Goodwin Jean v. American Ry. Express Co.

*698 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 *699 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 of the contract of shipment made with the Wells-Fargo & Company Express, which among other things contained the express condition that the carrier would not be liable to the plaintiff for the non-delivery of the said shipment unless the plaintiff brought suit therefor within two years and one day after a reasonable time for the delivery of said shipment had elapsed; that the date of shipment was December 20, 1917, and that the reasonable time for the delivery of said shipment had elapséd on January 1, 1918, and that plaintiff’s action was not filed until January 15, 1920, more than two years and a day and a reasonable time for the delivery after the said shipment of December 20, 1917; and the answer further set up the defense that the defendant is not liable for any claims against the Wells-Fargo & ’Company Express, and that it has not assumed the obligations thereof. There is no real controversy but that twenty-two barrels of poultry were delivered by plaintiff to, and accepted by the Wells-Fargo & Company Express at Delta, Missouri, on December 20, 1917, for shipment to Chicago, Illinois. There was sufficient testimony adduced on behalf of the plaintiff to submit the issue to the jury as to whether any of the twenty-two barrels of poultry were delivered at destination. On February 15, 1918, plaintiff sent the claim for loss of the shipment to W. R. Buckmaster, claim agent of the Wells-Fargo & Company Express at St. Louis and continued to press settlement for this claim, as is evidenced by various letters passing betweén plaintiff and the said claim agent. A letter dated January 30, 1919, from said claim agent to plaintiff, which letter was written on stationery of the American Railway Express Company, acknowledged receipt of plaintiff’s registered letter of January 27th addressed to H. L. Bigelow, one of the claim agents of the American Railway Express Company, in which letter plaintiffs state that' unless they receive settlement for the claim within five days they would file suit thereon. In this letter of January 30, 1919, liability is admitted for the failure td deliver fourteen of the twenty-two barrels of poultry, but also asserts that the remaining eight barrels had been delivered and plaintiffs received payment therefor from the consignee. Plaintiffs thereupon filed suit on January 15, 1920, two years and twenty-six days after the date of delivery of the shipment' to the Wells-Fargo & Company Express. *700 It is conceded that the Wells-Fargo & Company Express ceased to do business as a common carrier in the State of Missouri at midnight June 30, 1918, having conveyed its express business to the American Railway Express Company, a corporation organized under the laws of the State of Deleware, at the instance and direction of the Director of Railroads as a war measure to facilitate the handling of express business in the United States; that the consideration for the conveyance by the Wells-Fargo & Company Express of its transportation equipment was the issuance to it as a corporation of some ten million dollars of stock of the American Railway Express Company; that this stock was issued direct to the Wells-Fargo & Company Express, and that no stock was issued to its stockholders; that the amount of the stock issued was equal at par value to the actual depreciated book value of the property of the Wells-Fargo & Company Express which was transferred to the American Railway Express Company; that the Wells-Fargo & Company Express was not dissolved but continued in existence. The record further discloses that the Wells-Fargo & Company Express was not and is not insolvent and that the transfer of its tangible properties was not made for the purpose or with the intent of defrauding any of its creditors, but that the transfer was made in good faith. It is defendant’s contention here that the American Railway Express Company is not liable to plaintiffs for any cause of action that they may have had against the Wells-Fargo & Company Express. This same question has recently been presented to the Kansas City Court of Appeals where in a carefully considered opinion that court decided the point adversely to the defendant, and we are of the opinion that the result arrived at by the Kansas City Court of Appeals upon this question is correct and we accordingly rule this point against defendant. [See Peters v. Amer. Ry. Ex. Co., 256 S. W. 100, and cases therein cited. See, also, Amer. Ry. Exp. Co. v. Commonwealth (Ky.), 228 S. W. 433; Sweeney v. Mining Co., 194 Mo. App. 140, 186 S. W. 739.] The second reason urged by defendant for the reversal of this case is that the suit was not instituted within two years and a day after a reasonable time for delivery of the shipment, as provided for in the Uniform Express Receipt, which in this instance is the contract of carriage. This point is well taken. The record discloses that the plaintiffs did not file their action below until two years and twenty-six days after December 20, 1917, which was the date when the shipment was delivered to the Wells-Fargo & Company Express and that two to four days was. a reasonable time for delivery of the shipment in question. The record further discloses that when the Wells-Fargo & Company Express ceased doing business in the State of Missouri at midnight on June 30, 1918, all of *701 its offices, express equipment, officers and employees were taken over by tbe American Railway Express Company and tbe business theretofore done by said Wells-Fargo & Company Express from that time on was conducted by the American Railway Express Company, yet plaintiffs contend that despite this state of the record, since the Wells-Fargo & Company Express went out of business on June 30; 1918, and the American Railway Express Company, a foreign corporation, did not comply with sections -9791-2, Revised Statutes of Missouri, 1919, and obtain its license to do business in this State until the first day-of August, 1918, that therefore, in light of section 1326, Revised Statutes of Missouri, 1919; from midnight June 30, 1918, the admitted date on which, the Wells-Fargo & Company Express retired from business in the State of -Missouri, until the first day of August, 1918, when said American--Railway Express Company complied with the requirements of said sections 9391-2, there was no one upon whom service could have been legally had by plaintiffs against either the Wells-Fargo & Company Express or the American Railway Express Company, and therefore the running of limitations provided for in the Uniform Express Receipt was arrested from midnight June 30, 1918, until the first day of August, 1918, when the American Railway Express Company, as a foreign corporation, duly obtained its certificate and license to do business in the State of Missouri, and that deducting this time, namely, thirty-one days, from the period intervening from the time the cause of action accrued to the date of the filing of plaintiffs’ petition, plaintiffs did in fact file their action within the time required by said contract of carriage. To this we cannot accede. Plaintiffs’ action is based upon an interstate shipment and therefore the said sections 9791-2, Revised Statutes of Missouri, 1919, here sought to be relied on by plaintiffs, are unavailing and inapplicable. [Chouse Engine & Mfg. Co. v. Apartment Co., 154 Mo. App. 139, 133 S. W. 624; Corn Products Co. v. Supply Co., 156 Mo. App. 110, l. c. 116, 135 S. W. 985; Rodgers v. Foundry Co., 167 Mo. App. 228, l. c. 244-48, 150 S. W. 100; German-American Bank v. Smith, 202 Mo. App. 133, l. c. 154, 208 S. W. 878.]- Furthermore since the record before us discloses that at midnight June 30, 1918, the American Express Company took over all of the offices, express equipment, officers and employees of the Wells-Fargo & Company Express and continued without' interruption the express business that theretofore had been done by the said Wells-Fargo & Company Express, section 1186, Revised Statutes of Missouri, 1919, afforded an adequate and effective method of service of summons on the defendant, American Railway Express Company, since that seetion, among other things, provides that a summons shall be executed, “. . . where the defendant is a corporation or joint stock com *702 pany, organized under the laws of any other State or country, and having an office and doing business in this State, by delivering a copy of the writ and petition to any officer or agent of such corporation or company in charge of any office or place of business, or if it have no office or place of business, then to any officer, agent or employee, in any, county where such service may be obtained, and when had in conformity with this subdivision shall be deemed personal service against such corporation and authorize the rendition of a general judgment against it.” "We accordingly rule that plaintiffs, upon the record before us, at all times could have had service, either upon the Wells-Fargo & Company Express or the American Railway Express Company (State ex rel. Texas Portland Cement Co. v. Sale, 232 Mo. 166, 132 S. W. 1192; Nathan v. Planters’ Cotton Oil Co., 187 Mo. App. 560, 174 S. W. 126, and cases therein cited. See, also, State ex rel. St. Joseph Lead Co. v. Jones, 270 Mo. 230, 192 S. W. 980) and that since the time of limitation, namely, two years ánd a day after reasonable time for delivery of the shipment in question had elapsed, as required in the Uniform Express Receipt, under which the shipment was made, must be held to be a reasonable limitation (M. K. & T. Ry. Co. v. Harriman, 227 U. S. 657; Ellis v. Davis, 260 U. S. 682) we rule that plaintiffs failed to institute their suit within the agreed limitation. It follows, that the judgment should be reversed. It is so ordered. Danes, P. J., and Nipper, J., concur.