Boehmke v. Northern Ohio Traction Co.
| Decision Date | 10 June 1913 |
| Docket Number | 13147 |
| Citation | 88 Ohio St. 156,102 N.E. 700 |
| Parties | Boehmke v. Northernoh. Traction Co. |
| Court | Ohio Supreme Court |
Plaintiff in action for damages - Sues defendant under mistaken name - Real wrongdoer voluntarily answers - Latter thereby submits himself to the jurisdiction of the court - And may be substituted as real defendant - Question of statute of limitations.
1. Where one knows himself to be the wrongdoer sought to be made liable in an action of damages for the wrong, and voluntarily appears by his attorney and answers in the name of and ostensibly as another person who was by the plaintiff named as defendant, and served with process in the mistaken belief that the latter person did the wrong, the former person thereby submits himself to the jurisdiction of the court and may be substituted as tie real defendant in place of the nominal defendant sued mistake; and the substituted defendant will he bound by the verdict band judgment rendered against him in the case.
2. The statute of limitations will cease to run from the time the real defendant appears and answers in name of the nominal defendant.
On September 25, 1900, the plaintiff entered suit in the common pleas court of Cuyahoga county against The Akron, Bedford & Cleveland Company, for damage fOr personal injuries received by him as he was about to enter a passenger car on the interurban electric railWay, then known as The Akron, Bedford & Cleveland line. At ten o'clock of the night of August 19, 1900, he was upon a platform maintained by the railway company owning and operating the line, at the side of the track, for the use of passengers on its cars. The night was dark. The platform was level with the street which the railway crossed at this point, but the other end of the platform was four feet above the ground. The plaintiff walked forward, when the car came, to enter the smokers' compartment. The platform being shorter than the car unlighted, and having no guard rail at the forward end plaintiff stepped off and fell four feet to the ground and sustained a fracture of both bones of his right leg.
July 12, 1899 (before the date of the injury), The Akron, Bedford & Cleveland Company had been merged with the street railway company operating the Akron city lines, and the consolidated company thus formed was known as The Northern Ohio Traction Company, which on August 19th owned and operated the interurban line, but the interurban cars bore the name "Akron, Bedford & Cleveland," and the plaintiff and his attorneys believed that the company of the same name still owned and operated the railway when the petition herein was filed.
For brevity we now designate the two companies The A. B. C. and The N. O. T.
At the time of the merger the attorneys of The A. B. C. Co., Messrs Ford, Snyder & Henry, became the attorneys of The N. O. T. Co.
Summons was served on The A. B. C. Co. by copy delivered to its president, H. A. Everett, September 26, 1900. The answer to the petition was filed October 13, 1900, as the answer of The A. B. C. Co., but it was prepared and filed at the instance of The N. O. T. Co. by Ford, Snyder & Henry, formerly attorneys of the former company, now attorneys of the latter company, who signed as "attorneys for The A. B. C. Co.," though they were then under pay of The N. O. T. Co.
From that time till October 17, 1906, there were notices to, and continuances with the consent of, said attorneys, and a deposition was taken to which they appeared "as attorneys for The A. B. C. Co." On the last-named date the plaintiff moved for leave to amend the petition by substituting the name of The N. O. T. Co. as defendant in place of The A. B. C. Co. The leave was granted, The N. 'O. T. Co. objecting.
An amended petition was filed May 17, 1909, and the answer of The N. O. T. Co. was filed July 1, 1909, by Ford, Snyder & Tilden as "attorneys for The N. O. T. Co." The defenses set up are not material to the disposition of the case here. The first trial resulted in a verdict for defendant. A new trial was granted and a verdict was returned for plaintiff, upon which judgment was entered for $2,000 and costs.
Error was prosecuted to the circuit court, which reversed the judgment on the grounds: (1) That the common pleas court erred in permitting the substitution of The N. O. T. Co. for The A. B. C. Co. as defendant; and (2) "in ruling adversely to defendant on the agreed statement of facts with respect to the plea of the statute of limitations."
Messrs. Ong, Thayer & Mansfield, for plaintiff in error.
As the court of common pleas ordered the substitution of The N. O. T. Co. for The A. B. C. Co., reserving only the question of jurisdiction so to do, and no bill of exceptions Was taken thereon, the only question which arises on this point concerns the power of the court to make such substitution. Caldwell Furnace Foundry Co. v. The Peck-Williamson Heat. & Vent. Co., 6 C. C., N. S., 629, 76 Ohio St. 585; Lee v. Benedict, 82 Ohio St. 302.
The court had power to make such substitution. L. S. & M. S. Ry. Co. v. Elyria, 69 Ohio St. 414; 1 Bates' Pleading (2 ed.), 140-144.
By the consolidation of the two companies, the old ones were extinguished. Compton v. Railway Co., 45 Ohio St. 615; Lee v. Sturges, 46 Ohio St. 169; Ashley v. Ryan, 49 Ohio St. 529; Shields v. Ohio, 95 U.S. 319.
We insist that The N. O. T. Co. Was carrying on the defense of this case in the name of a fictitious party, which would not only of necessity make The N. O. T. Co. the real party to the case, but would even as to it make the judgment therein res adjudicata. Roby v. Eggers, 130 Jnd., 416; Claflin v. Fletcher, 7 F. 851; 2 Black on Judgments (2 ed.), Sec. 539.
The court had power to permit amendments to pleadings by striking out or adding the name of any party "in furtherance of justice." Section 5114, Revised Statutes.
Such amendments are proper, and take effect as of the beginning of the original case. Lilly v. Tobbein, 103 Mo. 477; School Town v. Grant, 104 Ind. 168; Railroad Co. v. Bills, 118 Ind. 221; Snider's Exrs. v. Young, 72 Ohio St. 494.
Messrs. Ford, Snyder & Tilden, for defendant in error.
The plaintiff in error says that after the consolidation of The A. B. C. Co. with another company on July 12, 1899, it was no longer in existence; that it could not sue and be sued; that it had 110 actual existence and was a mere fiction.
The old companies are declared to be in existence so far as is necessary to preserve the rights of their creditors, and they may sue and be sued. Compton v. Railway Co., 45 Ohio St. 592; Hart's v. C. H. &. D. Ry. Co., 16 O. D., N. P., 653.
The legislature having provided certain specific cases when the statute begins to run, from the discovery of the wrong, in all other cases the statute begins to run from the date of the wrong, and not from the date of its discovery, even though it may have been fraudulently concealed. Fee's Admr. v. Fee, 10 Ohio 470; Howk v. Minnick, 19 Ohio St.. 462; Williams v. Pomeroy Coal Co., 37 Ohio St. 583; State, ex rel., v. Standard Oil Co., 49 Ohio St. 137; A. T. & S. F. Ry. Co. v. Atchison Grain Co., 68 Hans., 585; Wood on Limitations, (3 ed.), Sec. 276.
Section 3384, Revised Statutes (), provides as follows:
Upon the election of the first board of directors of the company created by the agreement of consolidation, the rights privileges and franchises of such company and all the property, and debts due on account of subscriptions of stock or other things...
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