Atlanta, Birmingham & Atlantic Railroad v. Atlantic Coast Line Railroad , 138 Ga. 353 ( 1912 )

Hill, J.

(After stating the foregoing facts.)

1. Error is assigned because the court below overruled a general demurrer to the petition, and a motion to dismiss the case on the ground that the petition showed that the superior court of Glynn county was without jurisdiction to entertain the suit. It is insisted that the suit must be brought in the county of the principal office of the company, Fulton, and that any judgment obtained elsewhere is utterly void, unless the cause of action comes within the provision of Civil Code, § 2798. It is contended that this is not a case in which the right to sue elsewhere than in the county of the defendant’s principal place of business is given by statute. We can not agree to this contention. Our Civil Code, § 2798, broadly declares: “All railroad companies shall be sued in the county in which the cause of action originated, by any one whose person or property has been injured by such railroad company, its officers, agents, or employees, for the purpose of recovering damages for such injuries; and also on all contracts made or to be performed in the county where suit is brought; any judgment rendered in any other county than the one in which the cause so originated shall be utterly void. But if the cause of action arises in a county where the railroad company liable to suit has no agent, then suit may be brought in the county of the residence of such company.” The contract was to be performed in Glynn county, where the suit was brought. It will thus appear that the venue of the suit was properly laid in that county. For a general discussion of the history of the above section of the code, see Bracewell v. Southern Railway Company, 134 Ga. 537, 541 (68 S. E. 98).

2. Was the contract entered into between the A. & B. Railway Company and the A., B. & A.,Kailroad Company one of merger or of sale? It is insisted that the contract is one of sale, and that the fact that the A., B. & A. K. Co. was the successor in title to the original contractor, the Atlantic and Birmingham Railway Company, did not make it liable as its predecessor might have been to the plaintiff under the contract, for the reason that it was a contract between two companies, and, without more, expired when the A. & B. Ky. Co. parted with its title to the property described in that contract; and that the contract was not binding upon any subsequent assignee of the A. & B. Ky. Co. In support of this contention the plaintiff in error cites the case of Hawkins v. Central of Georgia railway Co., 119 Ga. 159 (46 S. E. 82), and refers especially to page 164, where it is said that “where a railroad has a right to sell, the- buyer is not responsible for more than the purchase-price,” and that the court held the purchaser not liable for the duty of its predecessor in title, unless it was assumed in the purchase, or cast upon it by operation of law. But we think, from a careful reading of the contract, that this is a merger and not a sale. The action of the stockholders of the A., B. & A. K. Co., authorizing the acquisition of this property, resolved to “purchase, absorb, and merge into itself the stock, property, and assets,” etc., of the A. & B. Ky. Co. It seems, therefore, that the intention of those acquiring this property was that it should be a merger. In the case of the A. & B. Ry. Co. v. Johnson, 127 Ga. 392 (56 S. E. 482, 11 L. R. A. (N. S.) 1119), it was held: “Where two corporations effect a consolidation, and one of them goes entirely out of existence, and no arrangements are made respecting its liabilities, the resulting consolidated corporation will, as a general rule, be entitled to all the property and answerable for 'all the liabilities of the corporation thus absorbed.” The petition alleged that the A. & B. By. Co. “is now by consolidation and merger” the A., B. & A.- B. B. Co., and that the terms of the contract are binding upon it. The main contention in the case is, not so much that the defendant company is not liable because of the merger, but that there is no liability at all; that whatever damage was repaired was on account of the bulkhead of the A. O. L. B. Company. But the evidence in the record does not bear out this contention. It appears that the temporary bulkhead was the only one damaged, and the only one on account of which the work was done for which a charge was made. And this being true, the recovery was proper, the repairs being made on accoupt of the temporary bulkhead coming within the terms of the contract.

3. Error is assigned, because the evidence of the plaintiff in the court below was insufficient to show that the reasonably actual cost of making the repairs, as claimed by the plaintiff, amounted to the sum found to be due by the jury, viz., $715.14; and that the cost of the material was not shown, nor its market value; and that .the expense for making the repairs on the bulkhead was placed by the contractor upon the plaintiff and not upon the defendant. A proper construction of the contract was that the plaintiff was only bound to repair damages to the fill on A street, caused by caving, settling, etc., in the event damage was occasioned by the giving way of the wharf bulkhead on Academy creek, and that any such damage not thus caused was to be repaired by or at the expense of the defendant. The evidence shows that there was no giving way or other defects in the wharf bulkhead on Academy creek,. nor any repairs necessary thereon, it remaining in good condition. The contract did not exempt the defendant from any damage occasioned by the giving way of the temporary bulkhead, which the evidence shows to have occurred. The defendant, therefore, was liable under the contract to bear the expenses of repairs for which suit was brought.

We think the evidence sustained the allegations as laid in the petition. This being true, and no evidence being offered by the defendant denying the correctness of the account sued upon, the verdict was demanded.

Judgment affirmed.

All the Justices concur.