Futch v. Atlantic Coast Line R. Co.

• Decision Date: 15 October 1919
• Docket Number: 288.
• Parties: FUTCH v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

100 S.E. 436

178 N.C. 282

FUTCH v. ATLANTIC COAST LINE R. CO.

No. 288.

Supreme Court of North Carolina

October 15, 1919

Appeal from Superior Court, New Hanover County; Calvert, Judge.

Action by D. K. Futch against the Atlantic Coast Line Railroad Company. From a judgment for defendant, plaintiff appeals. No error.

If the trial court failed to state any of plaintiff's contentions in its charge, the omission should have been called to its attention.

E. K Bryan, of Wilmington, for appellant.

Rountree & Davis, of Wilmington, for appellee.

WALKER J.

The grievance alleged by the plaintiff is that the defendant failed to place a refrigerating car for him at Wrightsboro by 2:30 o'clock p. m., on May 16, 1918, to receive a certain lot of lettuce, which he had cut for shipment, as it had promised the day before to do. The evidence was conflicting, and we think it was submitted to the jury under proper instructions from the court.

The plaintiff specially complains of the judge's instruction to the jury, that if the order for the three cars, two for the Wilmington Truckers' Association and one for the plaintiff, was given by Freeman and understood by the defendant's agent, they should answer the first issue "Yes," or in favor of the plaintiff, or if the next morning, the 16th of May, the car not having arrived defendant's agent promised to have it at Wrightsboro by 2:30 o'clock in the afternoon, they should answer the issue in the same way. The particular objection is to the use of the words, "and understood by the defendant's agent"; the contention being that it made no difference whether the agent understood the terms of the order, if it was in fact given. This may or may not be so. The word "understood" was manifestly not used in any such sense, that is, whether he was intelligent enough to understand it, but its meaning is whether it was understandingly given by Freeman. Freeman, plaintiff's own witness, had testified that the agent may not have "understood" that he ordered the third car for Futch, as he gave the number of cars with his fingers raising two first, and then the one. He further testified:

"After I got home in the afternoon of May 15th, I told Mr. Moore that I thought perhaps the clerk did not understand me, and that I had phoned down to the office, and it was closed. I told them this in Mr. Elliott's office, when I went down there with Mr. Futch; that after I left there I began to think about it, and remember the surroundings and what was taking place down there at the office at the time. I was not positive in my mind whether the young man who took the order understood me or not, so I phoned back to the office to find out, but the office was closed. That was after 6 o'clock."

The judge only submitted this evidence to the jury, that they might say whether the order was so given as to cause a prudent man to mistake it. That was all he meant. It was a question of fact, and the jury settled it.

Whether a new promise was made on the 16th to place the car by 2:30 p. m. was another question of fact, and the judge sufficiently stated it to the jury. The car ordered at 9 o'clock on May 16th was placed in the first train out that day. It was contended by the defendant before us that to have given a special or quicker service, by using an extra engine, would have been a discrimination, which is forbidden by the Interstate Commerce Act; this being an interstate shipment moving from Wrightsboro, N. C., to Buffalo, N. Y., and C. & A. Railroad Co. v. Kirby, 225 U.S. 155, 32 S.Ct. 648, 56 L.Ed. 1033, Ann. Cas. 1914A, 501, was cited to support the position. But we need not consider it, as the jury have decided the facts against the plaintiff. We have considered the question of discrimination and rebates at this term in Edenton Cotton Mills v. N. S. Railroad Co., 100 S.E. 341.

The judge stated and explained fully--and if not, sufficiently as we think--the question whether the defendant had abandoned its rule, or regulation, that it should have 24 hours' written notice, when a car is ordered. After stating...