Brown v. American Ry. Exp. Co.

Citation123 S.E. 97,128 S.C. 428
Decision Date14 May 1924
Docket Number11514.
CourtUnited States State Supreme Court of South Carolina

Appeal from Common Pleas Circuit Court of Spartanburg County; H. F Rice, Judge.

Action by M. W. Brown against the American Railway Express Company Judgment for plaintiff, and defendant appeals. Reversed, and a new trial ordered.

Evans & Galbraith, of Spartanburg, for appellant.

Lyles Daniel & Drummond, of Spartanburg, for respondent.


The plaintiff brought action July 1, 1920, against the defendant American Railway Express Company, to recover damages for alleged failure of the defendant to deliver a part of a shipment of automobile tires received by defendant's predecessor, the Southern Express Company, at Charlotte, N. C., on January 14, 1918, for transportation and delivery to plaintiff at Pacolet, S.C. From judgment on a directed verdict for the plaintiff, the defendant appeals.

The exceptions raise, substantially, two questions: (1) Was the action barred by the failure of the plaintiff to bring suit within two years and one day after a reasonable time for delivery of the property had elapsed? And (2) did the trial court err in holding that the evidence was open to no other reasonable inference than that the defendant, as the successor of the Southern Express Company, was personally liable to plaintiff for the payment of the claim in suit?

As to the first question, the record does not disclose that the allegation of defendant's answer to the effect that, if the shipment was ever delivered to defendant, it was accepted subject to the terms of a written contract, containing a stipulation limiting the time within which suits for loss, etc., should be brought, was supported by any proof adduced on the trial. In the absence of any evidence tending to establish the alleged written contract, appellant's contention as to the application of the limitation of two years and one day for bringing suit (exceptions 1, 6, and 7) must be overruled.

As to the second question, we are of the opinion that the ruling of the trial court was erroneous. Evidence was adduced tending to establish that the shipment in question was delivered to and accepted by the Southern Express Company; that at the time the shipment was received by the Southern Express Company, January 14, 1918, the defendant, American Railway Express Company, was not in existence; that the defendant was incorporated under the laws of Delaware on or about July 1, 1918; that the defendant acquired by purchase the tangible property and took over the operation of the business formerly conducted by the Southern Express Company on or about July 1, 1918; that it did not acquire all of the property of the Southern Express Company and did not assume the payment of the outstanding debts and liabilities of that company; that the Southern Express Company thereafter continued its corporate existence, with a president, treasurer, claim department, board of directors, etc.; and that at the time of the trial of this cause it owned real estate, stocks, and bonds, not included in the property transferred to the American Railway Express Company. That the foregoing evidential facts are susceptible of the inference that the liability incurred was that of the Southern Express Company, and not that of the American Railway Express Company, is not open to question. The Circuit judge seems to have conceded that the liability sued upon was incurred by the Southern Express Company, but held substantially that because the defendant had acquired and taken over the business of the Southern Express Company, it should be held liable as a matter of law for the delicts and debts of its predecessor on grounds of public policy. The public policy of a state, properly cognizable by the courts, is that derived, or derivable by clear implication, from its Constitution, statutes, and judicial decisions. Weeks v. New York Life Ins. Co. (S. C.) 122 S.E. 586, recently filed.

In Whiting v. Malden & M. R. Co., 202 Mass. 298, 88 N.E. 907, 132 Am. St. Rep. 493, it was said:

"It is very plain that, in the absence of a statutory provision on the subject, the acquisition of all the stock, property and assets of a corporation, by an individual or by another corporation, does not of itself make the new holder liable to pay the debts of the corporation."

Section 4797, vol. 3, Code 1922, makes a railroad company, formed by the consolidation of other railroad companies under the laws of this state, liable for the debts of the constituent companies. But we know of no statute, and have been cited to none, which requires that a bona fide acquisition by purchase of the assets, or the taking over of the business, of one public service corporation by another, shall of itself entail personal...

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9 cases
  • Simmons v. Mark Lift Industries, Inc.
    • United States
    • United States State Supreme Court of South Carolina
    • December 12, 2005
    ...We find the certified questions may be resolved in accordance with existing South Carolina authority. In Brown v. American Ry. Express Co., 128 S.C. 428, 123 S.E. 97 (1924), this Court held that in the absence of a statute, a successor or purchasing company ordinarily is not liable for the ......
  • State v. Broad River Power Co.
    • United States
    • United States State Supreme Court of South Carolina
    • July 9, 1929
    ...... attention to the following cases: Brown v. Am. Ry. Express Co., 128 S.C. 428, 123 S.E. 97; Davis v. Alexander, 269 U.S. 114, 46 S.Ct. ...& St. P. R. Co. v. Minneapolis, 247 U.S. 490, 38 S.Ct. 553, 62 L.Ed. 1229; American Ry. Express Co. v. Commonwealth of Ky., 273 U.S. 269, 47 S.Ct. 353, 71. L.Ed. 639; and other ......
  • Terry Packing Co. v. Southern Exp. Co.
    • United States
    • United States State Supreme Court of South Carolina
    • June 21, 1927
    ...... . .          Four. consolidated actions by the Terry Packing Company against the. Southern Express Company and American Railway Express. Company. Judgments for plaintiff, and defendant last named. appeals. Judgment affirmed in each case. . . ... 1918, and did not handle a single shipment involved in these. four actions [143 S.C. 25] .". . .          In the. case of Brown v. American Railway Express Co., 128. S.C. 428, 123 S.E. 97, the court held that there was. evidence tending to establish all of the facts upon. ......
  • Beaumont v. Branch
    • United States
    • U.S. District Court — District of South Carolina
    • October 26, 2023 Nationwide Mut. Ins. Co. v. Eagle Window & Door, Inc., 818 S.E.2d 447, 451 (S.C. 2018 (citing Brown v. Am. Ry. Express Co., 123 S.E. 97 (S.C. 1924)). Defendants argue that Beaumont fails to state a plausible claim for successor liability because Beaumont received full repayment for ......
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