46 Ind. App. 299 | Ind. Ct. App. | 1910
Appellee sued appellant, together with the Wabash-Logansport Traction Company and Wabash River Traction Company. No service was had on the last two defendants, and they made no appearance. The cause was tried and judgment was rendered against appellant in favor of appellee. The material facts shown by the record, and about which there appears to be no dispute, are as follows: Prior to March 1, 1904, the Wabash-Logansport Traction Company and the Wabash River Traction Company owned and operated a traction line through Wabash, Miami and Cass counties; that on said date said companies sold and transferred to appellant said traction line, together with its equipment, right of way, franchise and all property of whatever description; that on April 12, 1903, appellee was an employe of the Wabash River Traction Company; that on said day, while performing his duties as track greaser, he became unconscious and fell beside said track, with his arm extending over one of the rails; that while in this position and condition a car owned and operated by the Wabash River Traction Company ran upon him and injured him. Sufficient facts are shown clearly to warrant the jury in finding that the injury was the result of the' negligence of the employes operating said car. This latter, however, is not conceded by appellant, and it earnestly insists that these facts do not warrant a personal judgment against it for said injuries,
By this act any incorporated street railroad company owning, operating or possessing a franchise to own and operate a street railroad, may sell, lease or otherwise transfer its property, franchise and assets of every description and wheresoever situated, or any portion thereof to any company authorized to acquire it by purchase, lease or otherwise, upon authorization by a vote of a majority in value of all the shares of said company.
Section three of said act (§5654, supra), provides: “All rights of creditors and liabilities for damages and all liens or incumbrances upon the property or franchise sold or transferred pursuant hereto shall continue unimpaired, and may be enforced as against such property or franchises as if said sale or transfer had not been made.” It will be observed that this statute provides only for the sale of the property of a corporation, and in no manner provides for a merger of two or more companies. The merger or consolidation of street railroad companies is authorized by an act of the General Assembly of 1899 (Acts 1899 p. 378, §§5468i-5468o Burns 1901). A comparison of these two acts readily discloses the difference between a merger of two companies and the sale of the property of one to another. As a further evidence that the act under consideration was not intended as authorizing mergers, the General Assembly of 1903 (Acts 1903 p. 181, §5690' Burns 1908), passed another act amending section six of the act of 1899, supra, authorizing mergers.
This is a somewhat unusual proceeding, but the simplest one that suggests itself to us as a proper and efficient administration of the statute in question. As we view the case, the rules governing the liability of the survivor of merged corporations do not apply to this case, since the Wabash-Logansport Traction Company and the Wabash River Traction Company were in no sense merged into appellant company.
It appears from the record that the injury to appellee was caused by wantonness; but, however grievous the fault, it was one for which appellant was in noway personally responsible;
Judgment reversed, with instructions to grant a new trial, with leave to appellee to amend his complaint, and for further proceedings not inconsistent with this opinion.