Deep Vein Coal Co. v. Dowdle
| Decision Date | 14 May 1946 |
| Docket Number | 28183. |
| Citation | 66 N.E.2d 598,224 Ind. 244 |
| Parties | DEEP VEIN COAL CO. v. DOWDLE. |
| Court | Indiana Supreme Court |
[Copyrighted Material Omitted]
Morton C. Embree and Gerald E. Hall, both of Princeton, for appellant.
T Morton McDonald and Douglas H. McDonald, both of Princeton for appellee.
This action was instituted by the appellee against one Frank Buchanan in the year 1919 to recover damages for an assault and battery. Shortly thereafter, an admended complaint was filed making the Princeton Coal Company an added defendant. The amended complaint sought to recover against the added defendant on the theory that Buchanan was acting as the agent and servant of the company at the time of the assault and battery, and that the company was liable in damages for his wrongful acts. There was a trial and judgment for the plaintiff, which judgment was reversed as to said company by this court and a new trial ordered. See Princeton Coal Co. v. Dowdle, 1924, 194 Ind. 262, 142 N.E. 419. Thereafter, by change of venue, the cause reached the DuBois Circuit Court where the plaintiff filed his second amended complaint entitled 'Robert L. Dowdle v. Frank Buchanan, Deep Vein Coal Company, otherwise known as Princeton Coal Company,' more than ten years after the assault and battery was alleged to have been committed. The cause as to Buchanan was dismissed.
In this second amended complaint it is alleged that the Deep Vein Coal Company is a corporation engaged in the mining, producing and marketing of coal from the mine situated near the City of Princeton, Indiana, known as the Princeton mine; that the said defendant operated said mine at all times mentioned in the complaint under the name and style of 'Princeton Coal Company'; that for the purposes of evading certain legal liabilities to the employees engaged in the operation of the mine for injuries sustained through negligence or wilful misconduct in the operation of such mine, and in order to fraudulently relieve the defendant, Deep Vein Coal Company, of such liability, the company and certain of its stockholders, officers, directors and agents entered into a lease with a pretended corporation designated as the Princeton Coal Company; that shortly thereafter the Deep Vein Coal Company, its officers and agents, caused articles of incorporation to be executed for said Princeton Coal Company and filed with the Secretary of State of the State of Indiana; that the said Princeton Coal Company was at all times wholly insolvent and irresponsible; that under the terms of the pretended lease it was impossible for the Princeton Coal Company to acquire any assets or take any profit out of the operation of the mine, that on the 4th day of November, 1918, the date when plaintiff sustained the injuries complained of, the Deep Vein Coal Company had the said Buchanan in charge of the operation of the mine and in the commission of the assault and battery Buchanan was acting in the line of his duties as the agent of the Deep Vein Coal Company.
The appellant, under special appearance, filed its plea in abatement to this complaint, which plea, omitting the caption and signatures, reads as follows: 'The defendant, Deep Vein Coal Company, appearing specially and for the sole purpose of filing this its plea in abatement to the second amended complaint herein, says that it is a corporation organized and existing under and by virtue of the laws of the State of Indiana; that it has not heretofore been a party to this action, and is now, by said second amended complaint, sought to be made a party thereto for the first time; that its principal office and place of business is in the city of Terre Haute, in Vigo County, in the State of Indiana; that its president is Robert J. Smith, a resident of Terre Haute, Vigo County, Indiana; that its secretary and treasurer is M. J. McNellis, a resident of Terre Haute, Vigo County, Indiana; that said persons have been its president and its secretary and treasurer, respectively, and have been in the State of Indiana and amenable to the service of process, continuously since the filing of said second amended complaint; that no summons, or other process against the said Deep Vein Coal Company, in this action, has ever been served upon its president, presiding officer, chairman of the board of directors, or other chief officer, or upon its cashier, treasurer, director, secretary, clerk or general or special agent, or upon any person authorized to transact business in the name of the Deep Vein Coal Company, or upon any person or persons connected with, acting for, or employed by, the Deep Vein Coal Company; that said Deep Vein Coal Company has not been constructively served with summons or other process, in this action, either by publication or otherwise; and that no service of summons, or other process of any character, has ever been had against the said Deep Vein Coal Company in this action.
'Wherefore the Deep Vein Coal Company prays that this action abate as to it, and that it be not required to answer the second amended complaint herein.'
Issues were closed on said plea in abatement and a trial thereon resulted in a judgment for the appellee. Thereafter a reamended complaint was filed, which reamended complaint is substantially the same as the second amended complaint except that it sets out verbatim in the body thereof, the lease mentioned in the second amended complaint. To this reamended complaint the appellant addressed its demurrer on the ground that the same does not state facts sufficient to constitute a cause of action, and in its memorandum sets out as reasons for such contention that the said complaint shows on its face that the appellant and Princeton Coal Company were separate and independent corporations; that it does not appear that they were interlocked in any manner nor that the Princeton Coal Company was operated by the appellant as an agent or subsidiary nor is any fact set out which would constitute a conspiracy between the appellant and any other persons, or that appellant had conspired with any other persons to do an unlawful act; or that the appellant was originally sued in the wrong name; or that Frank Buchanan, in assaulting the plaintiff, was acting within the scope of his duties and authority as an agent or servant so as to make the appellant liable. This demurrer was overruled, whereupon the issues were closed by answer and a trial was had resulting in a verdict and judgment for the appellee, which judgment was reversed by this court on appeal. See Deep Vein Coal Co. v. Dowdle, 1941, 218 Ind. 495, 33 N.E.2d 981. The mandate of this court in reversing said cause was 'To vacate the judgment, and to sustain the motion for a new trial, and to sustain the appellant's motion for a new trial upon the issues formed by its plea in abatement.'
After the cause was remanded the trial court duly carried out said mandate; thereupon the appellee filed a second paragraph of reply to the plea in abatement, above set out, which was addressed to the second amended complaint. This new paragraph of reply alleged the same facts set out in the second amended complaint to the effect that the appellant was the owner and operator of the mine in question and that it had operated the same at all times mentioned in the complaint; said reply also set out the same facts as to the relationship between the appellant and the Princeton Coal Company and the execution of the lease, and further alleged that the appellant had been operating the mine in the name of the Princeton Coal Company; that appellant had been known generally as the Princeton Coal Company in the community in which the mine was situated; and that said names were used interchangeably to designate the appellant as the owner and operator of the said mine. It further alleges:
'Plaintiff says further that the original summons in this cause, issued out of the Gibson Circuit Court for the Princeton Coal Company, was duly served by the Sheriff of Gibson County on the 21st day of April, 1919 by reading the same to and within the hearing of one Joseph Applegath and by delivering a true and certified copy thereof to the said Applegath, he being the highest officer of the defendant found in said county; that said summons was forthwith turned over to the defendant, Deep Vein Coal Company and said defendant, by and through its president, one Robert J. Smith, immediately took charge of the defense of said cause to the exclusion of any officers of said Princeton Coal Company, employed attorneys to conduct the defense of said cause, which said attorneys duly appeared for the defendant in said cause and with said defendant Deep Vein Coal Company voluntarily conducted the defense thereof in the name of said Princeton Coal Company; that said defendant Deep Vein Coal Company has ever since the commencement of said action actively engaged in and conducted the defense of said cause of action in the name Princeton Coal Company.'
To this second paragraph of reply to appellant's plea in abatement, the appellant filed its demurrer for insufficiency of facts. In its memorandum thereto the appellant specifies that the allegations contained in the same do not show the commencement of an action against the appellant by the filing of a complaint and the issuance of summons thereon, nor that the appellant ever appeared to this action that what is attempted by the appellee is a substitution of parties instead of a correction of the name of a party; that the plea shows on its face that the summons was issued to the Princeton Coal Company and served on it by service upon one who is an officer in both companies; that all the questions raised by said second paragraph of reply were adjudicated against the plaintiff in the case of Deep...
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