The Cleveland, Cincinnati, Chicago And St. Louis Railway Company v. Prewitt

• Decision Date: 15 February 1893
• Docket Number: 15,797
• Parties: The Cleveland, Cincinnati, Chicago and St. Louis Railway Company v. Prewitt
• Court: Indiana Supreme Court

33 N.E. 367

134 Ind. 557

The Cleveland, Cincinnati, Chicago and St. Louis Railway Company v. Prewitt

No. 15,797

Supreme Court of Indiana

February 15, 1893

Petition for a Rehearing Overruled June 13, 1893.

From the Owen Circuit Court.

Judgment affirmed, with costs.

J. T Dye and W. R. Harrison, for appellant.

W Hickam. D. E. Beem and W. S. Shirley, for appellee.

OPINION

Howard, J.

The complaint in this case alleges, that on the 8th day of August, 1888, and prior thereto, the Cincinnati, Indianapolis, St. Louis and Chicago Railroad Company was the owner of, and operating, a railroad from Martinsville to Fairland, in this State; that, on said date, appellee, while a passenger on one of the trains of said company, received injuries resulting from the car in which she was seated running off the track, down an embankment, and turning over, by reason of which appellee's collar bone was broken, her spine and neck affected, and other severe and permanent injuries inflicted upon her, all of which were caused solely by the fault and negligence of said railroad company, and without fault or negligence on her part; that since said wrong and injuries were received, and on the day of -----, 1889, the said railroad company, to wit, the Cincinnati, Indianapolis, St. Louis and Chicago Railroad Company, including the road bed and track, with all cars, locomotives, etc., together with that part leading and running from said city of Martinsville to Fairland, as aforesaid, has been consolidated with and united with the defendant company herein, to wit, the Cleveland, Cincinnati, Chicago and St. Louis Railway Company, and is now being operated and run and controlled as a part of the said Cleveland, Cincinnati, Chicago and St. Louis Railway Company, under said consolidation. Wherefore, etc.

A demurrer was overruled to this complaint, and appellant answered by a general denial. The cause was then submitted for trial, and the jury returned a verdict for five thousand dollars in favor of appellee. After overruling a motion for a new trial, judgment was entered, and this appeal followed.

Appellant contends that the complaint is bad, because it fails to set forth the articles of consolidation of the Cincinnati, Indianapolis, St. Louis and Chicago Railroad Company, which company inflicted the injury upon appellee, with the Cleveland, Cincinnati, Chicago and St. Louis Railway Company, this appellant, and because it fails to show any express agreement by which appellant assumed liability for the act of the wrong-doer.

Whether the corporation into which consolidated railroad companies become merged, succeeds to the rights and privileges, and assumes or becomes liable for the debts and obligations of the original companies, is no longer an open question in this State.

In Louisville, etc., R. W. Co. v. Boney, 117 Ind. 501, 20 N.E. 432, it is said, that "It is settled in this State that the act of consolidation involves an implied assumption by the new company of all the valid debts and liabilities of the consolidated companies. Indianapolis, etc., R. R. Co. v. Jones, 29 Ind. 465; Columbus, etc., R. W. Co. v. Powell, 40 Ind. 37; Jeffersonville, etc., R. R. Co. v. Hendricks, 41 Ind. 48."

In the case of Cashman v. Brownlee, 128 Ind. 266, 27 N.E. 560, this court, in speaking of consolidation, quotes with approval from 1 Rorer on Railroads, p. 38: "The company so merged, that is, all its members, pass into and become members of the company into which it is merged. All its corporate privileges and property become vested therein, and all the liabilities of the extinct company become chargeable against the corporation into which it is merged." And refers, also, to Beach on Railways, section 553, and Lauman v. Lebanon Valley R. R. Co., 30 Pa. 42. Concluding, as held in Paine v. Lake Erie, etc., R. R. Co., 31 Ind. 283, "That a railroad company formed by the consolidation of two companies succeeds to all the rights of each of the corporations of which it is composed," and adding: "Such new company also assumes the liabilities of the old companies."

The complaint in this case states, "That since the said wrong and injuries were received by this plaintiff * * the said railroad company * * has been consolidated with and united with the defendant company, * * and is now being operated and run and controlled as a part of the said Cleveland, Cincinnati, Chicago and St. Louis Railway Company, under said consolidation."

The consolidation is fully alleged, and the demurrer will not lie for want of the articles of consolidation. The suit is not based on those articles as a contract, but on the tort of the Cincinnati, Indianapolis, St. Louis and Chicago Railroad Company, now consolidated with and...