
    Boehmke v. The Northern Ohio Traction Company.
    
      Plaintiff in action for damages—Sues defendant under mistaken name—Real wrongdoer voluntarily answers—Latter thereby submits himself to the jurisdiction of the court—And may be substituted as real defendant—'Question of statute of limitations.
    
    1. Where one knows himself to be the wrongdoer sought to be made liable in an action of damages for the wrong, and voluntarily appears by his attorney and answers in the name of and ostensibly as another person who was by the plaintiff named as defendant, and served with process in the mistaken belief that the latter person did the wrong, the former person thereby submits himself to the jurisdiction of the court and may be substituted as the real defendant in place of the nominal defendant sued by mistake; and the substituted defendant will be bound by the verdict and judgment rendered against him in the case.
    2. The statute of limitations will cease to run from the time the real defendant appears and answers in name of the nominal defendant.
    (No. 13147
    Decided June 10, 1913.)
    Error to the Circuit Court of Cuyahoga county.
    
      On September 25, 1900, the plaintiff entered suit in the common pleas court of Cuyahoga county against The Akron, Bedford & Cleveland Company, for damage for personal injuries received by him as he was about to enter a pássenger car on the interurban electric railway, then known as The Akron, Bedford & Cleveland line. At ten o’clock of the night of August 19, 1900, he was upon a platform maintained by the railway company owning and operating the line, at the side of the track, for the use of passengers on its cars. The night was dark. The platform was level with the street which the railway crossed at this point, but the other end of the platform was four feet above the ground. The plaintiff walked forward, when the car came, to enter the smokers’ compartment. The platform being shorter than the car, unlighted, and having no guard rail at the forward end, plaintiff stepped off and fell four feet to the ground and. sustained a fracture of both bones of his right leg.
    • July 12, 1899 (before the date of the injury), The Akron, Bedford & Cleveland Company had been merged with the street railway company operating the Akron city lines, and the consolidated company thus formed was known as The Northern Ohio Traction Company, which on August 19th owned and operated the interurban line, but the interurban cars bore the name “Akron, Bedford & Cleveland,” and the plaintiff and his attorneys' believed that the company of the same name still owned and operated the railway when the petition herein was filed
    
      For brevity we now designate the two companies The A. B. C. and The N. O. T.
    At the time of the merger the attorneys of The A. B. C. Co., Messrs. Ford, Snyder & Henry, became the attorneys of The N. O. T. Co.
    Summons was served on The A. B. C. Co. by copy delivered to its president, H. A. Everett, September 26, 1900. The answer to the petition was filed October 13, 1900, as the answer of The A. B. C. Co., but it was prepared and filed at the instance of The N. O. T. Co. by Ford, Snyder & Henry, formerly attorneys of the former company, now attorneys of the latter company, who signed as “attorneys for The A. B. C. Co.,” though they were then under pay of The N. O. T. Co.
    From that time till October 17, 1906, there were notices to, and continuances with the consent of, said attorneys, and a deposition was taken to which they appeared “as attorneys for The A. B. C. Co.” On the last-named date the plaintiff moved for leave to amend the petition by substituting the name of The N. O. T. Cot as defendant in place of The A. B. C. Co. The leave was granted, The N. O. T. Co. objecting.
    An amended petition was filed May 17, 1909, and the answer of The N. O. T. Co. was filed July 1, 1909, by Ford, Snyder & Tilden as “attorneys for The N. O. T. Co.” The defenses set up are not material to the disposition of the case here. The first trial resulted in a verdict for defendant. A new trial was granted and a verdict was returned for plaintiff, upon which judgment was entered for $2,000 and costs.
    
      Error was prosecuted to the circuit court, which reversed the judgment on the grounds: (1) That the common pleas court erred in permitting the substitution of The N. O. T. Co. for The A. B. C. Co. as defendant; and (2) “in ruling adversely to defendant on the agreed statement of facts with respect to the plea of the statute of limitations.”
    
      Messrs. Ong, Thayer & Mansfield, for plaintiff in error.
    As the court of common pleas ordered the substitution of The N. O. T. Co. for The A. B. C. Co., reserving only the question of jurisdiction so to do, and no bill of exceptions was taken thereon, the only question which arises on this point concerns the power of the court to make such substitution. Caldwell Furnace Foundry Co. v. The Peck-Williams on Heat. & Vent. Co., 6 C. C., N. S., 629, 76 Ohio St., 585; Lee v. Benedict, 82 Ohio St., 302.
    The court had power to make such substitution. L. S. & M. S. Ry. Co. v. Elyria, 69 Ohio St., 414; 1 Bates’ Pleading (2 ed.), 140-144.
    By the consolidation of the two companies, the old ones were extinguished. Compton v. Railway Co., 45 Ohio St., 615; Lee v. Sturges, 46 Ohio St., 169; Ashley v. Ryan, 49 Ohio St., 529; Shields v. Ohio, 95 U. S., 319.
    We insist that The N. O. T. Co. was carrying on the defense of this case in the name of a fictitious party, which would not only of necessity make The N. O. T. Co. the real party to the case, but would even as to it make the judgment therein res adjudicata. Roby v. Eggers, 130 Ind., 416; 
      Claflin v. Fletcher, 7 Fed. Rep., 851; 2 Black on Judgments (2 ed.), Sec. 539.
    . The court had power to permit amendments to pleadings by striking out or adding the name of any party “in furtherance of justice.” Section 5114, Revised Statutes.
    Such amendments are proper, and take effect as of the beginning of the original case. Lilly v. Tobbein, 103 Mo., 477; School Town v. Grant, 104 Ind., 168; Railroad Co. v. Bills, 118 Ind., 221; Snider’s Exrs. v. Young, 72 Ohio St., 494.
    
      Messrs. Ford, Snyder & Tilden, for defendant in error.
    The plaintiff in error says that after the consolidation of The A. B. C. Co. with another company on July 12, 1899, it was no longer in existence; that it could not sue and be sued; that it had no actual existence and was a mere fiction.
    The old companies are declared to be in existence so far as is necessary to preserve the rights of their creditors, and they may sue and be sued. Compton v. Railway Co., 45 Ohio St., 592; Harris v. C. H. & D. Ry. Co., 16 O. D., N. P., 653.
    The legislature having provided certain specific cases when the statute begins to run, from the discovery of the wrong, in all other cases the statute begins to run from the date of the wrong, and not from the date of its discovery, even though it may have been fraudulently concealed. Fee’s Admr. v. Fee, 10 Ohio, 470; Howk v. Minnick, 19 Ohio St., 462; Williams v. Pomeroy Coal Co., 37 Ohio St., 583; State, ex rel., v. Standard Oil Co., 49 Ohio St., 137; A. T. & S. F. Ry. Co. v. Atchison 
      
      Grain Co., 68 Kans., 585; Wood on Limitations, (3 ed.), Sec. 276.
   Wilkin, J.

Section 3384, Revised Statutes (the law at the time of the amalgamation), provides as follows:

Upon the election of the first board of directors of the company created by the agreement of consolidation, the rights, privileges and franchises of such company and all the property, and debts due on account of subscriptions of stock or other things in action, shall be deemed to be transferred to and vested in such new company, all property and other interests shall be effectually the property of the new company as they were of the parties to the agreement * * * but all rights of creditors, and all liens upon property of either shall be preserved unimpaired, and the respective companies may be deemed to be in existence to preserve the same; and all debts, liabilities and duties of either shall thenceforth attach to the new, and be enforced against it as if such debts, liabilities and duties had been contracted by it.

The consolidation or absorption of The A. B. C. Co. into the defendant company, though in fact a dissolution of the constituent company, did not destroy its existence in contemplation of law for one purpose. It is deemed still to have a being to answer the suit of its creditors; the legal entity survives the merger, with its property, for this purpose.

Such seems to be the rationale of the case of Compton v. Railway Co., 45 Ohio St., 592.

But the opinion in that case refers to this legal conception as a fiction of the chancellor to protect creditors.

This seems necessarily to involve the idea that the merger of the two companies is nevertheless an actual blending of the absorbed and the absorbing corporations into one composite legal person. The notion of separate entity is only a figment of the mind, not appropriate to the case at bar, for the tort-obligor here is The N. O. T. Co., not The A. B. C. Co.

The composite or consolidated company, by express declaration of the statute, is liable for the obligations of the component companies. So that if a judgment had been- taken in the- case against The A. B. C. Co., that judgment would have immediately become the obligation of The N. O. T. Co. Therefore The N. O. T. Co. had an interest in the case, to. defeat a recovery.

The determinative question is: Did the latter company appear in the case?

Stipulation No. 11 in the agreed statement of facts signed and filed in the suit by the plaintiff and the now defendant, The N. O. T. Co., gives the answer to this question. By that stipulation The N. O. T. Co. admits that the answer which its attorneys filed in the case was only ostensibly the answer of The A. B. C. Co.; that The N. O. T. Co. requested its attorneys to prepare and file the answer, and paid them for that service. The inference is that the service was rendered for The N. O. T. Co. at whose instance it was performed, and that the service was for the benefit of the latter company, which paid for the service, to defend it from liability for its own wrong.

The conclusion,, therefore, must be that the attorneys for The N. O. T. Co. who appeared only ostensibly for The A. B. C. Co., which'was sued by mistake, appeared in fact as attorneys :for and in behalf of-The N. O. T. Co.

Our statute of amendments is-very -liberal. In furtherance of justice the court-may ainehd ahy pleading, process or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party or; a mistake in any other respect. Section 11363,' General Code.

The real party who did the wrong complained of was in court. It operated the railway on which it invited the plaintiff to become a passenger, under the name A. B. C. published on the'cars. The plaintiff naturally mistook The A. B. C. Company for the owner and operator of the railway, and sued it for his damage instead of The N. O. T. Co., the real party responsible for his injury.

The court was right in amending the proceeding by substituting the name of the real defendant for whom its own attorneys appeared and made the defense for it in fact, though ostensibly for the company which was sued by mistake and ■ whose legal personality, franchises, assets and obligations it had absorbed.

Having voluntarily come into court, though in the guise of The A. B. C. Co., and filed an answer in its own defense, though ostensibly for the nominal defendant sued by mistake, The N. O. T. Co. stopped the statute of limitations from running in its favor during the long period it graciously permitted the case to be continued in the false hope that the bar of the statute would ripen.

The clever argument made by counsel for defendant in error is that The N. Q. T. Co. was free to let the plaintiff deceive himself to the end of time; it was not the defendant’s duty to “undeceive” him. True; and counsel frankly state that the defendant was aware of plaintiff’s mistake but contributed fn no way to that mistake. True, also. But that mistake became a mere irregularity in the judicial formulary of the suit when the real party came to the defense wearing the mask of the formal party. A court of law is a dangerous place for masquerade, for the law looks beneath the apparent and beholds the real.

Counsel naively, assert that The N. O. T. Co. had a perfect right to employ counsel to defend for The A. B. C. Co. Yes; but at the risk of being substituted as soon as the plaintiff discovered he had sued the wrong company and that the right one was in court defending. Counsels’ mistake was in thinking their client could enjoy the privilege of defending a lawsuit and dodge the responsibility that goes with it.

Assenting to the plaintiff’s mistake, the defendant accepted the suit and thus cured the irregularity. “Consensus tollit errorem is a maxim of the common law and the dictate of common sense,” says Broom, citing Coke, “for qui facet consentiré videtur!’

The defendant’s innocent mistake of law neatly and effectually corrected the plaintiff’s innocent mistake of fact, and repaired the defect in the title of the suit.

Judgment of the circuit court reversed and that of the common pleas affirmed.

Shauck, C. J., Johnson, Donahue, Wanamaker and Newman, JJ., concur.  