Goodwin & Jean v. American Railway Express Company

• Decision Date: 21 February 1927
• Citation: 294 S.W. 100,220 Mo.App. 695
• Parties: GOODWIN & JEAN, RESPONDENTS, v. AMERICAN RAILWAY EXPRESS COMPANY, APPELLANT. *
• Court: Missouri Court of Appeals

294 S.W. 100

220 Mo.App. 695

GOODWIN & JEAN, RESPONDENTS, v. AMERICAN RAILWAY EXPRESS COMPANY, APPELLANT. *

Court of Appeals of Missouri, St. Louis

February 21, 1927

Appeal from the Court of Common Pleas Cape Girardeau County.--Hon John A. Snider, Judge.

Judgment reversed.

Stockton & Stockton, and Oliver & Oliver for appellant.

(1) The American Railway Express Company is not liable to plaintiffs for any cause of action they may have had against the Wells-Fargo & Company Express. McAlister v. Amer. Ry Express Co., 103 S.E. 129; 10 Cyc. 308; Evans v Unity Investment Co., 196 S.W. 49; 1 Story, Equity, sec. 258; 1 Bigelow on Frauds 9; Powell v. North Mo. R. R. Co., 42 Mo. 63; Brown v. American Ry. Express Co., 123 S.E. 97. (a) The defendant American Railway Express Company was not in existence when plaintiffs' cause of action, if any they had, arose. The cause of action, if any, arose in December, 1917, and defendant was incorporated in June, 1918. (b) The transfer from Wells-Fargo & Company Express to the American Railway Express Company was bona fide, in good faith, for the full actual value of the property transferred. Powell v. North Mo. R. R. Co., 42 Mo. 63. (c) The Wells-Fargo did not dispose of nor transfer all of its property to defendant. It had and still has millions of dollars worth of property. (d) The Wells-Fargo was not at the time of the transfer nor has it been at any time since then insolvent. (e) It is still an active functioning corporation, though not engaged in the express business. (f) The transfer was not made by collusion, but against the will of the Wells-Fargo & Company as a war measure. (g) The Wells-Fargo & Company maintained its office and claim bureau in St. Louis, Missouri, for months after this alleged claim arose, for the very purpose of adjusting or disposing of just such claims, and plaintiffs did not avail themselves of the opportunity they then had of suing the Wells-Fargo & Company Express, if they saw fit so to do. The fact that they did not do so does not make the defendant liable. (h) The fact that others were paid and plaintiffs were not does not make defendant liable. Evans v. Unity Inv. Co., 196 S.W. 49. (2) The plaintiffs have no cause of action against either the Wells-Fargo & Company Express or the American Railway Express Company. They failed to bring the suit within the time provided for in the contract of shipment. The uniform express receipt used in this shipment was approved by the Interstate Commerce Commission. It provided (section 7 of Official Express Classification No. 25, effective July 1, 1917, Defendant's Exhibit No. 2) that suit must be brought "within two years and one day after delivery of the property, or, in case of failure to make delivery, then within two years and one day after a reasonable time for delivery has elapsed." That provision is binding upon respondents. Leigh Ellis v. Davis, 260 U.S. 682; Lazarus v. N. Y. Central R. R. Co., 271 F. 93, 278 F. 900; American Ry. Express Co. v. Livee, 263 U.S. 18. (3) The reasonableness of the time fixed in a contract of shipment for bringing an action for loss of or damage to the shipment, is a question of law for the court. Two years and a day is a reasonable limitation. M. K. & T. R. R. Co. v. Harriman, 227 U.S. 657; Ellis v. Davis, 260 U.S. 682. (4) Subsection F of section 206 of the Federal Transportation Act of 1920, approved February, 28, 1920, providing that the period of Federal control shall not be computed as a part of the period of limitations against carriers is not applicable in this case, because this cause of action, if any, accrued prior to the passage of the act, and this suit was filed prior to the passage of the act. The act is not retroactive. Lazarus v. N. Y. Central R. R. Co., 278 F. 900. (5) The fact that plaintiffs may not have signed the express receipt is immaterial. They accepted it and used it and are bound by its terms, including fixing a period of limitations. American Ry. Express Co. v. Lindenberg, 260 U.S. 584. (6) The cases largely relied upon by respondents, to-wit, American Railway Express Company v. Commonwealth of Kentucky, 228 S.W. 433, and Peters v. American Railway Express Company, 256 S.W. (K. C. Ct. of App.) 100, are not binding upon this court and are not in accord with the rulings of this court or fundamental principles. (7) The court erred in admitting incompetent evidence materially prejudicial to defendant's rights. Insurance Co. v. Guardiola, 129 U.S. 642; Collins v. Hoover, 218 S.W. 940; Hay v. Fire Clay Co., 179 Mo.App. 567; Freeborn v. Smith, 69 U.S. 160. (8) Plaintiffs failed to prove by competent or legal evidence that the goods sued for were never received by consignee or that they had not received compensation therefor from consignee. (9) To permit this judgment to stand would be taking defendant's property without due process of law, and therefore violative of the Fourteenth Amendment to the Constitution of the United States and violative of section 20, Article 2 of the Constitution of the State of Missouri. Ellis v. Davis, 260 U.S. 682; McAlister v. Amer. Ry. Express Co., 103 S.E. 129; Powell v. Railroad, 42 Mo. 63; Lazazus v. N. Y. Central R. R., 278 F. 900; American Ry. Express Co. v. Levee, 263 U.S. 19.

Spradling & Dalton for respondents.

(1) A prima-facie case is made by showing a delivery in good condition to the carrier and failure to deliver at destination. Cuddahy v. Railroad, 193 Mo.App. 527; Collins v. Railway, 181 Mo.App. 213; Yantz v. Railway, 174 Mo.App. 482; Dean v. Railway, 148 Mo.App. 428. (2) As to inanimate freight the carrier is an insurer against all perils, excepting only the act of God, the public enemy and the negligence of the shipper. Cunningham v. Railroad, 167 Mo.App. 273; Trumming v. Railroad, 165 Mo.App. 350; Creel v. Railroad, 137 Mo.App. 27; Creamery Company v. Railroad, 128 Mo.App. 420. (3) The appellant in this case is liable for the claims against the Wells Fargo & Company Express. Where one corporation takes over all the tangible assets and properties of another, and issues shares of stock in sole payment therefor, it takes the same subject to the debts and liabilities of the old corporation in a sum equal to the value of the assets taken. Peters v. Express Company, 256 S.W. 100, 101; Commonwealth v. Express Co., 228 S.W. 433; Sweeney v. Mining Company, 194 Mo.App. 140; Altoona v. Gas & Oil Co., 26 L. R. A. (N. S.) 651; Jennings v. Ice Company, 47 L. R. A. (N. S.) 1058; Grenell v. Gas Company, 70 N.W. 413. (4) When one corporation takes over the business of another and succeeds it in its franchises and property, it is the same entity under another name and liable at law for the debts of the other. Zachra v. Mfg. Co., 179 Mo.App. 683; Quinn v. Assurance Co., 183 Mo.App. 8; Sweeney v. Minning Co., 194 Mo.App. 140. (5) The shipment was delivered to the Wells Fargo & Company Express on the 20th day of December, 1917, and the Wells Fargo & Company Express retired from business in this State on the 30th day of June, 1918, surrendered its license to do business, closed its offices, discharged its officers and made it impossible to secure service of process on it either in personam or in rem. The fact that the Wells Fargo & Company Express left the State after a cause of action had accrued against it prevented the running of the limitation provided in section 7 of the Uniform Express Receipt from the time it left the State. Sec. 1326, R. S. 1919; Sauter v. Leveridge, 103 Mo. 615; Laughlin v. Laughlin, 237 S.W. 1024; Johnson v. Smith, 43 Mo. 499; Cook v. Holmes, 29 Mo. 61; State ex rel. v. Allen, 132 Mo.App. 98; Cobb v. Houston, 117 Mo.App. 645; 3 Elliott on Contracts, sec. 2669. (6) The words person and resident in sec. 1326, R. S. 1919, may refer to and include corporation. Sec. 7055, R. S. 1919. (7) The Wells Fargo & Company Express disposed of all its business, property and assets to appellants on the 20th day of June, 1918, but appellant did not receive a license to do business in this State until the first day of August, 1918. The appellant was a foreign corporation and did not comply with sections 9790, 9791, R. S. 1919, and was not legally in the State until a license was issued to it by the Secretary of the State. Secs. 9790, 9791, R. S. 1919; Zinc & Lead Company v. Zinc Mining Co., 221 Mo. 7; Park Davis Company v. Mullett, 245 Mo. 168; Bank v. Leeper, 121 Mo.App. 688. (8) Assuming, for the sake of argument, that appellant had a right to interpose the limitation in paragraph 7 of the Uniform Express Receipts issued to the Wells Fargo & Company Express, still, respondents contend that this action against appellant is not barred by the contract.

BECKER, J. Daues, P. J., and Nipper, J., concur.

OPINION

BECKER, J.

Plaintiff below brought suit for damages for the alleged loss of twenty-two barrels of poultry shipped by it through the Wells-Fargo & Company Express on the 20th day of December, 1917, from Delta, Missouri, to Chicago, Illinois.

The petition is based upon the alleged failure to deliver the poultry at destination, and the American Railway Express Company is made defendant upon the allegation that all of the tangible assets and properties of the Wells-Fargo & Company Express had been taken over by it upon the sole consideration of certain shares of stock of the defendant, American Railway Express Company, and that thereby the defendant took the assets of the Wells-Fargo & Company Express subject to the debts and liabilities of said corporation in a sum equal to the value of the assets taken.

From a judgment resulting in favor of plaintiff for the full amount sued for the defendant in due course appeals.

The defendant's answer contained a general denial and set up that the plaintiff was barred by the terms and conditions...