#### KING GROCERY COMPANY v. SOUTHERN EXPRESS COMPANY and THE AMERICAN RAILWAY EXPRESS COMPANY.

(Filed 15 October, 1919.)

■Corporations— Negligence — Damages — Successor Corporations — Express Companies — War Measures.

Where an express company that has received goods for transportation is not liable for damages thereto, neither c.an another and independent express company since organized, and which took over the business of the former company be held liable, as, in this case, the American Railway Express Company, a war measure. Friedemvald v. Tobacco Oo., 117 N. C., 545, cited and distinguished.

Civil aotioN, tried before Galvert, J., at September Term, 1919, of EobesoN.

The defendant, the American Eailway Express Company, appealed.

The following is the charge of the court and the issues, to all of which the defendant specifically excepted:

“Gentlemen of the jury: There are some issues to be submitted to .you. The first is, 'In what sum, if any, is the defendant American Eailway Express Company indebted to the plaintiff on account of the loss of merchandise, as alleged in the complaint?’ (If you find the facts to be as testified to, you will answer that issue '$2.68.’)

“The second issue is, 'In what sum, if any, is the defendant Southern Express Company indebted to the plaintiff on account of the loss of merchandise, as alleged in the complaint?’ If you find the facts to be as testified to, then you will answer this issue 'Nothing.’

“Third, 'Did the plaintiff file claim with the defendant Southern Express Company within the time provided by statute?’ If you find the :facts to be as testified to, you will answer that issue 'Yes.’

“Fourth, 'Did the defendant fail and refuse to pay said claim within three months after the filing of same?’ If you find the facts to be as testified to, you will answer that 'Yes’ also.”

Upon the jury’s answer to the foregoing issues, the court as a matter ■of law answered the fifth issue, “In what sum is the defendant American *324Railway Express Company indebted to the plaintiff on account of penalty for failure to pay said claim within the time provided by statute?” $50, to which the defendant American Railway Express Company excepted.

J ohnson & J ohnson for plaintiff.

McLean, Varser, McLean & Stacy for American Railway Express Company.

Beowk, J,

The uncontradicted evidence is, and it is admitted, that the merchandise was shipped prior to the incorporation .and organization of the American Railway Express Company. The claim of $2.68 was 'filed with the Southern Express Company on 3 Hay, 1916. The . American Express Company was organized during the recent war as a war measure for the better operation and control of the' express business of the country. At the time this butter was damaged this company was not in existence, but whether it is liable for the acts and negligence of the Southern Express Company we will not determine on this appeal.

It is manifest that there is an inconsistency in the findings of the jury. Under the instructions of the learned judge the jury have found that the Southern Express Company is not liable to the plaintiff on account of the loss of merchandise, as alleged in the complaint. It necessarily follows that if the Southern Express Company, which transported the butter and is alleged to have caused the damage by its negligence is not liable, then the American Railway Express Company,, although it succeeded to the business of the Southern Express Company,, cannot be liable.

The case of Friedenwald v. Tobacco Works, 117 N. C., 545, is not in conflict with this proposition. In that case there was a transfer of all the property rights and franchises of one corporation to a new company organized by the same stockholders and the same directors for the purpose of carrying on the same business. It was held that the new corporation was liable for the debts of the old. It being practically the-same business conducted by the same persons under a new name.

In the case at bar no liability has been established against the Southern Express Company, consequently, as the negligence was not the fault of the American Express Company, it cannot be liable if the Southern Express Company is not.

Reversed.