No. 10672 | Wash. | Nov 2, 1912
This is an action to recover damages for per-
sonal injuries sustained by an employee. The case was tried to the court, and a judgment for $5,000 was entered against all the defendants. This appeal followed.
The court found, and the evidence shows, that between July 17, 1900, and February 28, 1910, the Chehalis River Lumber Company, hereafter called the old corporation, was a Washington corporation organized for the purpose of manufacturing timber products and engaged in the' operation of a shingle mill; that, on the date last stated, it had assets exceeding $100,000 in value; that the appellants Francis and the Davies were the trustees and only stockholders; that Francis was its president and manager; that, for some years prior to the date last stated, it had failed to pay its annual license fee to the state; that on that date the secretary of state dissolved it and caused its name to be stricken from his records; that it had no actual notice thereof; that thereafter and until January 28, 1911, it continued to exercise its corporate powers and privileges, employed many persons to labor in its mill, and paid them with its check drawn by its manager in its corporate name; that, on and prior to July 26, 1910, the respondent was employed in its mill and that he had no notice of its dissolution; that on the date last stated he was injured while in the performance of his work as a deck hand, in an unguarded bolter saw which could have been reasonably and practicably safeguarded; that, on September 26, he . caused a written notice of the time, place, and cause of the accident to be served upon the appellant Francis,
The first question urged by the appellants is that the respondent was guilty of contributory negligence. The respondent was engaged in drawing a heavy, water-soaked shingle block from the drag saw to the bolter saw, with his back to the latter, when the picaroon which he was using for that purpose slipped or drew out of the block, causing him to fall against the bolter saw, with the result that his right hand was cut off above the wrist. He testified that he did not know what caused it to draw out of the block. These facts do not show contributory negligence. The purpose of the factory act is to require safeguards to be provided in
Timely notice in writing of the time, place, and cause of the injury was given to the old corporation by serving it upon the appellant Francis, its president, manager, and trustee. The notice states that the injury was sustained by reason' of its failure to guard the bolter saw. The notice stated further that the injury was suffered while in its employ, at a mill operated by it near Centralia. The appellant contends that this was not notice to the “employer,” as required by the factory act, Laws 1905, page 169, § 9 (Rem. & Bal. Code, § 6595). This contention is made upon the theory that, when the secretary of state has entered upon his records a notation that a corporation is dissolved, it ceases to have a corporate existence, and that, under the provisions of Rem. & Bal. Code, § 3715d, “The trustees of such corporation shall hold the title to the property of the corporation for the benefit of its stockholders and creditors, to be disposed of under appropriate court proceedings,” and that the trustees ipso facto became the employer. If the dissolution be conceded, although it may well be doubted under the view taken in State ex rel. Preston Mill Co. v. Howell, 67 Wash. 377" court="Wash." date_filed="1912-03-09" href="https://app.midpage.ai/document/state-ex-rel-preston-mill-co-v-howell-4731438?utm_source=webapp" opinion_id="4731438">67 Wash. 377, 121 Pac. 861, the deduction is not sound. When the notice was given, it was believed by all the parties that the old corporation had an existence and its mill was being operated by its trustees through Francis, its manager, in the usual way. While the notice is addressed to the old corporation and recites that the respondent was its employee, it was served upon the president, manager and trustee, and it im
“This court has uniformly placed a liberal construction upon the requirements of such notice, holding that the notice had a common-sense object, viz., to apprise the officers of the municipality of the location, so that it might be examined with a view to preparing a defense to the action if it was thought a defense should be made; that if it directs the attention of said officers with reasonable certainty to the place of the accident, the requirements of the notice have been met; and that it was not intended that the terms of the notice should be used as a stumbling block or pitfall to prevent recovery by meritorious claimants.”
The only purpose in the mind of the lawmakers, in requiring notice of an injury to be given under the factory act, was that the employer might be advised of the time, place, and cause of the injury within the time described in the statute, in order that he might have an opportunity to investigate the merits of the claim. In the light of this purpose, under a fair and reasonable interpretation of the statute, it would seem absurd to hold that the notice was insufficient.
There remains to be considered the contention that there is no liability upon the part of the new corporation. The argument is that the trustees of the old corporation were the respondent’s employers at the time he sustained his injury, that there was no liability upon the part of the old corpora
“It seems to have been held that the general rule [that all actions abate on dissolution] does not apply where the circumstances attending the creation of a new corporation, and its succession to the property, franchises, and business of another corporation, are such as to show that the new corporation is in reality, however, it may be in law, a mere continuation of the old corporation; or, in other words, that although technically, as a matter of law, a new corporation may be created, yet, if the old corporation ceases to exist, and all its assets and franchises are acquired by the new, which is in reality a mere continuation of the old, the new corporation is to be held to have impliedly assumed, and is liable upon, all the obligations of the old.”
The same general principle was applied in the following cases: Chase v. Michigan Tel. Co., 121 Mich. 631" court="Mich." date_filed="1899-11-07" href="https://app.midpage.ai/document/chase-v-michigan-telephone-co-7940295?utm_source=webapp" opinion_id="7940295">121 Mich. 631, 80 N. W. 717; Grenell v. Detroit Gas Co., 112 Mich. 70" court="Mich." date_filed="1897-03-10" href="https://app.midpage.ai/document/grenell-v-detroit-gas-co-3494850?utm_source=webapp" opinion_id="3494850">112 Mich. 70, 70 N. W. 413; 10 Cyc. 306; Clark and Marshall, Private Corporations, p. 1000; Austin v. Tecumseh Nat. Bank, 49 Neb. 412" court="Neb." date_filed="1896-10-21" href="https://app.midpage.ai/document/austin-v-tecumseh-national-bank-6650693?utm_source=webapp" opinion_id="6650693">49 Neb. 412, 68 N. W. 628, 59 Am. St. 543, 35 L. R. A. 44; Friedenwald
Mount, C. J., Crow, Parker, and Chadwick, JJ., concur.