Wellsborough & Tioga Plank-Road Co. v. Griffin

The opinion of the court was delivered, by Strong, J.

This was an action brought to recover damages for an injury, which the plaintiff below alleged he had sustained, in consequence of the negligent maintenance of their road by The Wellsborough and Tioga Plank-Road Company. According to -the showing of the plaintiff, the company was incorporated in the year 1851, with power to construct a plank-road. It was after-wards authorized to change the road into a’clay, gravel or turnpike road. In 1853 it was authorized by an Act of Assembly to borrow money, securing it by a mortgage upon the road and upon the corporate rights and franchises of the company; and the act declared that upon a sale of the same under the mortgage, the same should be as fully vested in the purchaser or purchasers thereof, as if he, she or they had been the original corporators, *420 and that from thenceforth all the provisions of the act of incorporation of the plank-road company, with the corporate powers conferred, and of the several laws of the Commonwealth in relation thereto, should be for the benefit of the said purchaser or purchasers. Under this authority the company borrowed money in 1853, and secured its repayment by a mortgage upon their road and corporate franchises. In 1858 the road and franchises were sold under the mortgage, and Edward Bayer became the purchaser. This sale of course gave him the rights which the company had possessed sixbject to the duties incumbent upon the mortgagors, one of which was to maintain the road in good condition while tolls were exacted for passage. And the rights of the company having passed from it by the sale, there remained no longer any duty for it to perform. Such was the condition of things when the plaintiff sustained the injury of which he complains. Edward Bayer, was the owner of the road, the owner of the right to exact tolls— and he alone was responsible for injuries resulting from the unlawful condition of the road. It was in 1860 that the plaintiff received his hurt. It was then that the road was suffered to be in an insufficient condition, if such was its state. But negligence at that time was not the fault of the company. Its power over the road had entirely ceased; and with its power, its duty to keep the road in safe and good condition had also terminated. The court below should therefore have affirmed the 4th point of the defendants, which was “ that the plaintiff having proved that more than two years before the accident and injury to the plaintiff occurred, the road and the possession of it had passed by a judicial sale to an individual (Edward Bayer), and was not owned by nor in the possession of said company, the plaintiff cannot recover in this suit.” That the facts were as stated in this point was not disputed at the trial; nor is it disputed now. The plaintiff asserted them and proved them as a part of his case. The court would probably have affirmed this proposition, had it not been for the Act of Assembly under which the mortgage to the trustees of the Bingham estate and the sale to Bayer were made. It seems to have been supposed, however, that by the purchase of the road and the mortgaged franchises of the company, the purchaser became the company itself, identical with it; or that by suit against the company his duties may be enforced. This was a grave mistake. That Act of Assembly furnishes no warrant for such an opinion. It did not make a purchaser under the mortgage authorized by it a corporation. In this respect it was unlike the later Act of April 8th 1861, “ concerning the sale of railroads, canals, turnpikes, bridges and plank-roads.” Much less did it make a purchaser a corporation, having the same name as that of the company whose property he purchased. True, Bayer acquired the rights and franchises of the mortgagors, so as to enable him to enjoy the *421 main subject of Ms purchase, which was a right to build and maintain a road, and take tolls for its use. But he did not acquire the name of the corporation, anymore than an ordinary purchaser at sheriff’s sale acquires the name of the debtor in the judgment whose property is sold. Certainly he did not extinguish his own name by the purchase. Even had it been the fact that Bayer maintained the road in the name of the former owners (of which we see no evidence), had he done business as The Wellsborough and Tioga Plank-Road Company, he must have been sued by Ms own name. But he was not sued at all. It is impossible to make anything else of this suit, than that it is an action against the identical company that was incorporated in 1851. A successor by purchase to the rights of that company is a distinct person. Such a successor is not made a corporation by the Act of 1853, and the Act of April 8th 1861 is prospective only in its operation.

What we have said disposes of the main question in this case. Had the defendants’ 4th point been affirmed, as it should have been, the verdict must have been against the plaintiff. As this puts an end to the case, it needs not that we should discuss at length the other assignments of error. It suffices to say, that the admission of the evidence mentioned in the first assignment was beneficial rather than hurtful to the defendants. Taking the change as a whole, we find nothing to justify the 2d, 3d, 4th and 5th assignments. We find it difficult to discover the precise meaning of the order appointing a sequestrator. If it gives a right to sequester the tolls or income of the road, it is erroneous. But this is of minor importance now, for as the case appears, the plaintiff cannot recover.

Judgment reversed, and a venire de novo awarded.