Warren v. Mobile & Montgomery Railroad , 49 Ala. 582 ( 1873 )

B. F. SAFFOLD, J.

— Judgment1 was given against the plaintiff, on demurrer to her complaint. The complaint consists of many counts, and alleges, in substance, that the plaintiff, as administratrix of the estate of James F. Warren, deceased, claims of the defendant, the Mobile and Montgomery Railroad Company, damages ; because her husband and intestate, being at the time a passenger on a train belonging to the Mobile and Great Northern Railroad Company, was killed by the wrongful act, or culpable negligence, of an officer or agent of the said company, unknown to the plaintiff, in causing the engine, locomotive, and cars to fall from the track of the road; that the act was one for which the intestate might have maintained an action against the company if it. had not produced death ; that afterwards, and before the commencement of the suit, the said Mobile and Great Northern Railroad Company was consolidated and amalgamated with the Alabama and Florida Railroad Company into one company, or corporation, under the name and style of the Mobile and Montgomery Railroad Company, by an act of the General Assembly approved August 5, 1868; and that by such consolidation the defendant became liable to the satisfaction of the plaintiff’s demand. The demurrer, besides several grounds which were removed by amendment, averred that the complaint did not set out with sufficient particularity in what the wrongful act consisted, and did not show a cause of action against the defendant.

The first objection is not tenable, as the falling of the engine and cars from the track was alone sufficient to kill a passenger ; and this is very distinctly alleged. The principal objection to the complaint seems to have been that the suit ought to have been against the Mobile and Great Northern Railroad Company, eo nomine. The act of consolidation provides that the rights of the creditors of the said two companies shall not thereby be in any way affected. It continues the separate existence of the companies, as to all the rights and remedies of their creditors, and constitutes the president of the new organization, in law, as to the service of process, the president of either of the original corporations. Acts 1868, p. 82. The new company was authorized to “ dispose of any property, real or personal, held by each of said companies, and make and execute titles for the same,” and “ to sue for and recover in its name, all debts, dues, and demands, of every kind, and description whatsoever, due to each of said companiés.”

The purpose of the act, in preserving the separate existence of the companies, was not to prescribe the manner in which demands against them were to be enforced, but, out of abundant caution, to make sure that no remedy for their enforcement should be lost or impaired by the amalgamation. If a case should arise in which the new organization would not be amenable for the liability of the others, this provision saved the remedy. Besides, it set at rest any question of the dissolution of the former corporations by the consolidation. Generally, in torts, if either party die, the action is gone. The existence of the Mobile and Great Northern Railroad Company is preserved for the purpose of this suit. While the action might have been maintained against it, by service of process on the president of the defendant, it might also have been necessary to .bring a suit against the defendant to recover the assets. The laws abhors circuity of action, and there is no good reason why the defendant who is to pay may not be directly sued. Phil., Wil. & Balt. R. R. Co. v. Howard, 13 How. 333; Ready & Banks v. Tuscaloosa, 6 Ala. 327; 1 Tidd’s Prac. 9.

Note by Reporter. — On a subsequent day of the term, the appellee’s counsel having filed a petition for a rehearing, the following opinion was delivered : —

The demurrer was improperly sustained. The judgment is reversed, and the cause remanded.

B. E. SAFEOLD, J.

— The appellee insists that the complaint is subject to demurrer, because it does not show how the said appellee became responsible for the act of the Mobile and Great Northern Railroad Company. The complaint avers, in the first count, thatt he Mobile and Great Northern Railroad Company and the Alabama and Florida Railroad Company were consolidated and amalgamated into one corporation, by authority of the legislature, and that, by virtue of such amalgamation, the consolidated company became liable to the satisfaction of the plaintiff’s demand. It then avers that the consolidated company is the defendant. The act of the legislature authorizing the consolidation, and directing terms upon which it should be done, and the compliance with it by the constituent companies, would be legitimate evidence under the allegations of the complaint. A rehearing is denied.