Geiger v. Sanitary Farm Dairies

Hadlam, J. 1. Plaintiff was injured while walking across Seventh street in St. Paul at about 5:30 a. m. on October 26, 1918. Plaintiff approached Seventh street on Maria avenue from the south. A street car was coming from the east. Plaintiff passed'-in front of the car, and when he was about at the street-car track was struck by something and injured. He thought the street car struck him and sued the street railway company and failed. He then sued these defendants and recovered a verdict. Defendants appeal. The testimony given in this case by the streetcar motorman was that a truck belonging to defendant Sanitary Farm Dairies, also coming from the east, passed the street car on its right shortly before the ear arrived at Maria avenue and struck plaintiff as he crossed the tracks. The evidence of the conductor tends to corroborate that of the motorman. There is evidence that the truck was traveling at from 25 to 30 miles an hour, that it was still very dark and the truck had no lights, and that the driver gave no signal of its approach. Apparently the driver of the truck did not see plaintiff at all. This evidence is sufficient to sustain the finding of the jury that plaintiff was struck by the truck and that the driver of the truck was negligent. When the driver of a vehicle approaches a street intersection, where his view is obstructed so that he cannot see travelers who may be approaching from the intersecting street, he must be on the lookout for such cross traffic, and must have his vehicle under such control that he may stop it as occasion requires. See G. S. 1913, § 2632. 2. The next question is as to the liability of the defendant Sanitary Farm Dairies, Incorporated. Defendant Sanitary Farm Dairies is a South Dakota corporation. In 1918 it was operating a dairy business in St. Paul. On January 28, 1919, at a meeting of the stockholders, a resolution was passed submitting to their attorney the question of “the advisability of dissolving this corporation and organizing in lieu of it a Minnesota corporation.” In February, 1919, at a meeting of the stockholders, a resolution was passed [238] to sell all the corporate assets to a new ’corporation to be organized under the laws of Minnesota by the stockholders of the South Dakota corporation, the Minnesota corporation, as part of the consideration for the sale, to “assume and agree to pay and satisfy all debts, claims and demands whatsoever of the said South Dakota corporation.” At the same meeting a second resolution was passed, reciting the foregoing, and reciting that the debts of the company amounted to $32,000, and that the value of the property above the debts was $71,000, and it was resolved that the corporation sell all its assets to the new corporation for $103,000, the sum of $71,000 to be paid in stock, the balance to be paid by an assumption by the new corporation of “all existing indebtedness and liabilities of this corporation,” and the president and secretary were authorized to “transact any and all business involved in the deal above mentioned, and all deeds, transfers, contracts, documents and instruments that might be necessary and legal and proper to carry out the object and purpose of this resolution.” Thereupon the defendant Sanitary Farm Dairies, Incorporated, was incorporated in Minnesota. A contract was made in accordance with the foregoing resolutions and signed only by the secretary. The contract consisted of a proposal by the South Dakota corporation to sell all its property for the sum of $71,000 in stock of the Minnesota corporation and the assumption by the Minnesota corporation of “all debts and obligations of whatsoever character” of the South Dakota corporation, and an acceptance of the proposal by the Minnesota corporation. The transfer was carried out under its provisions. The South Dakota corporation deeded all its assets to the Minnesota corporation, and that corporation is now in possession of them and is operating the business. The stockholders of both corporations were the same, and the officials were practically the same. It seems clear that the new corporation assumed the liability of the old corporation to plaintiff. The assumption of “all * * * obligations of whatsoever character” includes a liability arising in tort. Billmyer Lumber Co. v. Merchants Coal Co. 66 W. Va. 696, 66 S. E. 1073, 26 L.R.A.(N.S.) 1101; Silver King Coalition Mines Co. v. Silver King [239] Consol. Mining Co. 204 Fed. 166, 122 C. C. A. 402, Ann. Cas. 1918B, 571. 3. It was not competent to prove by parol evidence that the parties understood or agreed that only specific debts aggregating $32,000 were assumed. The rule that parol evidence may not be received to vary a written instrument, does not apply where either of the parties between whom the question arises is a stranger to the instrument. Second Nat. Bank v. Donald, 56 Minn. 491, 58 N. W. 269. But it does apply where the one not a party to the instrument bases his claim upon it and seeks to enforce a right which the instrument gives him. Minneapolis, St. P. & S. S. M. Ry. Co. v. Home Ins. Co. 55 Minn. 236, 56 N. W. 815, 22 L.R.A. 390; Current v. Muir, 99 Minn. 1, 108 N. W. 870. Such a person is in no proper sense a stranger to the instrument. Sayre v. Burdick, 47 Minn. 367, 50 N. W. 245. 4. The fact that the preliminary contract was not signed by the president of the South Dakota corporation is not important. The contract was carried out and the transaction fully consummated. 5. Defendants object to a hypothetical question propounded to plaintiff’s medical witness, on the ground that it assumes some facts not in evidence. No such objection was made on the trial. The time to make objection of this preliminary character is when the question is asked, to the end that inaccuracy, if any, may be corrected. If not made then, the objection cannot be raised for the first time on appeal. Spino v. Butler Bros. 113 Minn. 326-331, 129 N. W. 590. 6. The jury returned a verdict for $4,500. The trial court reduced the amount to $3,500. Plaintiff was 63 years old and was earning $2.30 a day. His head was cut. His collar bone was broken. There was a vicious union, the bones' united at an angle. He cannot normally raise his right arm. The shoulder joint has about a 40 per cent function. He has permanent paralysis of a facial nerve, and suffers head-.aehe and dizziness. The damages are not excessive. Order affirmed.