing 280, 35 N. Y. Supp. 769; Id., 157 N. Y. 694, company, except C. A. Lamoreaux, who took 51 N. E. 1091. In Schufeldt v. Smith, 139 one share, apparently for the purpose of Mo. 367, 40 S. W. 887, a partnership of three qualifying him as director, and Sam Wheeler, members converted themselves into a corwho took five shares, and paid $500 therefor, poration. Later the corporation made a and later bought another five shares. Checks deed of trust, preferring certain creditors of were signed “Jane Bretting Administratrix," the former partnership. In a suit by credior simply "Jane Bretting." tors 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, 2359.

[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.

[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 dimi[2] There is a line of authority which may nution or loss occurring after that date in the be fairly said to hold that where copart- ordinary vicissitudes of business. If the ners or other joint owners of a solvent go- copartners sold goods or merchandise after ing business transform themselves into a cor- April 1st on credit, the account, including poration, to which the joint property is the profit on the transaction, would go to the transferred in exchange for shares of stock, corporation. If, by reason of breach of warthere must, in order to bind the new corpo- ranty on this sale, a liability accrued to ration for the liabilities of the former part- the purchaser, the corporation would be nership, be an express assumption by the chargeable with this liability. No other corporation of such liabilities. 2 Cook, Cor- reasonable effect could be given to the res porations, § 673, p. 2041; Hart Pioneer Nurs- olution to take the property as of date of eries v. Coryell, 8 Kan. App. 496, 55 Pac. April 1st. In Chicago, Racine & Milwaukee 514; Austin v. Tecumseh Nat. Bank, 49 Neb. Line v. Wilmanns et al., 141 Wis. 289, 124 412, 68 N. W. 628, 35 L. R. A. 444, 59 Am. N. W. 261, the receivers on December 16, St. Rep. 543. There are also cases which 1908, sold and transferred certain accounts hold that no such express agreement need "as of June 17, 1908." It was held that be shown, but seem to go upon the presump- this carried to the purchaser moneys coltion that such liabilities are assumed under lected on the accounts by these receivers bethese circumstances. Du Vivier & Co. v. tween June 17 and December 16, 1908. The Gallice, 149 Fed. 118, 80 C. C. A. 556; Mod- form of liability to the plaintiff, if there is ern Dairy, etc., Co. v. Blanke, etc., Supply any such liability, is not material. If there Co. (Tex. Civ. App.) 116 S. W. 153; Haslett is such liability, it was a loss of the partner. Wotherspoon, 1 Strob. Eq. (S. C.) 209; ship incident to the operation of the busiAndres v. Morgan, 62 Ohio St. 236, 56 N. E. ness, and incurred after April 1st and before 875, 78 Am. St. Rep. 712; Texas Loan Agen- the actual transfer to the corporation was cy v. Hunter, 13 Tex. Civ. App. 402, 35 S. consummated. A business loss or liability of W. 399; York Mfg. Co. v. Brewster, 174 Fed. this kind cannot, with reference to the in566, 98 C. C. A. 348. A third line of cases terpretation of the words "as of date of holds that the assumption of liabilities may April 1st," be logically distinguished from be express or implied, and the latter rule 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 destroyed by accidental fire after April 1st, would not the loss fall on the corporation? The expression is nearly the equivalent of the old law Latin, "nunc pro tunc."

The plaintiff was not in the employment of the corporation at the time he was injured, but was in the employment of the precedent managers and owners of the business; and, assuming that there was an outstanding liability of such manager and owners to the plaintiff, incurred in the operation of this business and accruing on June 19, 1908, when the corporation took over this property as of April 1, 1908, and continued the same account books under the same name, at the same place, for the purpose of continuing the same business, it assumed by this form of resolution the liability to the plaintiff if any such liability existed. It follows that the judgment of the circuit court must be reversed, and the cause remanded for a new trial.

Held, that the following legal principles

apply:

JURY.

1. TRIAL (§ 139*)-PROVINCE OF COURT OR If there is fair room on the evidence for diverse conclusions as to the ultimate fact in a legal action, which is right is for the jury, is within the province of the court or that of and reasonable doubts as to whether the case the jury should be resolved in favor of the latter.

[Ed. Note.-For other cases, see Trial, Cent. Dig. 88 338-341; Dec. Dig. § 139.*1 2. APPEAL AND ERROR (§ 973*) - REVIEW QUESTIONS FOR JURY.

Under the foregoing, the decision of the trial court should not be overruled except upon its appearing by the record to be manifestly

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The testimony of a witness or finding of a jury, contrary to manifest physical situations, common knowledge, or conceded facts, is efficiently impeached thereby.

[Ed. Note.-For other cases, see Evidence,

Judgment reversed, and the cause remand- Cent. Dig. § 2437; Dec. Dig. § 588.*] ed for a new trial.

SAMULSKI v. MENASHA PAPER CO. (Supreme Court of Wisconsin. Nov. 14, 1911.)

(Syllabus by the Judge.)

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

A physical fact, existent as matter of common knowledge or established by evidence beyond room for fair controversy, cannot be overcome by human testimony, opinion or theorizing.

[Ed. Note. For other cases, see Evidence, Cent. Dig. 2437; Dec. Dig. § 588.*] 5. EVIDENCE (§ 597*)-WEIGHT AND SUFFI

CIENCY.

must be grounded on reasonable certainty as to The verdict of a jury to be warranted, probabilities arising from fair consideration of the evidence, not on conjecture or guessing, or possibilities.

[Ed. Note. For other cases, see Evidence, Cent. Dig. § 2449; Dec. Dig. § 597.*] 6. TRIAL (§ 139*)-QUESTION FOR JURY.

The party on whom the burden of proof rests not being able by evidence to remove the probability, with greater certainty than to case from the field of conjecture into that of leave one to choose between equally strong conflicting probabilities, no jury question is raised.

A shaft 6 feet or so long, was located about 22 feet from the floor. A 14 in. x 7 inch tight and a companion loose pulley were thereon near one end and a 4 foot 500 pound iron disk on the other, having on the out face knives fastened thereto by bolts projecting through about 2 inch shoulders on the back and there held bý burrs. Other 2 inch fan shaped projections were on the back. The disk, at the back, was cased 6 inches therefrom and around the rim a hand hold being therein for use in removing knives as necessary. The whole weighed some 800 pounds. At speed, it turned 700 times per minute by a 30 foot x 6 inch belt from a line shaft below. The belt was kept on the loose pulley, as desired, by a stick placed close under and near the opening between the pulleys, resting on the belt box between two nails driven therein on the up side of the belt at one end and against one nail driven therein on the opposite side of the box and down side of the belt toward the tight pulley, and the belt being shifted to the loose pulley, the shaft would turn some five minutes preventing for then removal of the knives. The stick being in position, as on the particular occasion, the belt would not shift. Plaintiff, the operator, had a hand and arm injured while attempting to loosen the burrs. The disk continued to move for a time then stopped and remained so, all things being in proper position. Some 3 minutes were accounted for between plaintiff's shifting of the belt and the injury. He said the disk stopped theretofore and thereat suddenly started. It had never before done so under the particular circumstances though plaintiff thought it could. The Court approved a jury finding that a loose belt and

[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 338-341; Dec. Dig. 139.*] 7. APPEAL AND ERROR (§§ 999, 1034*)-REVIEW-HARMLESS ERRORS.

Stability of trial determinations is of such importance, reasonable doubts should be resolved in favor thereof, technical defects be ignored and errors however numerous or plain or inexcusable, passed as inconsequential unless, manifestly, had they not occurred, the result might probably have been materially more favorable to the party complaining.

[Ed. Note.-For other cases, see Appeal and Dec. Dig. §§ 999, 1034.*] Error, Cent. Dig. $$ 3912-3924, 4603-4608;

8. TRIAL (§ 139*)-DIRECTING VERDICT.

If facts appear within the above rule rendering evidence from the mouths of witnesses

to the contrary incredible, theorizing upon | plaintiff, and defendant appeals. Reversed such evidence is mere conjecturing, not to be and remanded. 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; Dec. Dig. § 139.*] 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.

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

[Ed. Note.-For other cases, see Trial, Cent. in his left hand and arm. The general naDig. 88 338-341; Dec. Dig. § 139.*]

10. MASTER AND SERVANT (8 281*)-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 Servant, Cent. Dig. §§ 987-996; Dec. Dig. 8 281.*]

ture 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

Appeal from Circuit Court, Rusk County; cover over the back of the disk and some James Wickham, Judge. 5 inches therefrom forming a casing extending around but clear of the rim of the disk. Judgment for An opening in the back of the cover suffi

Action by Andrew Samulski against the Menasha Paper Company.

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ciently large to enable a person to insert his hand through and, with a wrench, turn off the burrs from the bolts holding the knives in place. Projections on the back side of the disk, standing out 3 to 4 inches rendered it exceedingly dangerous to so insert a hand for loosening the burrs without the disk being at rest. A shaft stationed some 2 feet from the floor. A tight and companion loose pulley 7 inches on the face and about 14 inches in diameter, by means of which and their connections the disk was operated-located on the shaft 3 feet or so from the back of the disk, such pulleys being far enough apart to clear each other and the tight one being nearest the disk. A drive belt some 30 feet long, 6 inches wide, of heavy leather, reaching the pulleys from the main drive shaft below the floor.

The disk, weighing some 500 pounds, in use, revolved with such velocity and force that, if, when at full speed, the belt was moved to the loose pulley it would continue to turn for some time. Upon moving the belt from the tight to the loose pulley to stop the machine, a piece of wood in the form of an ordinary broom stick, was laid on the boxing of the pulleys, which extended from the floor belt opening to within an inch, more or less, of the pulleys, and just under the clearance between them with the end on the up or slack side of the belt between two large nails, driven into the edge of the box far enough apart to receive it below the heads, they being bent in to prevent it from raising, materially, or rolling, and with the other end resting against a nail driven into the edge of the box on the opposite side, and on the side of the stick toward the tight pulley. The stick so placed, with the nails in position to retain it and properly performing their office, and the belt on the loose pulley, efficiently prevented such belt from engaging the tight pulley and giving motion thereto. In case of the nails, particularly either or both on the side of the stick toward the tight pulley, being bent over in such direction, the stick could roll somewhat and raise up a little, permitting the belt to creep toward the tight pulley, and possibly reach or engage it slightly. The stick could not raise up much as it only slightly cleared the pulleys.

Plaintiff, on the occasion in question, understood the mechanism of the machine, the use of the stick, as aforesaid, to prevent the drive belt from unexpectedly starting the disk to revolve, and danger of attempting to remove the knives while the disk was in motion. The nails on the up-side of the belt were bent over a little towards the drive pulley and spread sufficiently at the top to permit of the stick rolling or raising up a little. It could not raise to the top of the nails by reason of the interference aforesaid. Plaintiff had operated the machine

knives, as required. He knew the danger of starting to do it while the disk was in motion. On the particular occasion he placed the belt on the loose pulley, as usual, and put the broom stick in place. He testified that after the disk stopped revolving he inserted his hand, holding the wrench, through the opening to loosen the knife bolt. In such circumstances there had never been an unexpected starting of the disk to revolve either in his experience or that of any other person. As he was in the act of loosening a burr the disk suddenly started, catching his hand and causing the severe injury complained of. The belt was somewhat loose, as was claimed, allowing it to raise a little, intermittently, and move a little from side to side on the pulley. It touched the stick on the downward side of the belt but not on the upward side. Immediately after the accident the stick was found in place, the belt on the loose pulley and the disk still moving. Two or three minutes thereafter it came to a rest without any change in the belt or stick. Plaintiff, as he testified, just before he proceeded to loosen the knife bolts, complained to the foreman about the belt being too loose, was requested to proceed, and given assurance that the belt would be fixed.

The cause was submitted to the jury, resulting in these findings in addition to those relating to the injury and the amount of damages: The belt was running on both pulleys when plaintiff was injured. The stick used to prevent the belt from slipping from the loose to the tight pulley was in its usual position between the nails when plaintiff was injured. The belt was defectively loose. Defendant failed to exercise ordinary care in respect thereto and the arrangement to prevent the belt from automatically slipping from the loose pulley so as to start the other. Such fault was the proximate cause of plaintiff's injury. Prior to the injury plaintiff notified the foreman that the bel was defective and requested him to repair it The foreman promised to do so. Plaintif continued to work relying thereon. He did not remain a longer time than was neces. sary to enable defendant, acting reasonably, to make the repairs. Plaintiff was free from contributory fault. The disk had stopped moving by its own momentum before plaintiff was injured. He did not assume the risk of the disk unexpectedly starting by reason of the belt slipping from the loose to the tight pulley.

Damages were fixed by the jury at $5,000, and judgment was rendered on the verdict in plaintiff's favor; numerous exceptions being saved in defendant's behalf for a review by this court, including an exception to a refusal of judgment in the latter's favor notwithstanding the verdict, and refusal to correct the verdict so as to find in harmony

Doe & Ballhorn, for appellant. Thomas & Carow (Stiles, Devaney & Hewitt, of counsel), for respondent.

MARSHALL, J. (after stating the facts as above). Only familiar legal principles are involved in this appeal.

& Son Co., 113 Wis. 8, 88 N. W. 909; Marshall v. Railway Co., 125 Wis. 96, 100, 103 N. W. 249; Vetter v. Railway Co., 140 Wis. 296, 300, 122 N. W. 731; Kroger v. Cumberland Fruit Package Co., 145 Wis. 433, 440, 130 N. W. 513.

[4] An uncontrovertible found, or conceded fact, or matter existing beyond all reasonable controversy, manifestly, can successfully challenge testimony to the contrary from the mouth of a witness, or number of them. That is elementary, and no more tersely stated and significantly applied than in Musbach v. Wisconsin Chair Co., supra, in language by Mr. Justice Dodge, speaking for the court, substantially thus: The physical fact "established by the evidence beyond controversy" is such as human testimony, opin

itself, is sufficient to defeat the plaintiff's theory submitted to the jury and condemns the finding in his favor.

[1, 2] The case has been studied and a conclusion reached with full appreciation, it is thought, of the rule that if, in a legal action, there is fair room as to a matter of fact for a conclusion on the evidence either way, which is correct is a jury question, not to be invaded by judicial interference and of such importance that reasonable doubts should be resolved in favor of the decision rendered. But whether there be such doubt when the point is raised on motion, is a judicial question which is as exclusively with-ion or theorizing cannot overcome and, of in the province of the trial judge to solve, as truth involved in conflicting evidence is within that of the jury. Efficient discharge of duty in the former province, is as important as such discharge in the latter, and often calls for the highest degree of judicial courage. That reasonable doubts should be resolved in favor of the one is but little less important, if any, than that they should be so resolved as to the other. Hence the necessity for, the logic of and the great dignity which should be accorded to-as this court has oft-lar persons, or persons generally, but such as en declared that other rule, going hand in hand, so to speak, with the former, that the trial judge's determination, in the absence of mistake of law, using that term in the technical sense should not be overturned on appeal, unless clearly, prejudicially, wrong. That respect should thus be accorded, also, because, from the very nature of the case, the trial judge who sees the witnesses and hears them testify, is, in general, the best judge of whether the given matter might fairly be decided for the plaintiff or defendant.

Obviously, the real right of a matter cannot be changed by the mere say-so on oath of any one. It may well be established by evidence, but cannot be thus created. Just so with a verdict. The jury may go upon excursions of discovery for truth within the field of evidence to the uttermost boundaries of reason, not boundaries set by any particu

rational men of common sense might set without passing beyond the dividing line between the field of probabilities into that, of mere guessing or conjecture. So it happens now and then, that cases reach this court, where notwithstanding the decision below, the judgment cannot stand the test of that rule though it seems to have done so as applied below, or through some oversight the application was not there made.

[5] By reason of the foregoing it has been commonly said: Verdicts must rest on probabilities, not on bare possibilities. There is not capacity in any number of the former to create the latter. So the person on whom the burden of proof rests to establish the right of a controversy, must produce credible evidence from which men of unbiased minds can reasonably decide in his favor. He cannot leave the right of the matter to rest in mere conjecture and expect to succeed. O'Brien v. Railway Co., 102 Wis. 628, 632, 78 N. W. 1084; Hyer v. Janesville, 101 Wis. 371, 77 N. W. 729; Clark v. Franklin Mut. Fire Ins. Co., 111 Wis. 65, 68, 86 N. W. 549; Hart v. Neillsville, 141 Wis. 3, 15, 123 N. W. 125, 135 Am. St. Rep. 17; Stock v. Kern, 142 Wis. 219, 223, 125 N. W. 447.

[3] Notwithstanding the foregoing, there is this other rule, which is sometimes, perhaps, as the history of cases in this court shows, not appreciated below or overlooked altogether: The testimony of a witness or finding of a jury, contrary to unquestionable physical situations, or common knowledge, or conceded facts, is of no weight in favor of the side it is invoked to support, while it may be self-destructive-be successfully impeached by its demonstrated utter improbability or impossibility. Badger v. Janesville Cotton Mills, 95 Wis. 599, 70 N. W. 687; Flaherty v. Harrison, 98 Wis. 559, 74 N. W. 360; Baxter v. Railway Co., 104 Wis. 307, 329, 80 N. W. 644; Musbach v. Wisconsin [6, 7] The doctrine of those cases condemns Chair Co., 108 Wis. 57, 66, 84 N. W. 36; the grounding of a verdict upon such shadBuckmaster v. Railway Co., 108 Wis. 353, owy proof as not to establish the vital facts 356, 84 N. W. 845; Albrecht v. Railway Co., to a reasonable certainty. A mere choice of 108 Wis. 530, 545, 84 N. W. 882, 53 L. R. A. possible or conjectural theories will not do. 653; Beyersdorf v. Cream City Sash & Door As said in Stock v. Kern, by Mr. Justice Co., 109 Wis. 456, 462, 84 N. W. 860; Staf- Siebecker-speaking for the court in reafford v. Chippewa Val. Ry. Co., 110 Wis. 331, firmance of a declaration found in some of 345, 85 N. W. 1036; Muenchow v. Zschetzche the cases heretofore cited: The person on

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