Milwaukee Mutual Fire Insurance v. Sentinel Co.

LyoN, C. J. I. No doubt the prosecution of this action is “the exercise of a corporate right, privilege, or franchise,” and hence comes within the prohibition of the injunction, which in terms enjoins the plaintiff from exercising the same. The plaintiff being a corporation authorized by law to make insurance, and having become insolvent, the court was authorized by statute thus to enjoin it. R. S. sec. 3218. A rule of public policy may be deduced from the above statute, which is that an insolvent corporation of either of the classes mentioned in the statute may be restrained by an injunction from prolonging its existence, or embarrassing the receiver and court in closing its affairs, by exercising any corporate franchise; but that the insolvent corporation shall remain inert while the receiver closes its affairs under the direction of the court. Regarding the statute authorizing the injunction as having its foundation in considerations of public policy, in which all have an interest, it must follow, we think, that one not directly a party to the action to wind up the affairs of the corporation may avail himself of the injunction to procure a stay of proceedings in an action which the insolvent corporation is attempting to prosecute against him. . It was claimed by counsel for plaintiff that the corporation may maintain the action under sec. 1164, R. S. This section continues the existence of a corporation for three years after its dissolution, for certain specified purposes, one of which is the prosecution of actions. It provides that when any corporation shall become dissolved, as specified therein, “ the directors or managers of the affairs of such corporation at the time of its dissolution, by whatever name they may be known, shall, subject to the power of any court of competent jurisdiction to make in any case a different provision, continue to act as such during said term, and shall be deemed the legal administrators of such corporation, with full power to settle its affairs,” etc. In [211] this case the superior court, which is a court of competent jurisdiction, has made a different provision, by appointing a receiver and enjoining the corporation from doing any corporate act. Hence the section has no application here. The service and filing of the complaint herein was a corporate act, performed after the injunction issued, and in violation, thereof. Hence the complaint must be stricken out. II. The question whether the receiver may prosecute the action is in the case, has been argued by counsel, and we think should be determined for the guidance of the parties and court, although the proposition already determined necessarily results in the reversal of the order appealed. It is elementary that a right of action for mere personal injuries has not the quality of survivorship, is not assignable either at law or in equity, and does not pass to a receiver of the property and effects of the owner of such right of action. Beyond all question, a right of action for a libel belongs to this class. The mere fact that the libel has resulted in pecuniary injury to the plaintiff, and thus has diminished his estate and his capacity to pay his debts, does not make the cause of action one for an injury to property, which passes to the receiver. N otwithstanding the incidental pecuniary injury, an action for libel remains solely an action, for a personal injury, without the qualities of survivorship or assignability. Such incidental pecuniary injury is presumed to result more or less directly from every libel or slander, particularly such as furnish grounds for the recovery of special damages. Yet we never before heard it claimed that this circumstance takes such actions out of the class of actions for mere personal. torts. On this subject generally see McArthur v. G. B. & M. Canal Co. 34 Wis. 139; Noonan v. Orton, 34 Wis. 259; Hudson v. Plets, 11 Paige, 180; Beach, Receivers, sec. 196. [212] It must be held, therefore, that this action cannot be prosecuted by the receiver. By the Oowt.— The order of the circuit court is reversed, and the cause remanded with directions to strike out the complaint.