Lapas attēli
PDF
ePub
[blocks in formation]

YAZOO & M. V. R. CO. v. TEISSIER. In re YAZOO & M. V. R. CO. et al. (Supreme Court of Louisiana. March 30, 1914.)

(Syllabus by Editorial Staff.)

1. COURTS (§ 207*)-SUPREME COURT-JURISDICTION-PROHIBITION.

The ground of an application for prohibition to the trial court against further proceeding in a rule, that the effect of a suspensive appeal was to suspend execution of a judgment, involving the merits of the rule, on which the trial court has not yet passed, cannot be passed on by the Supreme Court, as for it to do so would be an exercise of original jurisdiction not permitted.

manner as a voluntary conveyance would do. But in the event of any change being made by the final decree in the decision of the cause, the corporation shall be bound to pay the additional assessment, or be entitled to recover back the surplus paid, as the case may be."

Defendant demanded of the sheriff that he pay over the deposited money to her, and, on his refusal to do so, took a rule on him in the trial court to show cause why the court should not order him to do so.

To this rule the sheriff filed an exception, on the ground that, as an effect of the suspensive appeal, the case had passed out of the trial court and gone to the appellate court, and the trial court had no longer ju

[Ed. Note. For other cases, see Courts, Cent. risdiction over it, and hence could not make Dig. 613; Dec. Dig. § 207.*]

2. APPEAL AND ERROR (8436*)-EFFECT ON JURISDICTION OF TRIAL COURT.

The taking of an appeal divests the trial court of jurisdiction only of those things involved in the appeal, and so not of things arising subsequent to the appeal, as a rule on the sheriff to pay over to the defendants in condemnation proceedings the amount of the judgment deposited with the sheriff by plaintiff before appealing.

[Ed. Note. For other cases. see Appeal and Error. Cent. Dig. §§ 2191, 2192; Dec. Dig. 8 436.*]

Action by the Yazoo & Mississippi Valley Railroad Company against Mrs. Noemie Teissier, wife of Charley V. Frey. Plaintiff applies to the Supreme Court for writ of prohibition against the trial judge and defendant from proceeding on a rule, pending plaintiff's appeal from the judgment in the action. Application dismissed.

See, also, 64 South. 866.

Guion, Lambremont & Hebert, of Lutcher, for relators. Pugh & Himes, of Lutcher, Burt W. Henry, of New Orleans, Louis Le Bourgeois, of Convent, and Teissier & Teissier, of New Orleans, for respondents.

PROVOSTY, J. The plaintiff railroad company having obtained a judgment against the defendant, under the eminent domain power, for the expropriation of a right of way across her plantation, deposited in the hands of the sheriff the amount of the judgment, and then obtained and perfected a suspensive appeal from the judgment. This deposit it made in conformity with article 2634 of the Civil Code, which provides:

"Art. 2634. Any appeal to the Supreme Court from the verdict of the jury and judgment of the lower court, made by either party, shall not suspend the execution of such judgment, but the payment of the amount of the verdict by the company to the owner, or the deposit thereof subject to the owner's order, in the hands of the sheriff, shall entitle the corporation to the right, title and estate of the owner in and to the land described in the petition in the same

any order in it. This exception having been overruled, the plaintiff company applied to this court for a writ of prohibition against the trial judge and the defendant, forbidding them to proceed any further in the rule; and this application is the matter now to be considered.

The application is based on the double ground-first, that the trial court is without jurisdiction to entertain the rule; and, second, that the effect of the suspensive appeal was to suspend the execution of the judg ment; that is to say, to tie up the deposit in the hands of the sheriff until the appeal should have been disposed of.

[1] This second ground involves the merits of the rule, upon which the trial court has not yet passed; if at this time and in the present proceeding we were to pass upon it, we should be exercising original jurisdiction -a thing this court is not allowed to do.

[2] The first ground is entirely without merit. It is only of those things involved in the appeal that the trial court is divested of jurisdiction by the appeal. Naturally, not of those things arising subsequently to the appeal (like the present matter), of which no court except itself could Jennings-Heypossibly have jurisdiction. Wood Oil Syndicate v. De Baillon, Judge, 113 La. 572, 37 South. 481; Jennings Heywood Oil Syndicate v. Houssiere Latreille Oil Co., 114 La. 573, 38 South. 458; Id., 116 La. 347, 40 South. 727; Jennings-Heywood Oil Syndicate v. Houssiere-Latreille Oil Co., 117 La. 960, 42 South. 467; State ex rel. v. Clarke, 33 La. Ann. 442; Morrison v. Lynch, 36 La. Ann. 612; State ex rel. Fitzpatrick v. Judge, 106 La. 719, 31 South. 313. The decision of this case was delayed mainly by the long illness of the organ of the court.

The rule nisi herein is therefore recalled. and the application dismissed, at the costs of

relator.

BREAUX, C. J., concurs in the decree.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

(107 Miss. 16)

MANNS MERCANTILE CO. v. SMITH. (No. 16,490.)

[ing salesman of appellant. When this purchase was made, appellee, A. B. Smith, was present and assented to the purchase. Smith was, at this time, one of the directors of the Smith Mercantile Company. The mer

Mr.

(Supreme Court of Mississippi. April 13, 1914. On Suggestion of Error, April 27, 1914.) 1. CORPORATIONS (§ 337*)-LIABILITY OF DI-chandise so purchased was delivered to the EXCEEDING CAPITAL Smith Mercantile Company.

RECTORS

STOCK.

DEBTS

The prohibited debts, for the incurring of which a director is made personally liable by Code 1906, § 924, providing that the amount of debts which a trading corporation may contract shall not exceed the amount of its capital stock paid in, and, in case the debts exceed that amount, the directors who contracted such debts shall be individually liable for the excess, must be enforceable claims against the corporation, which may be made a charge on its assets.

[Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 1455, 1456; Dec. Dig. § 337.*] 2. CORPORATIONS (§ 337*)-LIABILITY OF DIBECTORS-DEBTS EXCEEDING CAPITAL STOCK. To make a director personally liable under the statute, he must have assented to, or contracted, a debt officially as a director, acting concurrently with a majority of the board of

directors.

[Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 1455, 1456; Dec. Dig. § 337.*] 3. COURTS (66*)-TERMS OF COURT-CIVIL

TERMS.

Under Acts 1910. c. 105, providing that the first 12 days of each term of court in Sunflower county shall be for civil business, and the last 12 days for criminal business, the motion for new trial in a civil case could be disposed of during the last 12 days of the term, and the order overruling the motion entered on the minutes of the last 12 days, though the judgment was rendered in the first 12 days; the division of time being for convenience, and not limiting the court's power to try a case within its jurisdiction, though the judge cannot ignore the division of the time, when to do so would deprive a party of a substantial right.

Subsequently the Smith Mercantile Company was declared a bankrupt, and its estate was administered through the bankrupt court. Appellant received dividends in the settlement of the estate, but, after crediting all of said dividends to its aforesaid claim, a balance of $284.03 remained unpaid. This suit was instituted against appellee, A. B. Smith, for this balance, on the ground that he, as director of the mercantile company, contracted this debt, which was in excess of the "capital stock paid in," of said corporation; that he, having contracted such debt, is individually liable "for the excess over the amount of capital stock," by virtue of the provisions of section 924, Code of 1906, reading as follows: "The amount of debts which any trading corporation or company may contract or owe shall not exceed the amount of its capital stock paid in; and, in case the debts exceed that amount, the directors who contracted such debts shall be individually liable for the excess over the amount of capital stock, and may be sued therefor by any creditor, whether the debt be due at the time of suit brought or not, if such creditor was without notice or knowledge of the excess at the time his debt was made." Whether statutes of this character are penal statutes, in the sense that they must be strictly construed by the courts, has been the subject of some

[Ed. Note.-For other cases, see Courts, Cent. diversity of opinion, but it would seem that Dig. 88 231-242; Dec. Dig. § 66.*]

On Suggestion of Error.

the great weight of authority regards such statutes as penal in their nature. The liabil

4. CORPORATIONS (§ 337*)-LIABILITY OF DI-ity imposed by the statute is of purely statRECTORS-EXCESSIVE DEBTS CONTRACTED BY

DIRECTORS.

To have "contracted" a debt of a trading corporation in excess of its paid capital stock, so as, under Code 1906, § 924, to be personally liable therefor, a director must have been one of those directors who, concurrently acting as such and constituting a majority, consented to the

debt.

[Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 1455, 1456; Dec. Dig. § 337.*] Appeal from Circuit Court, Sunflower County; Monroe McClurg, Judge.

Action by the Manns Mercantile Company against A. B. Smith. From a judgment for defendant, plaintiff appeals. Affirmed.

Frank E. Everett, of Indianola, for appellant. J. Holmes Baker, of Indianola, for appellee.

utory origin, and we must look to the statute itself to ascertain whether or not the facts of each particular case bring the defendant within the terms of the law.

Mr. Smith was a director of the mercantile company, and was present when the debt was contracted, and inferentially, at least, assented to the contract of purchase. For present purposes it is conceded that the company was then insolvent, and the debt then made was in excess of the capital stock of the debtor company.

The first clause of section 924 of the Code, the section under consideration, limits the indebtedness trading corporations may lawfully contract, and, to enforce this policy of the law, the second clause of the section gives to any creditor of the corporation the right to sue all directors of the corporation individually "who contracted such debts."

COOK, J. The Smith Mercantile Company, a trading corporation, under the laws of this [1] It must be admitted that Mr. Smith state, was doing business at its domicile in could not make a contract binding on the cor Indianola. The manager of the company poration merely because he happened to be bought a bill of merchandise from the travel- a director. It seems clear also that debts For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

prohibited by the statute must be valid claims against the corporation, enforceable in the courts, and capable of being made a charge on the assets of the company. The manager of the company had authority to buy and sell, but there is nothing in the record to suggest that individual directors possessed the same power.

[2] Again, directors act together, and usually express their acts in the minutes of the board; but, whether so expressed or not, it must be shown that the director sought to be charged with liability assented to, or contracted, the debt officially as a director, acting concurrently with a majority of the board. Tradesman Pub. Co. v. Knoxville Car Company, 95 Tenn. 634, 32 S. W. 1097, 31 L. R. A. 593, 49 Am. St. Rep. 943. This case is the only case brought to our notice deciding the exact point involved in this case, and the rule therein announced meets with the approval of the text-writers. So far as we have been able to ascertain, the soundness of the decision has not been questioned. See Shackelford v. R. R. Co., 37 Miss. 202. It may be, and is, suggested that this rule will make it extremely difficult to fix liability upon directors of trading corporations. It is not the function of the courts to supplement legislation, or to give a construction to statutes not warranted by the terms thereof. Appeal to the lawmakers, and not to the courts, is the only remedy, if the statutes have not gone far enough to remedy existing evils.

[3] Chapter 105, Acts of 1910, fixing the terms of court in Sunflower county, provides that the first 12 days of each term shall be for civil business, and the last 12 days for criminal business. Judgment in this case was rendered during the first 12 days of the term, but the motion for a new trial was not disposed of until after the expiration of what is termed by the briefs civil term. The order overruling the motion was, however, entered on the minutes of the last 12 days. It is contended that the court could not transact any civil business after the first 12 days. The division of the time was for convenience, and in no wise limits the power of the court to try a case properly within its jurisdiction. The judge cannot ignore the division of time, when to do so would deprive a party to a law suit of any substantial right. Affirmed.

On Suggestion of Error.

[4] It is suggested that, to maintain the original opinion in this cause, it will be necessary to overrule two former decisions of this court, viz., Avery & Sons v. McClure, 94 Miss. 172, 47 South. 901, 22 L. R. A. (N. S.) 256, 19 Ann. Cas. 134, and Kimbrough v. Davies, 61 South. 697. When the original opinion was written, it was not conceived

that the cases cited were applicable to the present case, and upon a re-examination of same no reason appears why this conception should be revised.

The present case is based on section 924, Code 1906, making directors of corporations individually liable for debts of the corporation contracted by them in excess of the paid-in capital stock of the corporation. Avery & Sons v. McClure, supra, was an action in the chancery court of Lowndes county, based upon a decree of the Circuit Court of the United States awarding Avery & Sons a judgment for damages against a corporation for the infringement of a patent right owned by Avery & Sons. This bill sought to hold the stockholders and directors of the corporation liable for the amount of this decree, "the contention being that the stockholders were liable under section 909 of the Code of 1906 for the amount of any balance that may remain unpaid for the stock subscribed for by them; further, that under section 923 of the Code the directors and stockholders were liable for the amount of the capital stock withdrawn and dividends declared while the company was insolvent; further, that the directors were liable under section 924 of the Code for debts contracted in excess of the capital stock." It will be seen that the last-named cause of action is based on section 924 of the Code, and that the cause of action in the present case is based on the same section.

In Avery & Sons v. McClure the court held that the directors were not liable, for the reason that damages awarded for the infringement of a patent did not fall within the meaning of our statutes making stockholders and directors liable under certain circumstances for the debts of corporations. This was the "single question" presented to the court, and nothing more was decided. It was held that the cause of action sued on was not a debt in the sense of the statutes. The question here presented and decided was not then before the court.

In Kimbrough v. Davies, 61 South. 697, this court merely held that a stockholder of a corporation cannot withdraw the capital stock of the company until all of the debts then owing by the corporation have been paid. This was the question before the court, and this is all the court passed on. The "single question" presented by the record of the present case is: Did the director contract the debt? This question was answered in the negative, and in doing so it was not necessary to overrule, criticise, or explain Avery v. McClure or Kimbrough v. Davies, because it seemed obvious that these cases do not in any wise conflict with the conclusion reached in the present case. Suggestion of error overruled.

(107 Miss. 31)

plaintiff's leg above the knee, from which an

J. J. NEWMAN LUMBER CO. v. DANTZ- appeal is taken. The opinion states the facts.

LER. (No. 16,357.)

(Supreme Court of Mississippi. March 30, 1914. Suggestion of Error Overruled

April 20, 1914.)

1. ACTION (§ 38*)-SEPARATE CAUSES OF AC

TION-DECLARATION-INJURY TO SERVANT. The gist of a count, in a servant's action, being that during the operation of machinery a dangerous defect in it developed, and this was known to defendant, and it was then its duty to repair it, and, failing to do so, it was negligent, and responsible for damages resulting therefrom, the other averments being intended to negative the idea of plaintiff after knowing of the danger, assuming the risk of continuing the work, it is not subject to demurrer, as stating several separate and distinct causes of action.

[Ed. Note.-For other cases, see Action, Cent. Dig. 88 549, 565; Dec. Dig. § 38.*]

2. Master and Servant (§ 185*)-INJURY TO SERVANT-NEGLIGENCE OF COEMPLOYÉ.

It being the duty of a coemployé to instruct plaintiff and to keep in proper condition the machinery at which plaintiff was working, his failure to repair, after his attention was called thereto, a defect therein, which subsequently caused plaintiff's injury, was the negligence of the master.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 385-421; Dec. Dig. 8 185.*]

3. APPEAL AND ERROR (§ 1050*)-HARMLESS ERROR-ADMISSION OF EVIDENCE.

Admission of evidence, in an action for injury to an infant employé, of the fact, not averred in the declaration, that he was employed without consent of his father, while error, is not ground for reversal.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.*]

4. MASTER And Servant (§ 219*)—INJURY TO SERVANT-ASSUMPTION OF RISK.

It being the duty of plaintiff to operate a machine, and, when anything wrong in the machinery developed, to notify another, employed to make needed repairs, he, attempting, while the machinery was in motion, to pull a raveled strip off the belt, assumed an obvious risk, defeating right of recovery for injury therefrom. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 610-624; Dec. Dig. 8 219.*]

5. Trial (§ 252*)—MISLEADING INSTRUCTIONS

-APPLICATION TO EVIDENCE.

An instruction, in a servant's action for injury, to find for him, if the jury believe defendant guilty of the acts of negligence complained of in the declaration, is misleading; there being no evidence of negligence in one of the respects alleged.

[Ed. Note. For other cases, see Trial, Cent. Dig. 88 505, 596-612; Dec. Dig. § 252.*] Appeal from Circuit Court, Forrest County; Paul B. Johnson, Judge.

Action by Adolph Dantzler against the J. J. Newman Lumber Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Appellee, a negro boy about 16 or 17 years of age, was plaintiff in the court below, and appellant was defendant. There was a judgment for plaintiff for $3,000 for injuries received, which resulted in the amputation of

The fifth, sixth, and seventh assignments of error are as follows:

"Fifth. The court erred in admitting in evidence over the objection and exception of the appellant, as appears in the record at pages 123 and 124 in the cross-examination of W. J. Haynen, a witness for appellant, statements of the witness in answer to hypothetical questions propounded by counsel for appellees to the effect that, if Teel did not carry out witness' instructions as to the employment of minors, he violated instructions; such testimony being wholly irrelevant to the issue, incompetent, and calculated to prejudice the minds of the jury.

"Sixth. The court erred in overruling appellant's motion to exclude all the testimony and to instruct the jury to find for it, made after appellee rested, as appears at page 108 of the record; it appearing from the testimony as stated and specified in said motion that the proof wholly failed to support any ground of liability set forth in the declaration, and the appellee not asking the court for permission to amend the declaration, so as to support it, if possible by the proof.

"Seventh. The court erred in overruling appellant's motion, made at the conclusion of the testimony, as appears in the record at page 196, to exclude all the evidence for reasons stated in said motion, and to grant it a peremptory instruction."

The ninth instruction, asked by the defendant below and refused by the court, is as fol

lows:

"No. 9. The court further instructs the

jury, for the defendant, that if they believe from the evidence that the plaintiff was injured while attempting to pull a raveled piece or strip from the belt in question, then his own negligence caused the injury, and they should find for the defendant."

The first instruction, given for plaintiff below, is as follows:

"No. 1. The court instructs the jury, for the plaintiff, that if they believe from the evidence that the defendant is guilty of the acts of negligence complained of in the declaration, and that the injury to plaintiff resulted therefrom while he was in the exercise

of such reasonable care and caution for his own safety as would be expected of a reasonable person of his age and experience similarly situated, then they must find a verdict for the plaintiff, and assess his damages at such sum as they believe from the evidence he is entitled to receive, not exceeding the amount sued for."

S. E. Travis, of Hattiesburg, for appellant. D. E. Sullivan and Currie & Currie, all of Hattiesburg, for appellee.

COOK, J. This action was begun in the circuit court of Forrest county by appellee,

a minor, against appellant, a corporation, en- do so, the master was negligent, and respongaged in the business of operating a sawmill sible for all damages resulting from the negand planing mill. Appellee was in the employ❘ lect of its duty to appellee. The other averof appellant, and while operating a planing ments were intended to negative the idea that machine he was injured, because, as he al- appellee, after he knew of the danger, assumleges, one of the belts on the machine he was ed the risk of continuing the work. There feeding became defective and dangerous, and was no error in overruling the demurrer to appellant, having notice of this defect, failed the declaration. and refused to repair same. The case was submitted to the jury, and a verdict was rendered in favor of appellee, plaintiff below, for $3,000, and appellant, defendant below, appeals to this court.

[1] Defendant below demurred to the declaration, which demurrer was overruled, and this action of the court is the first assignment of error we will notice. The demurrer to the first count of the declaration avers that this count contains two separate and distinct causes of action, to wit: It was the duty of defendant to furnish plaintiff a safe place in which to work, and to warn and instruct plaintiff as to the dangers incident to his work; that the declaration avers appellant violated its duties to appellee in each of said regards. The second count of the declaration was demurred to upon the ground that it also stated several separate and distinct causes of action.

The first count of the declaration describes in circumstantial detail the machinery, its location, character, and the manner in whic the same was operated, and a casual reading of same would suggest the idea that several and distinct causes of action are set out thereby. We think, however, a proper analysis of this count discloses one cause of action, and that therefore the same is not duplicitous. This count, to our mind, charges that appellant was negligent in its failure to properly instruct and warn appellee of the dangers incident to the operation of the machine he was employed to operate.

The second count of the declaration, as we read it, merely reiterates a description of the machinery and the method of its operation, and then avers that, during the operation of the machine appellee was employed to run, one of the belts controlling the machine developed a defect which rendered further operation of same exceedingly dangerous; that appellee stopped the machine and called the attention of appellant's servant, designated by the master to keep the machine in a safe condition, to the defect; that this foreman, or helper, refused to repair the belt and informed him that there was no danger, and ordered him to go on with his work; and that appellee, relying on the superior judgment of this man, did continue to run the machine, and while so doing he received the injury complained of. The gist of this count is that during the operation of the machinery a dangerous defect in the machinery developed, and this was known to appellant, and it was then the duty

[2] The next contention of appellant is that the evidence, at most, shows that appellee was injured by the negligence of a fellow servant. It is earnestly contended that Mr. Youngblood, who is designated as a "helper," was a fellow servant of appellee, and that appellant is not responsible for his negligence. It was the duty of this man to instruct appellee and to keep the machinery in proper condition, and his attention was directed to the defect which the evidence shows was the cause of the injury, and his failure to repair this defect was the negligence of the master. Finkbine Lumber Co. v. Cunningham, 101 Miss. 292, 57 South. 916; Railway Co. v. Groome, 97 Miss. 206, 52 South. 703.

[3] Again, it is said that it was error to admit evidence to the effect that appellee was employed by appellant without the consent, of his father, there being no averment in the declaration to support such testimony. We think this evidence should have been excluded; but for this error alone this court would not be justified in reversing the case. The fifth assignment of error is also well taken.

The sixth and seventh assignments of error are predicated on the theory that it was the duty of the trial court to have peremp torily instructed the jury to return a verdict for defendant. We are of opinion that the court properly refused to grant the peremptory instruction.

[4] We hold that the court erred in refusing the ninth instruction asked by appellant If appellee attempted to pull a raveled strip off the belt, as one of appellant's witnesses testified, without disconnecting the machinery, he assumed a risk which was obvious, and in addition it was no part of his duty to repair the machinery; but, on the contrary, all the evidence demonstrates that he assumed a hazard voluntarily. It was his duty to operate the planer, and, when anything wrong in the machinery developed, it was the duty of appellee to notify Mr. Youngblood, who was employed by the master to make the needed repairs.

[5] The first instruction granted for plaintiff below is misleading, and should not have been given. It admonishes the jury to find for plaintiff "if they believe from the evidence that the defendant is guilty of the acts of negligence complained of in the declaration." There is no evidence to support the first count of the declaration; all the evidence shows plaintiff was properly in

« iepriekšējāTurpināt »