Atlantic & B. Ry. Co. v. Johnson

• Decision Date: 17 January 1907
• Citation: 56 S.E. 482,127 Ga. 392
• Parties: ATLANTIC & B. RY. CO. v. JOHNSON.
• Court: Georgia Supreme Court

56 S.E. 482

127 Ga. 392

ATLANTIC & B. RY. CO. v. JOHNSON.

Supreme Court of Georgia

January 17, 1907

Syllabus by the Court.

A suit was brought in the superior court of Berrien county for a personal injury, alleged and shown to have occurred in the city of Tifton, and, after a recovery had been had, and a motion for a new trial made, and while the motion was pending, the county of Tift was created and organized under an act of the Legislature, so as to include Tifton within the new county; and suits pending in the original counties from which the territory was taken to create the new county, which would properly belong in such county, were by law provided to be transferred thereto. After the motion for a new trial had been overruled, a bill of exceptions was tendered, and the clerk of the superior court of the new county was directed to send up a transcript of the record to this court. Held, that a motion to dismiss the writ of error, on the ground that the bill of exceptions and transcript should have been transmitted by the clerk of the superior court of Berrien county, will be overruled.

Where two corporations effect a consolidation, and one of them goes entirely out of existence, and no arrangements are made respecting its liabilities, the resulting consolidated corporation will, as a general rule, be entitled to all the property and answerable for all the liabilities of the corporation thus absorbed.

There was no error in overruling the demurrer to the petition as amended.

In a suit on account of personal injuries, if witnesses are put under the rule and excluded from hearing the testimony, there is no error in refusing to allow a physician summoned as a witness by the defendant to hear the plaintiff's testimony, so that he may be used as an expert witness in regard thereto. The proper practice is to examine such expert witness by propounding hypothetical questions adjusted to the evidence in the case, or some of it.

If the defendant did not procure the evidence of a witness residing out of the county of the trial by depositions or interrogatories, but relied on his promise to be present and testify, and entered upon the trial without objection, the failure of the witness to attend, because of sickness in his family, furnished no ground for a new trial.

None of the other grounds of the motion require a new trial.

Error from Superior Court, Tift County; R. G. Mitchell, Judge.

Action by Emma Johnson against the Atlantic & Birmingham Railway Company. Judgment for plaintiff. Defendant brings error. Affirmed.

In a suit for personal injuries, where witnesses are put under the rule and excluded from hearing the testimony, there is no error in refusing to allow a physician summoned as a witness by defendant to hear plaintiff's testimony so that he may be used as an expert.

Emma Johnson brought an action for damages against the Atlantic & Birmingham Railway Company, alleging as follows: On May 20 1903, she became a passenger on the train of the Tifton Thomasville & Gulf Railway Company at Tifton, Ga., to be transported to Moultrie, and paid her fare. The company did not transport her safely, as it undertook to do, and by law was bound to do; but, before the train on which she was riding had left the yards of the company at Tifton, it was derailed, and the car in which she was seated was dragged over and across the rails and cross-ties and partially overturned, throwing her violently against the seats and floor, and causing her serious and permanent injuries. The car was overturned and dragged on its side more than a quarter of a mile before the engineer discovered that a portion of his train had been derailed and wrecked. Various acts of negligence were alleged, and the extent of the injury was described. On or about December 3, 1903, the Atlantic & Birmingham Railway Company "did absorb and consolidate and merge [with] the Tifton, Thomasville & Gulf Railway Company, theretofore a railway corporation and a carrier of passengers for hire under the laws of said state, and is therefore liable for the contracts and torts, actions and doings, of the said Tifton, Thomasville & Gulf Railway Company *** prior to its absorption of and merger with the Tifton, Thomasville & Gulf Railway Company." By amendment the following allegations were made: "That the said Atlantic & Birmingham Railway Company was, on or about the 3d day of December, 1903, brought into existence by the consolidation of the Tifton, Thomasville & Gulf Railway Company [[theretofore a railroad corporation and a carrier of passengers for hire under the laws of Georgia], the Tifton & Northeastern Railway Company and the Atlantic & Birmingham Railway Company; the three said railroad companies consolidating and merging, adopting the name of, and now doing business under and in the name of, the Atlantic & Birmingham Railway Company; that in their contract of merger no provision was made for the payment of the debts or the adjustment of the liabilities theretofore existing against the said Tifton, Thomasville & Gulf Railway Company; that therefore the said Atlantic & Birmingham Railway Company became and is under operation of law liable for the contracts, torts, actions, and doings of the said Tifton Thomasville & Gulf Railway Company made or committed prior to said merger and consolidation." The defendant demurred to the petition, the demurrer was overruled, and the defendant excepted pendente lite. The answer denied the substantial allegations of negligence in the petition, and that the defendant was liable. In reference to consolidation, it contained the following statement: "That it admits as true the allegations made in the first and second paragraphs of plaintiff's petition, wherein it is alleged that defendant corporation, having an office and an agent in Berrien county, and that on or about the date named it did absorb by consolidation and merger the Tifton, Thomasville & Gulf Railway Company, and that in so far as fixed by contract or operation of law it became liable for the contracts and torts of said Tifton, Thomasville & Gulf Railway Company, but otherwise denies being responsible for the liabilities of the Tifton, Thomasville & Gulf Railway Company by contract or tort, or the actings and doings of said railway company in any way or manner whatever." It is unnecessary to set out the evidence. While it was conflicting, there was enough to show negligence in regard to the switch and the gauge of the road, and its condition at the point of derailment, and serious injury to the plaintiff. It also showed a consolidation and merger of the Atlantic & Birmingham Railway Company, the Tifton, Thomasville & Gulf Railway Company, and the Tifton & Northeastern Railway Company into the Atlantic & Birmingham Railway Company. In regard to the second-named company, it was provided, that for its common stock $555,000 of the common stock of the consolidated company was set apart; to its second-mortgage bonds $227,500 of the common stock, and $333,000 of the preferred stock of the consolidated company; and to the $555,000 of the first-mortgage bonds of that company the same amount of first-mortgaged bonds of the consolidated company. No provision was made covering any liability to the plaintiff, or for other debts or liabilities. The jury found for the plaintiff $5,000. The defendant moved for a new trial. The motion was overruled, and it excepted. A motion to dismiss the writ of error was made, which is sufficiently dealt with in the opinion.

Rosser & Brandon, J. L. Sweat, J. H. Merrill, and F. S. Harrell, for plaintiff in error.

F. G. Boatright and W. H. Griffin, for defendant in error.

LUMPKIN, J. (after stating the facts).

1. The suit was brought in Berrien county. The petition alleged that the plaintiff became a passenger on the railroad at Tifton, Ga., and that she was injured before the train left the railroad yards at that place. The evidence showed that the injury occurred at Tifton. After the date of the verdict (July 17, 1905), and while the motion for a new trial was pending, the act of August 17, 1905 (Acts 1905, p. 60), was passed. It provided for the organization of Tift county from parts of the counties of Berrien, Irwin, and Worth, with Tifton as the county site; that the election of county officers should take place on the first Wednesday in October; and that the superior court should be held on the first Mondays in November and July. By the general act concerning the organization of new counties, passed August 21, 1905 (Acts 1905, p. 46), it was provided: "That when a new county is organized, the jurisdiction of all suits pending in the county or counties from which said new county has been laid off, of which, under the Constitution and laws of this state, the new county shall have cognizance, is transferred immediately to the corresponding courts in said new county," etc. The motion for a new trial was overruled on November 17th. The bill of exceptions was signed on November 25th, and commanded the clerk of the superior court of Tift county to certify and send up a transcript of the record. A motion was made to dismiss the writ of error, on the ground that the record should have been certified and sent up by the clerk of the superior court of Berrien county, where the injury occurred. The above statement of facts shows that the motion was without merit.

2. It was contended that the defendant was not liable for a tort committed by the Tifton, Thomasville & Gulf Railway Company before the consolidation. This point was raised in several different ways, by demurrer, motion for nonsuit, and exception to the charge, and to the verdict. The suit was brought on February 11, 1904. At that time there was no Tifton, Thomasville & Gulf Railway Company to be sued....