Louisville, E. & St. L.C.R. Co. v. Utz
Decision Date | 22 December 1892 |
Citation | 32 N.E. 881,133 Ind. 265 |
Court | Indiana Supreme Court |
Parties | LOUISVILLE, E. & ST. L. C. R. CO. v. UTZ. |
OPINION TEXT STARTS HERE
Appeal from circuit court, Floyd county; C. P. Ferguson, Judge.
Action by William C. Utz, administrator, against the Louisville, Evansville & St. Louis Consolidated Railroad Company for injuries which caused the death of plaintiff's decedent, a brakeman in the employ of defendant. From a judgment for plaintiff, defendant appeals. Affirmed.A. Dowling, for appellant. Jewett & Jewett and Jewett & Funk, for appellee.
The appellee, as administrator of the estate of William P. Woods, deceased, sued to recover damages for the death of his intestate, who was killed while serving the appellant as a brakeman. This appeal is from a judgment awarding him damages. Three questions only are discussed, viz. the sufficiency of the complaint, the sufficiency of the evidence, and the correctness of an instruction given. So much of the complaint as is necessary to present the questions argued is as follows:
The specific objection urged against the complaint is that “it fails to allege that the company knew, or had the means or opportunity of knowing, that the coupling pin was defective.” The appellee contends that the question is not properly in the record, and that, even conceding that the complaint is defective, the appellant is not entitled to avail itself of any error that may have been committed by the trial court in overruling a demurrer to it. The suit was originally commenced against the Louisville, Evansville & St. Louis Railroad Company. That company appeared, demurred to the complaint, and the demurrer was overruled. The then defendant reserved an exception to this ruling. Subsequently, it was properly shown to the court that that company, with certain other corporations, had been consolidated under the name of the Louisville, Evansville & St. Louis Consolidated Railroad Company, and the consolidated company was thereupon substituted as defendant. The appellee contends that the substituted defendant could not avail itself of any error that may have been committed in ruling on this demurrer; that, if it wished to test the sufficiency of the complaint, it should, after its substitution, have filed a demurrer, obtained a new ruling, and reserved an exception. By the act of consolidation, the several companies ceased to exist as separate entities. Their rights and franchises were merged in the new corporation, which thus succeeded to their several rights and liabilities. The consolidated company was rightfully substituted as the defendant, because it then stood as the only representative of the former defendant, and was, in legal contemplation, itself that defendant, as it was also each of the other corporations...
To continue reading
Request your trial