Opinion
10826
January 26, 1922.
Before RICE, J., Kershaw, March, 1921. Reversed.
Action by Thomas J. White and wife against John Barton Payne, Director General of Railroads, judgment for plaintiff and defendant appeals.
Messrs. Barnett McDonald, for appellant, cite: Relation of shipper and carrier does not commence as long as anything remains to be done by shipper: 4 R.C.L., 688-695; 10 C.J., 222, 224, 226; 35 S.E., 369; 32 L.R.A. (N.S.), 313; 32 L.R.A. (N.S.), 323; 16 S.E., 323; 32 L.R.A. (N.S.), 320; 84 Ala., 173; 9 S.E., 1076; 35 S.E., 369; L.R.A., 1916C, note; No presumption as warehouseman on interstate shipment: 240 U.S. 632.
Messrs. W.B. DeLoach and Kirkland Kirkland, for respondents, cite: Oral arrangements sufficient to bind carrier: 114 U.S. 584. Deposit sufficient: 25 Mo. App., 473. Cattle in pens and partly loaded held to have been accepted by carrier: 80 Tex., 270. Statement of admitted facts not improper: 96 S.C. 16; 92 S.C. 114.
January 26, 1922. The opinion of the Court was delivered by
The plaintiff brought this action for damages for the loss of a mule. The facts will be stated in discussing the assignments of error.
The first assignment of error is in refusing a motion for a nonsuit. The nonsuit could not have been granted. There was evidence to show that the plaintiff had made arrangements with the agent of the defendant to ship a carload of goods and live stock from Camden, in this State, to Concord, N.C.; that the defendant provided an empty car for that purpose; that the plaintiff went to the agent of the defendant and asked to be shown the car; that the agent of the defendant pointed out the car on a side track, and gave the plaintiff full instructions as to loading the car; that the plaintiff went out and loaded the car as instructed; that the plaintiff then went back to the station to get his bill of lading and to pay the freight, but the agent had left the station; that the car was to have started on its way at 6 o'clock the next morning. In the morning the mule was dead in the car.
The second assignment of error is in charging on the facts. His Honor the trial Judge charged the jury that the undisputed evidence showed that the relation of shipper and carrier had been established. In this his Honor was in error. The agent of the defendant said that he gave the plaintiff instructions as to the loading of his household-goods, but he, the agent, wanted to supervise the loading of the live stock. The plaintiff denies this, but that made a question for the jury. The charge ignored the conflict, and was prejudicial error.
There are other specifications of error in charging on the facts, but this is sufficient.
The judgment is reversed.