Begnell v. Safety Coach Line, Inc.

*691 CoNNOR, J. The defendant, Carolina Coacb Company, on its appeal to this Court, contends that there was error on the trial of this action in the Superior Court, (1) in that the judge overruled its demurrer ore tenus to the complaint as amended after said defendant was made a party to the action, for that the facts stated therein are not sufficient to constitute a cause of action upon which the plaintiff is entitled to recover of said defendant, C. S., 511(6) ; C. S., 518; (2) in that the judge refused to allow its motion at the close of all the evidence that the action as against said defendant be dismissed as of nonsuit, O. S., 567; and (3) in that the judge in his charge instructed the jury that upon the admissions in the pleadings, which were the only evidence offered at the trial pertinent to said issue, the jury should answer the third issue, “Yes.” The question thus presented for decision is whether upon the facts alleged in the amended complaint, admitted by both the demurrer and the answer, the defendant, Carolina Coach Company, is liable as a matter of law to the plaintiff for the damages sustained by her and caused by the negligence of the defendant, Safety Coach Line, Inc. The plaintiff contends that the defendant, Carolina Coach Company, is liable to her for such damages, because after the commencement of the action, and while the same was pending, the defendant, Safety Coach Line, Inc., by a bill of sale, conveyed to the said Carolina Coach Company all of its busses, tools and equipment, and also all its franchises, rights in and to the lease on the bus station at Raleigh, and rights to operate its busses in Greensboro. It is not alleged in the complaint, and there was no evidence at the trial tending to show that at the time of the conveyance the Safety Coach Line, Inc., was insolvent, or that said conveyance was made with intent to hinder, delay or defraud the plaintiff or other creditors of the Safety Coach Line, Inc.; nor is there allegation or proof that there was in law or in fact a merger or consolidation of the Safety Coach Line, Inc., with the said Carolina Coach Company; nor is there allegation or proof that the Carolina Coach Company' assumed or agreed to assume any of the liabilities of the Safety Coach Line, Inc., whether arising out of contract or otherwise. There is neither allegation nor proof that the defendant Carolina Coach Company was a new corporation, organized for the purpose of taking over and operating the property of the Safety Coach Line, Inc., or that said Safety Coach Line, Inc.', has ceased to exist as a corporation. In the absence of such allegations in the complaint, there was error in the refusal of the judge to sustain the demurrer. As there was error in the refusal to sustain the demurrer, it follows, of course, that there was error in the refusal of defendant’s motion for judgment dismissing the action as against it as of nonsuit, and in the instruction with respect to the third issue. The fact that one *692 corporation bas purchased and taken a conveyance o£ tbe property of another corporation does not alone make the vendee liable for the debts of the vendor. In McAlister v. Express Company, 179 N. C., 556, 103 S. E., 129, it is said: “The cases which hold that a new corporation must pay the debts of the original one are those where there was a reorganization, consolidation, amalgamation, or union, and the new company is subjected to liability for the debts and torts of the old company upon the ground of an implied assumpsit, or of fraud, or under the trust fund doctrine, or because, by reason of the facts and circumstances, the complete absorption of the old company and its assets, including its franchise, being the leading and controlling one, it is completely substituted in its place and thereby becomes the debtor to its creditors.” ¥e think it manifest that this principle does not apply in the instant case. The facts stated in the amended complaint are not sufficient to constitute a cause of action against the defendant, Carolina Coach Company. Askew v. Hotel Co., 195 N. C., 456, 142 S. E., 590. The judgment against the defendant, Carolina Coach Company, cannot be sustained under the provisions of C. S., 1138. At most these provisions, if applicable, would render the conveyance void, with the result that although the property conveyed by the defendant, Safety Coach Line, Inc., to the> Carolina Coach Company, is in the possession of the latter, it is subject to levy and sale under execution issued on the judgment in this action in favor of the plaintiff and against the defendant, Safety Lines, Inc. Upon the facts alleged in the amended complaint, and shown by the evidence, the Carolina Coach Company is not liable to the plaintiff for damages resulting to her from injuries caused by the negligence of the defendant, Safety Coach Company. If the conveyance of the property is void, because of the provisions of C. S., 1138, the Carolina Coach Company acquired no title to the property by reason of the conveyance, as against the plaintiff. It does not follow, however, that for this reason, the Carolina Coach Company became liable to the plaintiff for her damages. It,is manifest, we think, that C. S., 1013, has no application in the instant case. This statute applies only to a sale in bulk of a large part or the whole of a stock of merchandise. The property conveyed by the defendant, Safety Coach Line, Inc., to the defendant, Carolina Coach Company was not merchandise within the meaning of the statute. Swift & Co. v. Tempelos, 178 N. C., 487, 101 S. E., 8. For error in overruling its demurrer ore temas, the judgment against the defendant, Carolina Coach Company, must be Reversed.