State ex rel. Nicomen Boom Co. v. North Shore Boom & Driving Co. ( 1909 )

Mount, J.

(dissenting) — I dissent. The majority opinion is probably correct upon the questions discussed, but Mr. Abel was more than a mere attorney in the case. He was one of three stockholders in the corporation which did the damage. He did not hold the office of director, but he was the attorney for the corporation from the time it was incorporated. He was an active, interested party, and advised the officers to do the things complained of, if he did not directly participate therein himself. The findings in the contempt proceeding recite:

“That since the entry of the judgment in the superior court of the state of Washington for Pacific county, the defendants North River Boom & Driving Company, John W. Kleeb, John F. Hobi, its officers, and W. H. Abel as its attorney, have constantly maintained and operated said boom and other structures of the North Shore Boom & Driving Company upon the location of the Nicomen Boom Company in said North river. . . . and each of them have constantly since said date . . . boomed logs coming down said North river and thereby interfered with the boom and booming structures of the said Nicomen Boom Company in said North river . . . and that defendants and each of them have constantly interfered with the relator’s boom,” etc.

Under this finding and other conceded facts, it cannot be said that Mr. Abel merely as attorney in this particular case advised the officers of the corporation in good faith. Nor can it be said that he was a mere passive stockholder. He was clearly an active, interested party, advising and directing the officers of the corporation in his interest at all times. Under these facts it seems that he should be held liable in civil damages equally with those whom he directed and assisted by his advice. The mere fact that he was an attorney in the case ought not to release him. If so, it is unfortunate for the other two stockholders that they were not also attorneys for their own company in this particular case.

Dunbar, J., concurs with Mount, J.