174 S.E. 885 | W. Va. | 1934
This certificate involves the ruling of the trial court upon demurrer to a special plea.
The action was brought by Clara Jones, administratrix of the estate of her husband, Howard Jones, deceased, against P. G. Young, C. R. Young, Oscar Bunch, C. R. Summerfield, C. W. Horrocks and C. R. Drumheller, as partners doing business under the firm name of Thurmond-New River Coal Company, to recover for the death of decedent, June 9, 1933, who was instantly killed by coming in contact with an electrically charged wire in the course of his employment as a servant for defendants. The declaration charges that death was due to the negligence of defendants and that they were not subscribers to the state compensation fund.
Defendants, by special plea, deny that they are, or have *226 been, partners doing business under the firm name of Thurmond-New River Coal Company, and substantially aver that the company is a domestic corporation under a charter issued by the secretary of state August 25, 1931; that it is, and since its organization has been, engaged in the business of mining, shipping and selling coal; that failing to pay the required license tax for the fiscal year beginning July 1, 1932, its charter rights and franchise were forfeited and annulled and a receiver appointed to wind up its affairs by decree of February 3, 1933, in a suit by the state for the purpose under Code 1931, 11-12-77; that the receiver never took charge of the physical assets of the company nor exercised any control over its affairs; that the management and conduct of the business continued as usual; that the license tax and costs incident to the forfeiture having been paid, another decree was entered in the cause June 21, 1933, setting aside the previous order, discharging the receiver, and restoring the corporation to all its former charter rights and privileges. A demurrer to the plea was sustained.
Defendants, relying upon Miller v. Coal Company,
The special plea, without denying that defendants were operating the business at the time Jones was killed, impliedly says they were so doing, not as individuals, but as stockholders of Thurmond-New River Coal Company, a corporation. It further admits the forfeiture of the charter of the corporation for failure to pay the license tax, and the appointment of a receiver to take charge of the assets and wind up its affairs. It was therefore unlawful for defendants to continue the business under the charter of the corporation, which had not only forfeited its rights and franchise for non-payment of license tax, but had also failed to contribute to the compensation fund for the protection of its employees. A court, under such circumstances, should not countenance a plea of this nature. To hold otherwise would enable individuals, in violation of the statute and without personal liability, to do business in the name of an insolvent corporation which is unable or unwilling to meet its obligations to the state, its employees and creditors. *229
We, therefore, affirm the ruling of the circuit court.
Affirmed.