Davis v. Hilton Lumber Co., 190 N.C. 873 (1925)

Nov. 25, 1925 · Supreme Court of North Carolina

190 N.C. 873

JAMES C. DAVIS, AGENT OF THE UNITED STATES RAILROAD ADMINISTRATION, and SEABOARD AIR LINE RAILWAY COMPANY v. HILTON LUMBER COMPANY.

(Filed 25 November, 1925.)

Appeal by plaintiff from Grady, J., at December Term, 1924, of New HANOVER.

Civil action to recover demurrage, unloading and storage charges, and war taxes incidental thereto, on three ear loads of lumber loaded and tendered by defendant to plaintiff for shipment, same being refused. Tbe defendant in its answer denied liability for said charges, and set up a counterclaim for damages for tbe wrongful sale and conversion of defendant’s lumber on said cars.

Tbe jury, responding to tbe issues submitted, found: (1) That tbe first car load of lumber, tendered by defendant to plaintiff for shipment, 18 March, 1918, destination Guenther’s Siding, Philadelphia, was not offered in violation of a valid embargo then existing; (2) that tbe two car loads of lumber, tendered by defendant to plaintiff for shipment, 21 March, 1918, destination New York and Brooklyn, were not offered in violation of a valid embargo then existing; (3) that tbe plaintiff, Eail-road Administration, wrongfully refused to issue bills of lading for said shipments; and (4) that the defendant was entitled to recover of tbe plaintiff tbe sum of $2,463.24, on account of tbe matters and things alleged in tbe answer.

From a judgment on tbe verdict in favor of defendant, tbe plaintiff appeals, assigning errors.

John D. Bellamy & Sons for plaintiff.

Bryan '<& Campbell for defendant.

Pee Cueiam:.

Several serious exceptions have been entered on tbe record, but a careful perusal of tbe whole case leaves us witb tbe impression tbat they should all be resolved in favor of tbe validity of tbe trial. Most of tbe questions, presently sought to be presented, were considered by us on a former appeal, 185 N. C., 227; and tbe court on tbe second trial, seems to have followed tbe law substantially as declared on tbe first appeal. ¥e are not now permitted to review any question which was decided on tbe former appeal, as a party who loses in this Court may not have tbe case reheard by a second appeal. Ray v. Veneer Co., 188 N. C., 414.

“A decision by tbe Supreme Court on a prior appeal constitutes tbe law of tbe case, both in subsequent proceedings in tbe trial court and on a subsequent appeal.” Harrington v. Rawls, 136 N. C., 65. To like effect are numerous decisions in this and other jurisdictions. See Note, 34 L. R. A., 321. Speaking to tbe question in Vann v. Edwards, 135 N. C., p. 676, it was said tbat “tbe decision of a Court of final resort, upon a given state of facts, becomes tbe law of tbe case upon a second trial and another appeal in regard to those facts, if they are substantially tbe same as those upon which tbe former decision was made.”

It would serve na useful purpose to consider tbe exceptions seriatim, as tbe law of tbe case was settled and discussed by us on tbe former appeal.

Tbe verdict and judgment will be upheld.

No error.

CoNNOE, J., did not sit.