Peters v. American Ry. Express Co.

• Citation: 256 S.W. 100
• Decision Date: 03 December 1923
• Docket Number: No. 14847.,14847.
• Parties: PETERS v. AMERICAN RY. EXPRESS CO.
• Court: Missouri Court of Appeals

256 S.W. 100

PETERS v. AMERICAN RY. EXPRESS CO.

No. 14847.

Kansas City Court of Appeals, Missouri.

December 3, 1923.

Appeal from Circuit Court, Cole County; H. J. Westhues, Judge.

"Not to be officially published."

Action by D. W. Peters against the American Railway Express Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Dumm & Cook, of Jefferson City, for appellant.

D. W. Peters, of Jefferson City, for respondent.

ARNOLD, J.

This is an action to recover the value of a suit case and contents which were delivered to the Wells Fargo Express Company at Jefferson City, Mo., on the 16th day of January, 1918, for transportation and delivery to plaintiff at St. Louis, but which were never delivered to him there, or elsewhere. The suit was begun in a justice court in Cole county, where it was tried and judgment rendered for plaintiff in the sum of $50. An appeal was taken to the circuit court of said county, where it was tried on January 19, 1922, to the court without the aid of a jury, on the following agreed statement of facts:

"That the plaintiff, David W. Peters, was, on or about the 16th day of January, 1918, the owner of a certain suit case containing a Knight Templar uniform and equipage, together with a scabbard containing the sword thereto attached. That on or about the said 16th day of January, 1918, the plaintiff, David W. Peters, caused this suit case, containing said uniform and attachments, to he delivered to the Wells Fargo Express Company at Jefferson City, Mo., to be transported for hire by said company, and delivered by it to plaintiff at St. Louis, Mo. That said salt case, its contents, and attachments were duly received and accepted by said Wells Fargo Express Company on said 16th day of January, 1918, and that said express company, its servants, agents, and assigns, have not, up to the present time, delivered said suit case, contents, and attachments to plaintiff at St. Louis, Mo., or elsewhere. That the value of said suit case, contents, and attachments as aforesaid was $50, which sum has never been paid to plaintiff by the said express company or its assigns, and that, if plaintiff is entitled to recover, he should recover that amount, with interest thereon from and after the date of the judgment in the justice of the peace court. That at the time this shipment was made the Wells Fargo Express Company was a foreign corporation, duly authorized under the laws of Missouri to engage in the transportation of merchandise for hire, and as such was a common carrier. That thereafter, to wit, on the 30th day of June, 1918, the Wells Fargo Express Company transferred all of its tangible properties in Missouri in an amount greatly in excess of the amount sued for in this case to the American Railway Express Company, in exchange for shares of stock in said American Railway Express Company, and that, on and after June 30, 1918, the Wells Fargo Express Company retired from the express business in Missouri, and on and after February, 1919, had no license, and has not since renewed its license to do business in said state. That said Wells Fargo Express Company still has a corporate existence and maintains its principal business office in New York City, N. Y. That the American Railway Express Company was not organized and licensed to do business in Missouri until on or about July 1, 1918, and that since the date of taking over the tangible properties of the Wells Fargo Express Company, the said American Railway Express Company has been continuously engaged in the business of transporting goods and merchandise in Missouri for hire, and as such is a common carrier."

The finding was for plaintiff, and, after unsuccessful motions for new trial and in arrest, defendant appeals.

The only evidence offered by plaintiff was the said agreed statement of facts, a copy of the articles of incorporation, certificate, and license of the American Railway Express Company, issued to said company by the state of Missouri. At the close of plaintiff's evidence, defendant offered a demurrer which the court refused. Defendant's evidence consisted of a receipt issued by the Wells Fargo Express Company for the articles sued for, said receipt being dated January 16, 1918, and the deposition of one Davis G. Mellor, secretary and treasurer of the Wells Fargo Express Company, taken in New York on May 11, 1922. No finding of facts was made by the court, and no declarations of law were asked by either party, and none were given. The said deposition shows that when defendant purchased the tangible property and assets of the Wells Fargo Express Company on June 30, 1918, it did not take over notes, accounts, or other property not actually used in the transportation business, and that the Wells Fargo Company has continued its corporate existence, with offices in New York, but that it transacts no business except to adjust matters handled by the company prior to July 1, 1918.

Paragraph 7, on the back of the printed receipt issued by the Wells Fargo Company to plaintiff, on delivery of the articles embraced in this action, provides that except where the loss, damage, or injury claimed is due to delay or damage while being loaded or unloaded, or to damage in transit by carelessness or negligence, as a condition precedent to recovery, in case of failure to deliver, claim must be made in writing to the originating or delivering carrier within four months after reasonable time for delivery has elapsed; and it suit is instituted for loss, it shall be begun within two years and one day after reasonable time for delivery has elapsed. It is admitted, the articles sued for herein were delivered to the Wells Fargo Company on January 13, 1918, and there is no testimony tending to show that any claim for their value was made prior to the filing of the suit in the court of the justice of the peace on January 31, 1922.

Only two questions are presented by appellant for our consideration, viz.: (1) Is defendant, the American Railway Express Company, under the circumstances appearing in evidence, liable for the failure of the Wells Fargo Express Company to deliver the shipment? (2) Is plaintiffs cause of action barred by the limitation in paragraph 't, of the receipt issued by the Wells Fargo Express Company to plaintiff?

It is urged by defendant that, under the facts presented, the defendant is not liable for failure of the Wells Fargo Express Company to make delivery, and, in support of this view, cites McAlister v. American Railway Express Co., 179 N. C. 556, 103 S. E. 129, 15 A. L. R. 1090, as follows:

"Where a corporation transfers all its assets to another corporation and does not agree to assume the liability of the selling corporation, and both corporations maintain a separate existence, the purchasing corporation will not be answerable for any debts of the selling corporation, in the absence of fraud."

The facts in the McAlister Case are practically the same as in the case at bar, except that in the former, the shipment had been delivered to the Southern Express Company. Further the court said, in that case (179 N. C. 562, ...