CLEVELAND, CINCINNATI, CHICAGO & ST. LOUIS R. Ca v. PREWITT. (Indiana Supreme Court, Feb. 15, 1893.) Consolidation-Liability of Consolidated Company for Negligence of Original Company.-A corporation into which consolidated railroad companies become merged becomes liable for the obligations of the original companies, and in an action against the consolidated company for the negligence of one of the original companies the complaint need not allege an express assumption of such liability. Action for Personal Injuries-Evidence-Expressions of Pain.-Exclamations or expressions of present pain or suffering up to the time of the commencement of action for personal injuries are admissible in evidence. APPEAL from Owen circuit court. John T. Dye and W. R. Harrison, for appellant. Case stated. HOWARD, J.-The complaint in this case alleges that on the 8th day of August, 1888, and prior thereto, the Cincinnati, Indianapolis, St. Louis & Chicago Railroad Company was the owner of, and operating, a railroad from Martinsville to Fairland, in this state; that on said date appellee, while a passenger on one of the trains of said company, received injuries resulting from the car in which she was seated running off the track down an embankment, and turning over, by reason of which appellee's collar-bone was broken, her spine and neck affected, and other severe and permanent injuries inflicted upon her, all of which were caused solely by the fault and negligence of said railroad company, and without fault or negligence on her part; that since said wrong and injuries were received, and on theday of1889, the said railroad company, to wit, the Cincinnati, Indianapolis, St. Louis & Chicago Railroad Company, including the road-bed and track, with all cars, locomotives, etc., together with that part leading and running from said city of Martinsville to Fairland, as aforesaid, has been consolidated and united with the defendant company herein, to wit, the Cleveland, Cincinnati, Chicago & St. Louis Railway Company, and is now being operated and run and controlled as a part of the said Cleveland, Cincinnati, Chicago & St. Louis Railway Company, under said consolidation. Wherefore, etc. A demurrer was overruled to this complaint, and appellant answered by a general denial. The cause was then submitted for trial, and the jury returned a verdict for $5000 in favor of appellee After overruling a motion for a new trial, judgment was entered, and this appeal followed. Appellant contends that the complaint is bad, because it fails to set forth the articles of consolidation of the Cincinnati, Indianapolis, St. Louis & Chicago Railroad Company-which company inflicted the injury Consolidated upon appellee-with the Cleveland, Cincinnati, company liaChicago & St. Louis Railway Company, this appel- ble for torts. lant, and because it fails to show any express an agreement by which appellant assumed liability for the act of the wrong-doer. Whether the corporation into which consolidated railroad companies become merged succeeds to the rights and privileges, and assumes or becomes liable for the debts and obligations of the original companies, is no longer an open question in this state. In Railway Co. v. Boney, 117 Ind. 501, 39 Am. & Eng. R. Cas. 168, it is said that "it is settled in this state that the act of consolidation involves implied assumption by the new company of all the valid debts and liabilities of the consolidated companies. Railroad Co. v. Jones, 29 Ind. 465; Railway Co. v. Powell, 40 Ind. 37; Railroad Co. v. Hendricks, 41 Ind. 48." In the case of Cashman v. Brownlee, 128 Ind. 266, this court, in speaking of consolidation, quotes with approval from Rorer on Railroads, (volume 1, p. 38): "The company so merged-that is, all its members-pass into and become members of the company into which it is merged. All its corporate privileges and property become vested therein, and all the liabilities of the extinct company become chargeable against the corporation into which it is merged," and refers, also, to Beach, Ry. Law, 553, and Lauman v. Railroad Co., 30 Pa. St. 42, concluding, as held in Paine v. Railroad Co., 31 Ind. 283, "that a railroad company formed by the consolidation of two companies succeeds to all the rights of each of the corporations of which it is composed," and adding, "such new company also assumes the liabilities of the old companies." The complaint in this case states "that since the said wrong and injuries were received by this plaintiff*** the said railroad company, * has been consolidated with and united with * * the defendant company, *** and is now being operated and run and controlled as a part of the said Cleveland, Cincinnati, Chicago & St. Louis Railway Company, under said consolidation." The consolidation is fully alleged, and the demurrer will not lie for want of the articles of consolidation. The suit is not based on those articles as a contract, but on the tort of the Cincinnati, Indianapolis, St. Louis & Chicago Railroad Company, now consolidated with and operated as a part of said appellant company. If there were anything in those articles by which appellant might be relieved of the liability charged, appellant could have pleaded that specialty; but appellant chose, instead, to answer by a general denial, and to go to trial as defendant to the action, and in its corporative name, as charged in the complaint. It would be in tolerable that a corporation should by consolidation become possessed of all the property rights and franchises of another company, and yet avoid all its obligations, debts, and liabili ties. We think the complaint stated a good cause of action against appellant. Verdict sup dence. Appellant also claims that the court erred in overruling the motion for a new trial; the first reason discussed being that the verdict was not supported by the evidence. ported by evi- The following agreements and admissions of the fact were made on the trial, and submitted to the court and jury. "It is agreed by the parties in the aboveentitled cause that the proof of the following facts shall be waived by the defendant on the trial, and the facts conceded to be as follows: That at the time the injury complained of was committed, August 8, 1888, the Fairland, Franklin & Martinsville Railroad was operated by and was a part of the system of what was then known as the Cincinnati, Indianapolis, St. Louis & Chicago Railroad Company, in the name of the C., I., St. L. & C. R. R. Co. Since August 8, 1888, the date of the injury, and at the time of bringing this suit, the C., I., St. L. & C. R. R. Co., including the Fairland, Franklin & Martinsville branch, has been and is now consolidated with the Cleveland, Cincinnati, Chicago & St. Louis Railway Co., and is now operated in the name of said last-named company. These facts are agreed to for the purpose of avoiding the necessity of bringing the record proof upon these points. Dye & Harrison, for defendant. Shirley & Hickam, for plaintiff." Also: "It is admitted by the defendant in the above cause that on the 8th of August, 1888, while the plaintiff was a passenger on the regular passenger car for carrying passengers on the railroad mentioned in the complaint in the above cause, between Martinsville & Franklin, Ind., having purchased a ticket, and the same having been taken from her by the conductor at a point beyond Morgantown, on the track of said railroad, said passenger car in which the plaintiff was sitting ran off and left the track of said road, and ran down an embankment, turned over, and injured plaintiff. That at the point ou said railroad track where said car so left the track, and said injury occurred, the railroad track was out of repai, and that the company operating the said railroad at the time of said injury did not use the degree of care that the law requires of a carrier of passengers, in maintaining said track in good condition, and that said injury happened by reason of the failure of said company operating said road to keep the track in such repair as the law requires. That said injury was caused without any fault or negligence of the plaintiff, and solely because of the fault and negligence of the said railroad company operating said road at the time of the injury, on which said injury occurred. Dye, Pickens & Harrison, for Def't." With these admissions, and considering what we have said in regard to the ruling of the court upon the demurrer to the complaint, we think there can be no doubt that the verdict was amply supported by the evidence. Under said admissions, and the law as to consolidation of railroad corporations, the instructions of the court were unobjectionable, and as favorable to appellant as could be given. As to the credibility of witnesses, the instructions requested by appellant were fully given by the court, in instructions, on its own motion. Appellant also claims that certain evidence was admitted going to show the condition of appellee at and after the injury, including statements of pain by her. The pressions of court allowed this testimony to go up to the time Evidence-Exof the commencement of the suit, but not later. pain. This ruling was favorable to appellant. It is proper to prove the condition of one who has been injured, and also to give exclamations or expressions of present pain or suffering. See Railroad Co. v. Spilker, 33 N. E. Rep. 280 (decided at this term). Appellant also calls our attention to other evidence which is alleged to have been improper, but gives no reasons to show its impropriety, and we see none. We find no available error in the record for which the judgment should be reversed. Judgment affirmed, with costs. Consolidation of Railroads Liability for Torts of Original Company. See note, 20 Am. & Eng. R. Cos., 589; note, 30 Id. 153. Substitution of Consolidated Company in Place of Original Defendant. — Where the original defendant company has consolidated with others so as to form a new corporation, which has assumed all the liabilities of the original companies, the new corporation may be substituted as defendant, and judgment may be rendered against it. Louisville, E. & St. L. C. R. Co. v. Summers, (Ind., April 9, 1892,) 30 N. E. Rep. 873. WEBB v. BALTIMORE & EASTERN SHORE R. Co. (Maryland Court of Appeals, March 14, 1893.) Subscription to Stock-Tender of Certificates.-A tender of certificates of stock is not a condition precedent to the right to maintain an action for the money due on a subscription to the capital stock of a company. Same-Payment of Instalment Required by Statute.-The omission of a subscriber to the capital stock of a corporation to pay an instalment of five dollars on each share subscribed, as required by statute, does not invalidate the subscription. Condition of Subscription-Completion of Railroad to Certain Point.— Where a subscriber to the capital stock of a railroad company agrees to take a certain number of shares when'the road reaches a designated point, when the road reaches that point the subscription becomes absolute and is payable on demand, and no further act of subscription is necessary in order to convert the original conditional subscription into an absolute obligation. Subscription not Within Statute of Frauds. A subscription for shares of stock in an ordinary corporation is not a contract for the sale of goods, wares or merchandise within the statute of frauds. APPEAL from Dorchester circuit court. S. T. Milbourne, for appellant. R. P. Graham and H. A. D. Stanford, for appellee. Case stated. ALVEY, C. J.--This action was brought to recover of the defendant for certain stock subscribed in the plaintiff's company. The declaration contains several of the common indebitatus counts, but the fifth count is special, and it alleges that the defendant subscribed for and agreed to take 20 shares of the capital stock of the plaintiff company, and to pay $1000 therefor, on the completion of the railroad of the company to the town of Vienna, Md., and that, although the said railroad has long since been completed to the said town of Vienna, and the said subscription is due and demandable, the defendant has not paid the same, or any part thereof. By the pleas, the defendant denied the legal existence of the contract alleged, or that he was in any manner bound thereby. The questions presented on this appeal are simply as to the admissibility of evidence, and are presented by two bills of exception taken by the defendant. At the trial it was admitted that the plaintiff was a corporation, duly organized |