Nationwide Ins. v. New York, Chicago & St. Louis Rd. Co. (4 Ohio App. 2d 167, 1965)

Brown, J.

On December 21, 1964, the plaintiff, appellant herein, filed a petition on a tort claim which arose December 22, 1962, against the defendant, appellee herein, The New York, Chicago & St. Louis Eailroad Company, and on that date, púrsuant to a praecipe, summons was issued to the Sheriff of S'alidusky County for service on this defendant corporation." The return on the summons dated December 24, 1964, shows service on “the regular freight agent of said railroad company at its Fremont, Ohio, address.”

On January 21, 1965, the defendant corporation by special appearance moved for an order setting aside service of summons by reason of a written plan and joint agreement of merger, commonly known as a merger agreement, which was properly filed as an exhibit with this motion. The motion of the defendant was granted, and a final judgment entered dismissing the petition of the plaintiff, from which final order this appeal has been taken.

The merger agreement dated March 1, 1961, provided that the defendant, the New York, Chicago & St. Louis Railroad Company, as a constituent corporation, was merged with the Norfolk & Western Railway Company, the resulting corporation, and the effective merger date was October 16, 1964, and this was more than two months before the petition was filed by plaintiff and this action commenced. The New York, Chicago & St. Louis Railroad Company was incorporated under the laws of New York, Pennsylvania, Ohio, Indiana and Illinois, and therefore qualified as a domestic corporation; and the Norfolk & Western Railway Company was incorporated under the laws of Virginia, and was consequently a foreign corporation. In the merger agreement the New York, Chicago & St. Louis Railroad Company is sometimes called the Nickel Plate.

The merger agreement contains the following language:

<<# * * ijv^g separate corporate existence of Nickel Plate shall cease upon the merger date, and thereupon the constituent corporations shall become a single corporation, to wit, Norfolk, which shall survive such merger, and continue its corporate existence exclusively under, and continue to be governed by, the laws of the Commonwealth of Virginia. * * *”