Cox v. Baltimore & O.S.W.R. Co.

• Decision Date: 25 November 1913
• Docket Number: No. 22,512.,22,512.
• Parties: COX v. BALTIMORE & O. S. W. R. CO.
• Court: Indiana Supreme Court

180 Ind. 495

103 N.E. 337

COX

v.BALTIMORE & O. S. W. R. CO.

No. 22,512.

Supreme Court of Indiana.

Nov. 25, 1913.

Appeal from Circuit Court, Martin County; James W. Ogdon, Judge.

Action by Iven Cox against the Baltimore & Ohio Southwestern Railroad Company. From a judgment for defendant on demurrer, plaintiff appeals. Affirmed.

Transferred from the Appellate Court under section 1405, Burns' Ann. St. 1908.

Frank E. Gilkison, of Shoals, for appellant. W. R. Gardiner, C. K. Tharp, and C. G. Gardiner, all of Washington, Ind., and F. Gwin, of Shoals, for appellee.

MYERS, J.

The error assigned in this cause is in sustaining a demurrer to appellant's complaint in one paragraph for want of facts sufficient to constitute a cause of action.

The material allegations of the complaint, quoting it in all material particulars, are: That on or about October 14, 1882, the Ohio & Mississippi Railway Company was a railroad corporation, doing a general railroad business in the state of Indiana, and for that purpose owning and operating a line of railroad extending from Cincinnati, in the state of Ohio, across the states of Indiana and Illinois to East St. Louis, in the state of Illinois, which railroad corporation had offices and agencies in Martin county, Ind. That on said date, and prior thereto, this plaintiff was in the employment of said railway company as a section hand, and while so employed, on the date aforesaid, near the city of Washington, Daviess county, Ind., he was by said railway company seriously and permanently injured in his arms, shoulders, back, and elsewhere about his body, as a result of its carelessness and negligence. That at said time plaintiff was a man aged about 22 years. That thereafter, in January, 1883, this plaintiff was preparing to bring a lawsuit against said railway company to recover damages for the said injuries received by him as aforesaid. That at said time one Peabody was president of said Ohio & Mississippi Railway Company, and as such official had his offices at the city of Cincinnati, Ohio. That at said time, in January, 1883, the Ohio & Mississippi Railway Company, acting by and through said Peabody, then and there acting as president of said railway company, made the following proposition and offer to this plaintiff for the purpose of settling his claim, to wit: “If you will forbear suing the Ohio & Mississippi Railway Company for injuring you, we will pay the doctor's bill, and for your lost time, the sum of $130, and we will in addition give you employment on this road, it making no difference who may own it, as long as you live and prove a competent and worthy man, and, if at any time you are thrown out of employment, you will receive your salary as long as you live thereafter, unless your discharge is for neglect of duty or dissipation. We will not ask you to do hard or laborious work, but will promote you from one position to another, subject to the rules of the company.” That plaintiff then and there accepted said proposition and offer in full settlement of his claim for injuries received as aforesaid, and the railway company by and through said Peabody, its president, acting for it in that behalf, then and there paid plaintiff the sum of $130 to pay his doctor bill and lost time as agreed upon, and in conformance with said agreement gave plaintiff employment upon said railroad so operated by said company, and plaintiff did forbear bringing any action against said company for damages caused by his said injuries, and has continuously since said date in all things performed his part of said contract and compromise agreement. That on the 9th day of January, 1884, he was promoted to the position of track foreman in conformance with said agreement, which position he held by virtue of said compromise agreement aforesaid continuously until his discharge as hereinafter set forth. That in the year 1893 the said Ohio & Mississippi Railway Company was consolidated with other railway companies under the name of the Baltimore & Ohio Southwestern Railway Company, and thereafter said last-named company owned and operated said railroad aforementioned from said date until about July 28, 1899. That it had offices and agencies in Martin county, Ind. That the said latter company by virtue of law became and was bound to perform the said contract of the former company with this plaintiff. That the former company did then ratify, assume, and adopt said contract as its own, and did in all things faithfully perform the same. That plaintiff in all other things faithfully performed his part of said contract with said Baltimore & Ohio Southwestern Railway Company.

And plaintiff avers that on July 28, 1899, a special master commissioner, appointed by the United States Circuit Court, in a certain action in which the Farmers' Loan & Trust Company was plaintiff, and the Baltimore & Ohio Southwestern Railway Company was defendant, by order of said court made in said cause, sold that portion of said railroad lying and being in the state of Indiana to the Cincinnati, Louisville & Vincennes Railway Company, and that part of said railroad lying and being in the state of Illinois to the St. Louis, Springfield & Vincennes Railway Company. That this plaintiff was not a party to said action, and had no notice or knowledge thereof. That on the 29th day of July, 1899, the St. Louis, Springfield & Vincennes Railway Company conveyed that part of said railroad lying and being in the state of Illinois to the Cincinnati, Louisville & Vincennes Railway Company. That on July 31, 1899, the Cincinnati, Louisville & Vincennes Railway Company was consolidated with other railroad companies into the Baltimore & Ohio Southwestern Railway Company. That on August 12, 1899, the Baltimore & Ohio Southwestern Railway Company, by quitclaim deed, and for a valuable consideration, conveyed to the defendant all of said railroad, franchise, and equipment which had belonged to the Ohio & Mississippi Railway Company prior to its consolidation with the said Baltimore & Ohio Southwestern Railway Company, and also other lines of railroad belonging to the Baltimore & Ohio Southwestern Railway Company. That said quitclaim deed conveyed to the defendant, the said the Baltimore & Ohio Southwestern Railroad Company, all contracts, rights, and interests, claims, demands, choses in action, and causes of action of every kind, legal or equitable, belonging to the Baltimore & Ohio Southwestern Railway Company. That the defendant, the Baltimore & Ohio Southwestern Railroad Company, accepted said deed, and caused the same to be recorded in the deed records of Martin county, Ind., and it then and there became the owner of said railroad. That up to said time plaintiff was regularly employed as a track foreman upon said line of railroad. That the defendant still owns and operates said railroad, and that it has offices and agencies in Martin county, Ind. That said defendant, with full knowledge of plaintiff's contract with the Ohio & Mississippi Railway Company, and the Baltimore & Ohio Southwestern Railway Company, into which it merged by virtue of said consolidation aforesaid, assumed, recognized, confirmed, adopted, and ratified said contract as its own, and by virtue thereof became and was bound to perform the same. That thereafter the defendant attempted to discharge plaintiff, whereupon plaintiff demanded his rights under said contract, and the defendant, with full knowledge thereof, and because thereof and of said demand, withdrew its attempted discharge, and directed plaintiff to continue his labor for it, under said contract. That said defendant continued to employ plaintiff as a track foreman, and did in all things perform its part of said agreement from the date it became the owner of said railroad until May 8, 1909, when it discharged plaintiff without cause, in violation of its contract aforesaid. That the said Ohio & Mississippi Railway Company and the Baltimore & Ohio Southwestern Railway Company were both on May 9, 1909, and continuously since said date, and still are, insolvent and inactive corporations, and have no longer any legal existence. That plaintiff at all times performed in good faith every part and consideration of his contract with the defendant. That at the time of his wrongful discharge, as aforesaid, plaintiff demanded of the defendant that it pay his wages in accordance with the terms of said agreement, but that said defendant has failed and refused to pay the same or any part thereof, and has wholly disregarded and broken said contract. That at the time of his wrongful discharge aforesaid the plaintiff was receiving the sum of $55 per month for his services as track foreman for the defendant under his contract aforesaid, and by the terms of said contract he was and is entitled to receive said sum continuously from said date so long as he may live. That, by reason of the injuries received by him as aforesaid, plaintiff is so crippled and maimed that he is physically unable to perform manual labor, or to obtain any employment elsewhere. That, because of the breach of the said contract by the defendant as aforesaid, plaintiff has been damaged in the sum of $15,000.

Five questions are presented by the parties on the sufficiency of the complaint: (a) Whether the president of the railway company had the authority and power to make the contract; (b) whether it is ultra vires the corporation; (c) whether, if there was power to make it, it is invalid as being in parol; (d) whether it is against public policy; and (e) whether under the allegations, if the contract was valid in its inception, it was assumed by and is binding on appellee. We consider the first four propositions in the inverse order of statement.

The statute provides that directors of railroad companies in this state shall be elected annually, and inferentially that a failure to elect may be a cause for dissolution. It also provides that there shall be a...