Citation Numbers: 111 Ga. 10
Judges: Lumpkin
Filed Date: 6/5/1900
Status: Precedential
Modified Date: 1/12/2023
On the trial of this case, which was an action by Watson against the Albany and Northern Railway Company, the court directed a verdict for the defendant, and the plaintiff excepted. In his petition he alleged that, on or about the 18th day of October, 1895, he was in the employment of the defendant company in the capacity of a train-hand, and sustained serious personal injuries attributable to the negligence of the defendant’s engineer. As a witness in his own behalf he testified that he was injured on the day above mentioned. The ground upon which the verdict was directed against him
Under the provisions of section 2168 of the Civil Code, which were taken from the act of 1894 (Acts of 1894, p. 65), the mere filing of a petition by such purchasers is not sufficient. On the contrary, they are not now authorized to proceed with the organization of a company until after receiving a certificate of incorporation from the secretary of State. They may then' proceed to elect directors and issue stock, but not until these things have been done is it contemplated that the newly-formed corporation shall assume control and management of the property. It is tobe observed that, under paragraph 11 of section-2167 of the Civil Code, the party or parties acquiring by purchase the titleto theproperty and franchise of a railway company, sold under judicial process, may, if they choose, operate the railroad without obtaining a new charter. If they do this, they are, of course, responsible to the public and to their employees for the manner in which their business is conducted. In ease they elect to form a railway corporation, this same responsibility will rest upon them until they shall have proceeded so far in the organization of such corporation as to have duly appointed officials authorized, in behalf of the corporation, to accept from the purchasers a surrender of the property and franchises of the old company. Until this- point is reached, the liability of the purchasers must necessarily continue, and not until it is reached'can the liability of the new company begin. Where, as the law contemplates maybe done, and as is usually the case, the purchasers, in forming the new corporation, associate with themselves other persons, who will not be interested in the affairs of the railroad until the company is duly organized, and who before that time can have no voice in the man
Applying what is above said to the facts of the case in hand, it follows that on the 18th of October, 1895, the Albany and Northern Railway Company was not in existence as a duly organized corporation. It did not actually become such until the 1st of November of that year. It therefore neither had, nor could have, prior to that date, a servant or employee; and consequently the plaintiff’s allegations that he was, on October 18th, injured while in the employment of this company, and that his injuries were caused by the negligence of an engineer in its service, were not established. This being so, there was no error in directing a verdict in favor of the defendant, for the plaintiff did not, as it was incumbent upon him to do, prove his case as laid. He was at that time, under the facts in evidence, the employee of the purchasers of the property and franchises of the old Albany, Florida and Northern Railroad Company, and this fact precluded the possibility of a lawful recovery against the defendant corporation. See, in this connection, R. & D. R. Co. v. Buice, 88 Ga. 180, and Ga. R. & B. Co. v. Strauss, 110 Ga.
Judgment affirmed.