The liability of an express company taking over the assets of other companies, for claims against the constituent companies arising before the consolidation, is no longer an open question. Brabham v. Express Co., 124 S.C. 157;117 S.E., 368. The fact that the operating company agrees to adjust the claim does not alter the situation; it is doing only that which the law would compel it to do.
In the case now under consideration, such was the liability of the appellant. Had the Southern Express Company been eliminated, and had the action proceeded against the appellant alone, as was done in the Brabham case, a case presenting an entirely different aspect would now be before *Page 34 this Court. The plaintiff, respondent, sought to hold both companies liable, and the action on the assumption that both were liable was most natural. Any attorney deeming two parties liable, is entirely warranted in trying to enforce the claim against both, so that there is not any basis for a criticism in maintaining the action against both companies — the failure was on the part of the jury.
The jury could not have found a verdict against the appellant without coming to the conclusion that its codefendant was liable. Evidently they took the view that the appellant having received the assets, should meet the liabilities of the Southern Express Company, So we say, judging from the finding of the jury, both companies were liable. Not finding against the Southern Express Company is just the result of a jury trial, where jurors in attempting to do justice go wide of the mark as to the issues involved and in applying the facts to the law; and in failing to find against one, have released the other. To hold otherwise would, in my opinion be going contrary to the opinions of this Court, often expressed, as will be seen by reference to the cases referred to in the opinion of Mr. Justice Cothran.
No case has been cited to change the rule that where the offending party has been released, or acquitted, another cannot be held liable for an imputed act. In this case, as before suggested, had the action been against the appellant alone, the verdict and judgment must have stood. And, although, there was as a matter of law, an assumed liability when thetrial commenced, a verdict against the appellant alone, relieved the appellant of this liability. The case of this appellant against Kentucky, recently decided and cited in the controlling opinion, with great deference, we say, is wide of deciding this point; not is the case of the American Ry. Exp.Co. v. Kentucky, 190 Ky., 636; 228 S.W. 433; 30 A.L. R., 543, helpful to this case for, in that case the Adams Express Company, whose assets had been taken over, had *Page 35 been sued to judgment on claims against it, and afterwards suits were brought against American Railway Express Company. Quite different from this case. Here, the Southern Express Company, the real wrongdoer, was sued, and, by the verdict of the jury was held not liable. The same result follows as if a principal and surety were sued together and a verdict given against the surety only. Would any one then contend that the surety could be held liable for a debt which the jury had found that the principal did not owe? Or, take this case. So far as the record discloses, the appellant has paid the Southern Express Company for all it got from that company. If the judgment for these claims be paid by the appellant, and it should sue the Southern Express Company, or seek to enforce this judgment against it, would it not be met with the answer, "This company owes you nothing; it has been released by a jury on these claims." But a majority of the members of the Court have held that the appellant must pay the claims. Manifestly, from out standpoint the appellant before the verdict was rendered, was liable to pay the claims; and, our objection to the result of the finding of a majority of the Court, is not that the appellant ought not to have been held liable, but that, having by all of the previous decisions of this Court, been released by the failure to hold the Southern Express Company liable, it is better to follow what I conceive to be the settled principles governing such cases, than to give relief in an individual case. In expressing these views I do not wish to be understood as desiring to depart from the principles announced by this Court in holding a corporation purchasing the assets of another corporation liable for the claims against that corporation, as is so forcibly expressed by the present Chief Justice in Brabham v. Express Co., 124 S.C. 157;117 S.E., 368.
For the foregoing reasons, I dissent from the controlling opinion in this case. *Page 36