Gould v. Chespeake & Ohio Railway Co.

Heard on motion to amend petition.

The case is heard on a motion by the Lake Shore & Michigan Southern Eailway Company to strike out certain designated matter from the amended petition. A motion was made by the same defendant to strike out of the original petition, which motion was in part sustained, the court setting forth in the opinion the objections found to the several portions ordered stricken out. On a careful examination of the amended petition with reference to the portions thereof now sought to be stricken out, I am of opinion that the objections to the original petition have been sufficiently met by the amended pleading, and I will accordingly overrule the motion.

The most serious matter was the recital in paragraph “ninth” of the pleading with regard to the quo warranto suit. . But upon reflection I concluded to allow this paragraph to remain. ”

It appears that the alleged acts of the so-called ! ‘ Trunk Line Syndicate,” of which the moving defendant was a member, by *592such syndicate having' virtual control of the Hocking Yalley company, the Toledo company, and the Kanawha company, necessitated the state to intervene by proceedings in quo warranto, and break up the alleged illegal combination thus formed of the three roads, which were virtually under the dominion of the syndicate; and it is now claimed that the two defendants, formerly members of such syndicate, are continuing to carry out in a somewhat different form, after the circuit court decree, which frustrated the original purpose and object of said syndicate, the original combination. However, instead of the five members controlling the three roads to the enrichment of themselves and the impoverishment of the Kanawha company and its stockholders, the two defendant companies, namely, the Chesapeake & Ohio Railway Company and the Lake Shore & Michigan Southern Railway Company, from and after such decree, combined to effect virtually the same object. I am of opinion that the allegations as to the conspiracy of the five roads, which conspiracy was frustrated by the quo warranto proceeding, resulting in the circuit court decree, are matters of inducement to the alleged subsequent combination of the two roads, practically to accomplish the same end as designed by the original “Trunk Line Syndicate,” and I will not disturb the pleading.

The motion to strike out is accordingly overruled. Exceptions. Leave to plead within the rule.