Pittsburgh, Cincinnati & St. Louis Railway Co. v. Fierst , 96 Pa. 144 ( 1880 )

Mr. Justice Green

delivered the opinion of the court, November 22d 1880.

This was an action to recover damages for a personal injury sustained by the plaintiff, whilst engaged as a brakeman in the employ of the National Coal and Coke Company, on their coal cars. In the course of his employment he was required to serve on the train running between the works of the National Coal and Coke Company, situate a few miles west of Pittsburgh, on the line of the Pittsburgh and Steubenville Railroad and Pittsburgh. No question was made on the trial as to the negligence which resulted in the injury of the plaintiff, the only question being whether the corporation defendant, in the present action, was liable to pay the damages in any event. At the time of the plaintiff’s injury the defendant had no actual existence as a corporation. It was created under the general railroad law of this Commonwealth by articles of consolidation and merger, in pursuance of the provisions of the Act of 24th March 1865, Pamph. L. 49. The several corporations which participated in the consolidation were the Steubenville and Indiana Railroad Company, a corporation of Ohio; the Holliday’s Cove Railroad Company, a corporation of West Yirginia; and the Pan Handle Railway Company, a corporation of Pennsylvania. The certificate of organization of the Pittsburgh, Cincinnati and St. Louis Railway Company was dated March 17th 1868, and was filed in the office of the secretary of the Commonwealth on May 29th 1868. By the third section of the act above referred to, it is provided that upon the making and perfecting the agreement and act of consolidation, and filing the same, or a copy, with the secretary of the Commonwealth, the several corporations, parties thereto, shall be deemed and taken to be one corporation, by the name provided in the said agreement, possessing within this Commonwealth all the rights, privileges and franchises, and subject to all the restrictions, disabilities and duties of each of such corporations so consolidated.

The 29th of May 1868 therefore would be the date at which the defendant became duly organized as a corporate body. By a proviso to the fourth section of the act it is declared that “ all debts, liabilities and duties of either of said companies, shall thenceforth attach to said new corporation, and be enforced against it, to the same extent as if said debts, liabilities and duties had been incurred or contracted by it.” In the present action it is averred that the liability to pay the damages occasioned by the injury to the plaintiff was a liability of the Pan Handle Railway Company, and therefore under the above quoted proviso to the fourth section of the act, it became, the liability of the present defendant, and this is the sole question in this case. It becomes necessary to consider whether the Pan Handle Railway Company was liable for the injury of the plaintiff. That company was organized in the following manner: On November 6th 1867 the Pittsburgh and Steubenville railroad was sold at judicial sale under a decree of foreclosure made by this court. The purchaser at said sale was W. J. Howard, to whom a deed was made on December 7th 1867. On December -28th 1867 W. J. Howard and those for whom he purchased the Pittsburgh and Steubenville railroad, held a meeting to organize the Pan Handle Railway Company. On January 14th 1868 articles of association were signed, and on the next day, January 15th 1868, they were filed in the office of the secretary of the Commonwealth. By the second section of the Act of April 8th 1861, under which this organization was had, it is provided that a certified copy of the certificate of organization filed as aforesaid “ shall be evidence of the corporate existence of said new corporation.” It is plain, therefore, that the Pan Handle Railway Company was a lawfully constituted corporation, vested with all the corporate rights and franchises of the Pittsburgh and Steubenville Railroad Company from and after the 15th day of January 1868. Under the Act of April 8th 1861, it was held, in Wellsborough and Tioga Plankroad Co. v. Griffin, 7 P. F. Smith 417, and in Commonwealth v. Central Passenger Railway, 2 Id. 506, that the corporate franchises of a corporation sold in accordance with the provisions of that act passed to, and became vested in, the purchaser from the time of sale. The purchaser, being authorized to organize a new company, and proceeding to perform that duty according to the requirements of the act, brings into existence a new corporate body which succeeds to the corporate rights and franchises formerly owned by the company whose property has been sold, and held after the sale by the purchaser.

In the case of Wellsborough and Tioga Plankroad Co. v. Griffin, supra, it was held that the old company was not liable for an injury occurring after the sale, but that the purchaser would have been so liable if in point of fact he maintained and conducted the road. In the present case it was proved on the trial, and not contradicted, that the Pittsburgh and Steubenville Railroad was leased to the Western Transportation Company, by a contract dated December 30th 1857, for the term of twenty years, which was supplemented by a new and additional agreement, dated June 3d 1858. The Western Transportation Company was incorporated by the Act of March 15th 1856, Pamph. L. 1857, p. 76, “with power to lease, finish, equip and operate the Steubenville railroad, for such term of years and upon such conditions as may be agreed upon with said railroad company.” The lease to the Western Transportation Company included a contract by that company to finish the road and operate it. It was proved by the testimony of W. W. Card, a witness for the defence, and contradicted by no one, that he was superintendent of the Pittsburgh, Columbus and Cincinnati Railroad Company, which was composed of the Western Transportation Company and the old Steubenville and Indiana Railroad Company, and that the Western Transportation Company was in possession of the Pittsburgh and Steubenville portion of the line continuously during the period of his service. His service commenced in 1864 and continued until about October or November 1871. Against this positive proof there was not a particle of testimony. Now the plaintiff received his injury on December 21st 1867. At that time the road was in the actual possession of the Western Transportation Company. The plaintiff’s right of action accrued on the day he was injured. On that day there was no such corporation in existence as the Pittsburgh, Cincinnati and St. Louis Railway Company. No action of any kind oould have been brought against that company at that time, and we cannot understand how any legal presumption could arise that the road was in the possession of that company at that time. We can understand how a presumption would arise that the road was then in the possession of W. J. Howard, because he was the purshaser at the judicial sale of the road on November 6th 1867. Rut even that presumption would be clearly rebutted by the positive and uncontradioted proof that in point of fact the road was then in possession of the Western Transportation Company. In this state of the testimony we think the learned judge of the court below was in error in refusing to affirm the defendant’s point .that under all the evidence in the case the verdict must be for the defendant; and also in saying that there was a presumption that the road was in the possession of the Pan Handle Company at the time of the accident. We are also of the opinion that the court was in error in submitting as a question of fact whether the Pan Handle Company -was in possession at the time of the injury, when there was no evidence to that effect.

Judgment reversed, and a venire facias de novo awarded.