180 S.E. 343 (S.C. 1935), 14074, Livingston v. Atlantic Coast Line R. Co.

Docket Nº:14074.
Citation:180 S.E. 343, 176 S.C. 385
Opinion Judge:BONHAM, Justice.
Attorney:Thomas W. Davis, of Wilmington, N. C., and McKay & Manning, of Columbia, for appellant. J. A. Hutto, J. Hughes Cooper, and Richard T. Maher, all of Columbia, for respondent.
Case Date:May 29, 1935
Court:Supreme Court of South Carolina

Page 343

180 S.E. 343 (S.C. 1935)

176 S.C. 385




No. 14074.

Supreme Court of South Carolina

May 29, 1935

Appeal from Common Pleas Circuit Court of Richland County; M. S. Whaley, Judge.

Action by Detry O. Livingston against the Atlantic Coast Line Railroad Company (Relief Department). From a judgment for plaintiff, defendant appeals.

Reversed, and complaint dismissed.

Thomas W. Davis, of Wilmington, N. C., and McKay & Manning, of Columbia, for appellant.

J. A. Hutto, J. Hughes Cooper, and Richard T. Maher, all of Columbia, for respondent.

BONHAM, Justice.

The appellant railroad corporation maintains for the benefit of its employees a relief department, the headquarters of which are at Wilmington, N.C. The respondent was in the employ of the defendant first as a fireman and then as an engineer, with his place of employment centering at Florence, S.C. In order to become a member of the relief department, it is necessary for the employee to make written application to the relief department and stand a physical examination. These things respondent did at Florence, S. C., and his application was forwarded to the relief department headquarters at Wilmington, N.C. The application was dated May 21, 1919, and approved by the superintendent of the relief department at his office at Wilmington, N. C., June 13, 1919, to take effect the 21st day of May, 1919. The measure of relief to which the member is entitled, and the amount of fee or premium which he pays, is determined by the grade of his employment and the amount of his pay. As he advanced in promotion, the plaintiff in this

Page 344

action filed two additional applications which were approved by the superintendent of the relief department, the effect of which was to increase the amount of relief to which he would be entitled and to increase the amount of the premium he must pay, but did not otherwise alter the terms of the contract made by the acceptance and approval of the first application.

[176 S.C. 388] The plaintiff brought action in the county court of Richland county on a claim of total disability.

Defendant by answer pleaded:

(1) A general denial and prior payment in part of benefits under the contract.

(2) Failure of plaintiff to appeal to the advisory committee of defendant as provided by the contract sued on.

(3) Relief of plaintiff and termination of the contract sued on.

(4) Failure of plaintiff to give proper notice and proof of disability.

(5) Failure of plaintiff to be examined by or report to the medical examiner of the defendant, as required by the contract.

(6) Failure of plaintiff to produce positive evidence of acute or constitutional disease in addition to subjective symptoms.

(7) That the contract sued on is a North Carolina contract, and all questions relating to its validity and reasonableness and to the enforcement of its terms and provisions and the rights of the parties are governed and controlled by North Carolina law and decisions.

The case was tried by Judge Whaley and a jury, and resulted in a verdict for plaintiff. Motions for directed verdict and for new trial were made and refused.

The defendant appeals upon 28 exceptions, but not so many issues are made thereby.

The first question demanding consideration is this: Is this a North Carolina contract, and governed by North Carolina laws and the decisions of the North Carolina courts?

On the trial, the defendant offered in evidence the case of Nelson v. Atlantic Coast Line Railroad Co., decided by the Supreme Court of North Carolina and reported in 157 N.C. 194, 72 S.E. 998, 52 L. R. A. (N. S.) 829. Plaintiff did not require formal proof for the introduction [176 S.C. 389] of the case, but objected to it on the ground of its irrelevancy, as this was a South Carolina contract.

The trial judge sustained the objection on the ground thus stated.

Was he right? Where was the contract made?

What attends the making of a contract? The offer stating the conditions or terms; the acceptance of the offer.

In the present case, the plaintiff made application at Florence, S. C., to the relief department of defendant at its home office at Wilmington, N. C., to become a member of the relief department, stating the terms and conditions by which he agreed to be bound. One of the conditions and terms proposed by plaintiff in his application was in this language: "I also agree, that this application, upon approval by the Superintendent of the Relief Department, shall make me a member of the Relief Fund on and from the date specified in such approval, and constitute a contract between myself and the said Company. * * *" (Italics added.)

The acceptance and approval of this proposal was made at Wilmington in the state of North Carolina. Instantly, ipso facto, the contract became complete. All that remained to do was to notify plaintiff of the fact and to send him his certificate of membership, and copies of the rules and regulations, which he states in his application he had already seen.

It does not necessarily follow that the place where the contract is made determines the place of its enforcement. In this particular instance we think the internal facts show that the place of enforcement of this contract is at Wilmington, N.C. By the terms of the contract the premiums due by the member of the relief fund are deducted from his pay check at Wilmington. He does not send them in. In the event that he is entitled to payment for disability, payment is made by check sent him from Wilmington. It is in evidence that the plaintiff received some such checks...

To continue reading