Langhorne v. Richmond City Ry.Co. 1

• Decision Date: 15 March 1894
• Citation: 19 S.E. 122
• Parties: LANGHORNE v. RICHMOND CITY RY.CO. et al.1
• Court: Virginia Supreme Court

19 S.E. 122

LANGHORNE

v.RICHMOND CITY RY.CO. et al.¹

Supreme Court of Appeals of Virginia.

March 15, 1894.

Railroad Companies — Foreclosure op Trust Deed—Extinction of Corporation—Liability op Successor.

1. The R. R. Co. was incorporated May 17, 1860, under Act March 20, 1860, in which said company was subject to chapters 56, 57, Code 1849, and not to chapter 61 of said Code. The company continued to run cars as the R. R. Co. until November 20, 1890. It executed three deeds of trust, the last two of which were foreclosed March 15, 1881, and were purchased by its stockholders and officers, who claimed to act under chapter 61, Code 1849, and business was carried on as the R. C. R. Co. On May 17, 1882, one of said purchasers, who was president of R. C. R. Co., obtained from the city of Richmond an extension of the charter of R. R. Co. to January 31 1900, and by Act March 17, 1884, the R. C. R. Co. was recognized as the same corporation as R. R. Co., under which act on October 14, 1890, the R. R. Co. conveyed to R. R. & E. Co. all its property and franchises, the last company assuming all debts and liabilities of R. R. Co. Held, in an action for personal injuries suffered in 1880, that as defendant acquired the supposed right to be a new corporation under chapter 61, Code 1849, from which it was expressly excluded by its organic act, it had no right to the exemptions therein given to new purchasers of corporate property from the debts of the old concern, and that, as the sale was only of an equity of redemption_; and not of all the property, the corporate life of the R. R. Co. was not obliterated.

2. When several companies have become consolidated, the new company may be sued directly upon a cause of action existing against one of the consolidated companies; but the declaration should show against which company it arose, and such facts as will subject the new company to the suit.

Error to circuit court of city of Richmond.

Action by Charles M. Langhorne against the Richmond Railway Company, otherwise known as the Richmond City Railway Company and the Richmond Railway & Electric Company. From a judgment sustaining a demurrer to his declaration, plaintiff brings error. Reversed.

W. P. De Saussure and James Lyons, for plaintiff in error.

Wyndham R. Meredith, for defendants in error.

FAUNTLEROY, J. The petition of Charles M. Langhorne, an infant, who sued by Jennie R. Langhorne, his next friend, complains of a judgment pronounced by the circuit court of the city of Richmond on the 22d day of June, 1891, in an action of trespass on the case therein pending, wherein he is plaintiff, and the Richmond Railway Company (also known as the Richmond City Railway Company and the Richmond Railway & Electric Company) is defendant. There was a demurrer to the declaration, which said demurrer was sustained by the court, and the suit was dismissed, with costs against the plaintiff. The question to be decided by this court, upon the record presented, is, did the circuit court err in sustaining the demurrer to the declaration, and in rendering judgment for the defendant, and dismissing the plaintiff's suit with costs against him, without a trial upon the facts and merits of the case? The plaintiff, in his declaration, alleged: That the defendant, the Richmond Railway Company, was, on the 17th day of May, 1860, under and by virtue of an act of assembly of Virginia passed the 20th day of March, 1860, created a body politic and corporate, subject to the laws of Virginia relating to corporations found in the fifty-sixth and fifty-seventh chapters of the Code of Virginia of 1849 (and not subject to the laws relating to corporations found in the sixty-first chapter of said Code), under the corporate name of the Richmond Railway Company, and under said name conducted the business of a street railway, moved by horse cars, in the streets of Richmond, and continued to do so up to and until the 20th day of November, 1890. That said company, being empowered by its charter so to do, did, on the 20th of September, 1866, execute to William F. Taylor and Thomas G. Jackson, trustees, a deed of trust conveying all its property, works, and franchises for the purpose of securing the payment of its bonds to the amount of $150,000, which lien was duly recorded in the proper clerk's office of the city of Richmond, Va.; and the said deed, up to the time of this trial, still remained on record, unreleased and of full force and effect, and the debt secured thereby unpaid. That on or about the 3d day of April, 1874, the said company executed a second deed of trust, conveying all of its said works, property, and franchises to Thomas G. Jackson and William F. Taylor, trustees, to secure the payment of a second issue of bonds, amounting to $30,000, and on the 3d of October, 1880, executed to Thomas G. Jackson and Thomas G. Peyton, trustees, a third deed of trust, conveying its said property, works, and franchises to secure the payment of its said last-mentioned issue of $30,000 of bonds, or an extension of the same. That, on the 15th of March, 1881, the said Thomas G. Jackson, as surviving trustee under the said second deed of trust, and Thomas G. Jackson and Thomas G. Peyton, trustees under the said third deed of trust (the said first lien being still outstanding and unreleased, and the debt of $150,000 se-cured thereby unpaid), made a sale of all their rights, title, and interest, by virtue of the said second and third liens, in and to the property and works of the said railway company, and the same was purchased by Channing M. Button, Parker Campbell, and J. Lawrence Schoolcraft at and for the price of $2,000— the said purchasers being the owners of the stock and bonds of the sold corporation, as well as its officers, claiming to act under and by virtue of the sixty-first chapter of the Code of 1849, from the operation of which this corporation was excepted by the terms of the act of the 20th of March, 1860, under which the said company was incorporated, —who continued to carry on the business of said corporation, subject to the said lien of the first deed of trust, styling themselves the Richmond City Railway Company. That subsequently to the 2d day of January, 1882, said Parker Campbell, styling himself president of the said Richmond City Railway Company, filed his petition with the common council of the city of Richmond, praying for an extension of the charter of the Richmond Railway Company, in pursuance whereof the said common council of the city of Richmond, on the 17th day of May, 1882, passed an ordinance extending the charter of the Richmond Railway Company, and continuing to it its powers and privileges until the 31st December, 1900. That by an act of assembly of Virginia passed the 17th day of March, 1884, the said Richmond City Railway Company was "recognized" as the same corporation that was chartered by and under the act of assembly of Virginia of March 20, 1860, aforesaid, and the ordinance thereunder, and contract with the city of Richmond of the 17th of May, 1860, and subsequent amendments thereto, as the Richmond Railway Company. That, under and by virtue of the statute in such case made and provided, the said Richmond Railway Company, the defendant aforesaid, by deed dated October 14, 1890, and recorded In the proper office on the 20th of November, 1890, conveyed to the Richmond Railway & Electric Company all its works, property, and franchises, and became consolidated with the said Richmond Railway & Electric Company, subject to the following provision in the said conveyance contained, viz.: "The foregoing conveyance is made subject to the payment by the Richmond Railway & Electric Company of all the liabilities of the parties of the first part which may not have been discharged prior to the conveyance." That the said Richmond Railway Company, also known and called by the name of the Richmond City Railway Company, defendant, being the owner and operator of a street railway, as aforesaid, running through several streets In the city of Richmond, including Main, Ninth, and Broad streets, on the 26th of June, 1880, the plaintiff, accompanied by his widowed mother and his grandmother, was a passenger on one of its cars passing westward from Main along Ninth and Broad streets, and at or near the corner of Fifth and Broad streets said car was stopped, in consequence of the ringing of the bell, in order that the plaintiff might alight, and he had proceeded to the rear end of the car, and was in the very act of alighting, when the car was suddenly started off without any warning to the plaintiff, whereby he was violently thrown to the ground, and, being an infant of tender years, to wit, of five years, he was permanently injured and rendered a_ cripple for life, in consequence of which he has suffered great and constant pain and anguish, and is incapacitated from attending to any business, and was and is still required to be at great expense in endeavoring to be healed and cured of his said hurts and injuries, to the said plaintiff's damage at $25,000. The actual damage to the plaintiff— which the record shows was very great, rendering him a hunchback, and causing him to have hip disease—is admitted by the demurrer and in fact, but effort is made to escape liability on the plea that the guilty party was the Richmond Railway Company, which, It Is claimed by the defendant, passed out of existence on the 15th March, 1881, in consequence of the sale made under a second and third mortgage, and the election of the purchasers to take a new name, to wit, the name of the Richmond City Railway Company. This was the view and the ruling of the circuit court, which we are of the opinion Is erroneous in law and in fact, and is not warranted by the pleadings and the evidence in the record.

The act of assembly of Virginia of March 20,...