Terry Packing Co. v. Southern Express Co.

June 21, 1927. The opinion of the Court was delivered by The plaintiff, Terry Packing Company, in February, 1920, brought four separate actions, each containing a number of causes of action, against the Southern Express Company. Each of the actions was based upon an alleged failure of the company to account to the plaintiff for the proceeds of certain C.O.D. shipments made by the plaintiff. The penalty of $25 on each shipment, allowed under Sections 3888 and 3889, Code, 1922, Vol. 3, was also claimed.

In April, 1920, the Southern Express Company, through its attorneys, moved before the County Judge for an order vacating the service of the summons in each of the said actions. This motion, upon hearing, was overruled by the County Judge, and thereafter, upon appeal to the Supreme Court, the order sustaining the service as valid was affirmed (125 S.C. 198; 118 S.E., 628). Later, upon motion of plaintiff, leave was granted to amend the summons and complaint in each of the cases by making the American Railway Express Company a party defendant, and by adding an additional paragraph to each cause of action, as follows:

"That American Railway Express Company on or about the 22d day of June, 1918, became incorporated under the laws of Delaware and has continued to be a corporation of that State; that on or about the 9th day of August, 1918, said American Railway Express Company became domesticated under the laws of South Carolina and has continued to be a domesticated corporation of South Carolina; that during the times mentioned above American Railway Express Company has engaged in business in Richland County, S.C. as a common carrier for hire, handling express, and since the 1st day of July, 1918, has had and still has agents and agencies in said Richland County; that since the 1st day of July, 1918, American Railway Express Company has been the agent of Southern Express Company for the purpose, among others, of adjusting, settling, compromising, and paying the claims, and outstanding and unpaid C.O. D.'s of Southern Express Company, its co-defendant, including the claim and outstanding C.O.D. mentioned and referred to above in this cause of action and for the purpose of defending suits brought to enforce payment of the same, and American Railway Express Company having bought out Southern Express Company with knowledge of the outstanding liabilities of Southern Express Company, including the one mentioned in this cause of action, and with knowledge that Southern Express Company was disposing of all of its property except treasury assets and contemplated going out of business and of winding up its affairs and liquidating, is liable for the debts of Southern Express Company, including the indebtedness mentioned and described in this cause of action."

The plaintiff's amended complaints embraced 259 separate causes of action, each alleging delivery of a C.O.D. shipment, either at Charleston or at Columbia, to the Southern Express Company by the plaintiff, the first shipment being of date August 17, 1916, and the last June 29, 1918.

The defendant Southern Express Company interposed a general denial, and further pleaded the special defenses that a claim in writing had not been filed within four months and that suit had not been brought within two years and one day after the date of such alleged delivery. The American Railway Express Company pleaded a general denial, and alleged further, after setting up the history and purposes of its organization, that it had not assumed the payment of the claims against the Southern Express Company and was not liable therefor.

The first case was tried by Judge Whaley and a jury on October 29, 1923, and resulted in a verdict for the plaintiff against the American Railway Express Company alone for $774.15. No penalty was allowed upon any of the interstate shipments set forth in this action, and interest was allowed on the whole amount, not including the penalties, from the date of the last shipment. The other three cases were tried on December 11, 1923, and resulted in verdicts for the plaintiff against the American Railway Express Company alone. In each of the said actions no penalties were allowed upon interstate shipments, interest being allowed in each case upon the whole amount, not including penalties, from the date of the last shipment.

From the judgments rendered in the four cases against the American Railway Express Company alone, a total of $8,749.49, that company has appealed to this Court. The appeals in the four cases were heard together at the fall, 1924, term of this Court, and an opinion was filed June 14, 1926, reversing the judgment below in each of the cases. The Court later granted a petition for rehearing, which was had at the January, 1927, term.

As the questions raised by the appeal in each of the cases are the same, we shall consider the appeal taken in the first case only, the disposition of which will dispose of the questions raised in all the cases.

The exceptions, raising numerous questions, will not be considered seriatim.

The first of the two main propositions presented by the appeal may be thus stated: That the American Railway Express Company did not assume the liabilities and obligations of the Southern Express Company and is not liable in any manner therefor, and to compel it to pay the judgments rendered in this case would be to deprive it of its property without due process of law, in violation of the provisions of Section 1 of the Fourteenth Amendment of the Federal Constitution.

In the report of the Interstate Commerce Commission (appendix to respondent's brief), which will be incorporated in the report of the case, we find the following:

"In June, 1918, the Adams, American, Wells Fargo, and Southern Express Companies, which jointly had secured by lease the express business and the property devoted to that business of the other express companies hereinbefore mentioned entered into a contract with the Director General by which it was provided that the express companies would cause to be organized a corporation to carry on the express transportation business for the Director General. Thereupon, the American Railway Express Company was organized under the laws of Delaware, and, under a contract with the Director General, took over the express business upon the railroads under federal control as agent of the Director General. The Adams, American, Wells Fargo, and Southern Express Companies exchanged all the property devoted by them to the express transportation business, estimated by the Director General to be of the value of $30,000,000, as of November 30, 1917, together with $3,000,000 in cash for working capital, for the stock of the American Railway Express Company."

Since the hearing of this appeal, the United States Supreme Court has handed down its decision in the case ofAmerican Railway Express Co. v. Commonwealth of Kentucky,190 Ky., 636; 228 S.W. 433; 30 A.L.R., 543, which involves this same question, namely, the liability of the American Railway Express Company for the old debts of its constituent companies. The decision in that case is adverse to the contention of the appellant in the case at bar. The Court holds, in substance, that the American Railway Express Company is liable for the old claims against its constituent companies, and that the holding to that effect in the Court below in no way deprived the appellant, the American Railway Express Company, of its property without due process of law, in violation of the Fourteenth Amendment of the Federal Constitution.

In its opinion, reported in 273 U.S. 269; 47 S.Ct., 353;71 L.Ed., 639, the Court, speaking through Mr. Justice McReynolds, says:

"Considering the circumstances disclosed by the record, there was nothing arbitrary or obviously contrary to the fundamental principles of justice in requiring the petitioner, organized for the purposes shown, to satisfy claims against the Adams Company which arose out of business within the State. The transfer of all the latter's property located in the State materially interfered with the ability of Kentucky creditors to enforce their claims, and, as to them, might have been declared fraudulent. It seems clear that the State, without conflict with the Fourteenth Amendment, might have enacted through its legislative department a statute of precisely the same effect as the rule of law and public policy declared by the Court of Appeals, and its decision is just as valid as such a statute would have been.Prudential Insurance Co. v. Cheek, 259 U.S. 530, 548;42 S.Ct., 516; 66 L.Ed., 1044; 22 A.L.R., 27."

This decision is conclusive of the question raised and makes further discussion of the point unnecessary. See, also, American Railway Express Co. v. Royster Guano Co.,273 U.S. 274; 47 S.Ct., 355; 71 L.Ed., 642.

The second main proposition presented by the appeal may be thus stated: That even if the American Railway Express Company is liable for the old claims against the Southern Express Company, the fact that the verdict of the jury exonerated the Southern Express Company from liability for the delicts charged against it would, as a matter of law, exonerate the American Express Company as well.

An examination of the record does not disclose that this point was raised in the Court below by a request to charge or by a motion for a new trial. Hence, the question raised here for the first time is not properly before this Court for consideration. Gaines v. Durhamet al., 124 S.C. 435; 117 S.E., 732.

The Gaines Case was an action against Durham and Masters on an account for fertilizers alleged to have been sold them by the plaintiff. Masters contended that his undertaking to pay for the fertilizers was not an original one, but only collateral, to answer for the debt of Durham. The verdict was against Masters alone, and on appeal he took the position that, if valid, the verdict should have been against both defendants. While the Court held that the undertaking of Masters was original, it pointed out that if it were not, his position should have been urged in the trial Court by a request to charge or by a motion for a new trial. Speaking through Mr. Justice Cothran, the Court said:

"Besides, if there had been any force in the position, it should have been urged upon a request to charge or a motion for a new trial, neither of which was done."

The appellant complains of error on the part of the trial Judge in refusing its motion for a new trial, upon the grounds stated in the motion and incorporated in its exception II. The first ground has already been disposed of. The second ground stated therein, that even if the appellant could be held liable for the obligations of the Southern Express Company, it could not be legally subjected to the penalties for which the Southern Express Company might be liable, is without merit.

As said in McAlister v. American Railway Express Co.,179 N.C. 556; 103 S.E., 129; 15 A.L.R., 1090:

"We do not agree with its [defendant's] view that the plaintiff is seeking to impose directly upon the defendant the penalty of our statute mentioned in the complaint. It only seeks to recover the penalty, if entitled to it, as a part of the debt or liability of the Southern Express Company to him. He could not recover the $50 simply as a penalty imposed on the defendant by the State for its delinquency, because it was not in the possession of the Southern Express Company's property when the penalty accrued, but, if defendant were at all indebted to plaintiff, the liability would include the penalty as a part of the sum due the plaintiff from the Southern Express Company."

As to the third and fourth grounds stated in the motion an examination of the record discloses that there was ample testimony to support the findings of the jury, and that the trial Judge committed no error in refusing a new trial upon these grounds.

We do not deem it necessary to discuss the other questions raised by the exceptions to which no special reference has been made. However, we have not neglected to examine and to consider them carefully. Our consideration of them leads to the conclusion that they are without merit.

All exceptions are overruled, and the judgment of this Court is that the judgment of the Richland County Court in each of the four actions be affirmed.

MR. CHIEF JUSTICE WATTS and MR. JUSTICE BLEASE concur.