
    CHARLESTON.
    R. G. Martin, Admr., Etc. v. Culpeper Supply Co., a Corporation.
    Submitted April 12, 1921.
    Decided April 26, 1921.
    1. Corporations — Evidence As to Existence of Corporations Held Admissible Without Verified Pleading or Affidavit Denying it.
    
    Where a corporation is sued it is not necessary for it to file a verified pleading, or affidavit with a pleading denying its corporate existence, as set out in sec. 41, chap. 125 of the Code, before it will be permitted to introduce evidence to prove that it was not organized and not doing business at the time the cause of action arose, and could not have committed the wrongs complained of in the declaration, (p. 474).
    2. Same — Corporation Purchasing Assets and Assuming Liabilities of Partnership Committing Tort May Not Be Sued Therefor Though Former Partners Own its Stoelc.
    
    An action in tort cannot be maintained against a corporation on the ground that it afterwards purchased the assets and assumed the liabilities of a partnership which had committed the tort complained of, although the stock of the corporation is owned by the members of the former partnership, (p. 476).
    3. Apfeax, and Error- — Evidence Not Reviewed Where Award of New Trial Affirmed.
    
    The appellate court will not usually review the evidence where it affirms the order of the lower court awarding a new trial, unless it is necessary to ascertain the correctness of the lower court’s action, (p. 479).
    Error to Circuit Court, Grant County.
    Action by R. G. Martin, administrator of tbe estate of John Lear, deceased, against the Culpeper Supply Company. Verdict for plaintiff was set aside, a new trial awarded, and plaintiff brings error.
    
      Affirmed.
    
    
      Arch J. Welf on, and Taylor Morrison, for plaintiff in error.
    
      L. J. Foreman William MacDonald, Gonlen, Brinton & Acker, and McGlintic, Matheivs & Campbell, for defendants in error.
   Lively, Judge:

Plaintiff, administrator of John Lear, deceased, recovered a verdict for $5,000.00 for the death of his intestate, alleged to have been the result of burns caused by the negligence of defendant corporation in selling the decedent a gallon of gasoline or a mixture of gasoline and coal oil instead of coal oil, and which exploded when decedent attempted to light a fire with it. This writ of .error questions the action of the trial court in setting aside the verdict and awarding defendant a new trial.

The alleged purchase was made by John Lear on December 13, 1917, at the store of the Culpeper Supply Co. located at Bayard, Grant County, West Virginia, and the explosion occurred about 7 o’clock on the morning of December 25, 1917, Lear having arisen early and gone to the kitchen to build a fire in the cook stove. There were no eye witnesses to the accident and although there is some conflict of testimony by those who viewed the premises shortly after it happened as to the condition of the cook stove in which decedent had attempted to kindle a fire, it is reasonably certain that the kindling remaining in the fire box of the stove was burned or charred, some of the lids and the cross T had been removed and placed on the floor near the stove, and the oil can, which had contained the alleged mixture of gasoline and coal oil, was lying on the floor about three feet from the stove with the' spout torn off, the bottom blown out and a hole in the side. The only declaration of deceased as to how the explosion occurred is as follows: “I built the fire and it was not burning good, and I went to pour some more oil on it and there was an explosion and I was burned. ’ ’ This is the only direct testimony on how the accident occurred. The unfortunate man died that nigh't as the result of the severe burns he had received. He was 24 years of age, married and had been engaged in mining coal, his weekly wage averaging $35.00, which he supplemented by working at night in a barber shop.

The defendant denied that it committed the negligent act complained of in the declaration, denied that it sold coal oil, gasoline or any other article at any time to plaintiff’s decedent. To support this denial it introduced J. G. Em-mons, who stated that he was a stockholder in the defendant company, and that the company was not conducting the store of the Culpeper Supply Company on the day of the sale of the coal oil or gasoline which caused the explosion, and had no interest whatever in the business at that time, but that the Culpeper Supply Company, at the date of the reputed sale of the coal oil or gasoline, was a partnership composed of L. C., J. G-. and J. A. Emmons and I. M. Long, trading nnder the firm name of Cnlpeper Supply Companyand that this partnership sold the oil and gasoline; that the charter of the defendant corporation, which hears the same name as the trade name of the partnership, was issued by the State of Delaware in November, 1917, but the company was not admitted to transact business in West Virginia until the 2nd day of February, 1918, and was not organized until the 10th day of January, 1918, when the first meeting of the stockholders was had and the officers elected. The charter was introduced, showing that it was issued on the 28th day of November, 1917, by the Secretary of the State of Delaware, upon application of L. L. Rimlinger, M. M. Clancy and Clement M. Egner, charter members, and the minutes of the first meeting of the stockholders, bearing date' January 10, 1918, were produced, showing the organization was effected on that day, and that the store and business at Bayard, W. Va. (the store from which the oil or gasoline was purchased) and another store and business at Falling Timber, Pa. were then purchased from the copartnership in consideration of the issuance to the copartners of all the stock of the corporation. A certificate isued by the Secretary of State of West Virginia, dated February 2, 1918, admitting the foreign corporation to' hold property and transact business in this state, was admitted in evidence. The charter, by endorsement thereon, showed that it was admitted to record in the office of the clerk of the county court of Grant County on February 16, 1918. This evidence, both verbal and documentary, was introduced over the objection and exception of the plaintiff, and the action of the court in permitting this evidence to be introduced is assigned as error, on the theory that, inasmuch as the defendant had not filed a pleading or affidavit denying its corporate existence under sec. 41 of chap. 125 of the Code, it could not deny its corporate existence at the time of the negligence complained of in the declaration, or at any other time. That section reads: “Where plaintiffs or defendants sue or are sued #*# as a corporation, it shall not be necessary to prove *** the existence of such corporation, unless the pleading which puts the matter in issue be verified, or there be an affidavit filed therewith denying the existence of such corporation.” The plaintiff contends and insists that, under this statute, defendant having been summoned as a corporation, appeared and plead not guilty as such, and having failed to file a pleading or affidavit putting in issue its corporate existence, is barred from showing that -it was not a corporation at the time of the sale of the oil or gasoline, and was not the owner of the store at that time, and that it did not make the sale complained of. We do not so understand the meaning' or effect of this statute. The corporate existence is not denied, and could not be denied. At no time after suit was instituted could an affidavit or pleading be filed which would truthfully put in issue existence of the defendant as a corporation. And we do not understand such was the object of the introduction of this evidence. It was to show, and did show, that the defendant did not do the negligent act alleged to have been committed by it in the declaration. It is argued that because the defendant received a charter on November 28, 1917, and afterwards filed and recorded it in the office of the clerk of the county court on February 16, 1918, it thereby led counsel for plaintiff, when the suit was begun, to believe it owned and conducted the store at Bayard in December, 1917, and in all good conscience and fairness it should have filed a pleading denying its corporate existence at the time of the injury, or be precluded from interposing the defense that it was not then in existence, did not own or conduct the store, and did not make the sale. This is not a suit in equity. The statute relied upon does not require the defendant so to do, and we are not aware of any other statute that does. The certificate of admission of the defendant to hold property and transact business was filed and recorded as required by law, in the office of the clerk of the county court on February 16, 1918, showing that the defendant was admitted on February 2, 1918. This was sufficient to put the plaintiff upon inquiry whether this corporation was owning and operating the store at the time of the institution of the suit. The presumption would be that it was not violating the statute by doing business in the state before admission. Evidently tbe plaintiff was misled be-cansé of tbe fact tbat tbe trade name of tbe partnership and tbe name of tbe corporation was tbe same, and tbat tbe corporation bad been chartered in November, 1917, and therefore tbe supposition naturally followed tbat the corporation was tbe owner of tbe store at tbe time of tbe accident, and conducting tbe buesiness. ■ Under tbe general issue of “not guilty” it is surely permissible for a defendant to show tbat it did not commit tbe wrong, if any was committed, and to show tbe party who did do so.

Tbe declaration alleges tbat tbe defendant corporation, On the --day of December, 1917, and for a long time previous thereto, was tbe owner of a mercantile store and doing retail business in tbe town of Bayard, Grant County, West Virginia, buying and selling goods etc. It was not necessary for plaintiff to prove tbat tbe defendant was a corporation (which was not denied by affidavit or pleading), but it was necessary to prove tbat tbe corporation, owned tbe store, and, being such owner, committed tbe wrong as alleged. This necessary averment' the plaintiff entirely failed to substantiate. A crude illustration of tbe contention made may be appropriate: John Smith is sued as tbe maker of a note, and service of process is bad on tbe wrong John Smith. Is it necessary for tbe John Smith brought into court to plead that be is not John Smith before be can show tbat be did not sign the note?- Or can be show tbat be is John Smith but not tbe one who signed tbe note, and was not in. existence when tbe note was signed? We perceive no error in tbe admission of this evidence.

Plaintiff also asserts tbat bis suit should be maintained and the verdict upheld, because, although tbe defendant did not purchase tbe store and begin business until January 10, 1918, it then agreed with tbe owners of tbe store tbat it would take over tbe same and assume tbe debts and liabilities thereof as of tbe 2nd day of August, 1917, as shown by tbe minutes of the corporation. If it be true tbat tbe corporation contracted to become responsible for this claim of unliquidated damages, it does not follow tbat this suit can- be maintained against it. The plaintiff must successfully assert bis claim against those who committed tbe tort. Tbis action is not predicated upon tbe assumption by tbe defendant of tbis liability. ' Tbe contract was made for tbe protection and benefit of tbe former owners. Unless it was for tbe sole benefit of tbe plaintiff, be could not maintain any action tbereon. King v. Scott, 76 W. Va. 58. Even if tbe contract was for tbe sole benefit of tbe plaintiff be could not maintain tbis suit on that ground. There must be a sufficient.pleading basing tbe action on tbe assumption of the liability by tbe defendant. It is fundamental that tbe pleading and proof must correspond. Riley v. Jarvis, 43 W. Va. 43. Plaintiff must recover, if at all, upon tbe cáse made by tbe pleadings. Eckles v. N. & W. Ry. Co., 96 Va. 69. Tbe identity of tbe members of tbe former partnership with tbe stockholders of tbe defendant corporation is not sufficient to authorize a suit and recovery against tbe corporation, which is a distinct legal entity. Tbe ownership of tbe stock may change at any time, but tbe corporation continues its artificial legal entity and. existence. A claim against tbe stockholders individually or jointly is not an obligation against the corporation, or corporate property.

It is asserted that because tbe defendant, after having shown that it was not organized nor doing business at tbe time of the unfortunate accident, proceeded to make furtbr defense by showing that tbe sale of tbe oil or gasoline was made by a partnership trading under a like name, and by introducing evidence tending to show that by reason of contributory, negligence on tbe part of plaintiff’s decedent no liability rested upon any one for tbe accident, it has made a waiver of its defense that it was not liable because it did not make tbe sale; in other words, that tbe defenses are inconsistent. The plea of “not guilty” in an action of trespass on tbe case is broad, like non-assumpsit, and permits tbe introduction of almost any defense or defenses to show that tbe plaintiff has no right of action. “Tbe declaration in tbis action (case) sets forth specifically the circumstances which form tbe subject of tbe complaint. Tbe general issue, not guilty, is a mere traverse or denial of tbe facts so alleged; and therefore on principle, should be applied only to cases in which tbe defense rests on such denial. But here a relaxation has taken place, similar to that which prevails in assumpsit; for, under the plea now in question, a defendant is permitted not only to contest the truth of the declaration, but (with certain exceptions) to prove any matter of defense that tends to show that the plaintiff has no right of action, though such matters be in confession and avoidance of the declaration; as for example, a release given' or a satisfaction made.” Andrews Stephen’s Pleading, sec. 118, title “Trespass on the Case.” We cannot see that the defendant by continuing its defense by introducing testimony tending to show that a partnership made the sale complained of, and that no one was responsible because of contributory negligence on the part of the deceased, would thereby waive any of its defenses. The different matters of defense are not inconsistent.

Defendant insists that instruction No. 4, given at the instance of the plaintiff, is clearly erroneous, and alone justified the court in setting aside the verdict and granting a new trial. That instruction reads: ‘ ‘ The court instructs the jury that if they believe from the evidence in this case that there was no living witness to the explosion, which resulted in intestate’s death, or of the circumstances causing such explosion, the plaintiff is entitled to the presumption that John Lear was exercising due care at said time.” The criticism of the instruction is that it tells the jury that because there was no living witness then they must find that John Lear was exercising due care and was not guilty of contributory negligence, thus ignoring the silent evidence of the burned kindling, yet in the stove, removed stove lids, condition of the exploded can and where found, etc. It will be observed that the instruction says that the plaintiff is entitled to the presumption that Lear was exercising due care, there being no living witness, but does not say that this presumption could not be rebutted. It does not make the presumption conclusive on the jury, does not bind them. However, the instruction tends to mislead, and if it was the only instruction on the question of the negligence of the deceased immediately contributing to the causé of his death, we would possibly consider it reversible error. But there were other instructions given, notably' defendant’s instructions Nos. 1, 3, 7 and 8, which fully instructed the jury that contributory negligence by John Lear, if dedueible from all the evidence and circumstances, would defeat recovery, and that their verdict should be returned accordingly. Defendant’s instruction .No. 7 expressly tells the jury -that if they believe the explosion was caused by John Lear pouring coal oil, kerosene, gasoline, or any other explosive, into the kitchen stove, in which there was a fire, then the jury shall find for the defendant. Instructions must he considered together, and if the court can see that incompleteness in one has been cured by another, and that the jury could not have been misled, it will not disturb the verdict. State v. Cottrell, 52 W. Va. 363.

To sustain the action of the lower court in setting aside the verdict and granting a new trial, the defendanDasserts that it is clearly shown by the evidence, and circumstances surrounding the explosion, that John Lear’s negligence contributed to the accident. It asserts that it is conclusively shown that he .poured the oil or gasoline on a fire in the stove — an act of gross negligence. Inasmuch as the order is sustained upon another ground it is unnecessary, and perhaps improper, to review the evidence and pass upon its sufficiency to sustain the verdict. New .evidence may be produced and a different case presented on the new trial. It . is the usual practice not to review the evidence where a new trial is awarded, unless necessary. Browning v. Hoffman, 86 W. Va. 468, 103 S. E. 484.

We affirm the order awarding a new trial.

Affirmed.  