{ "id": 8655088, "name": "W. T. HUSSEY et al., Trading as ENTERPRISE CARRIAGE COMPANY, v. ATLANTIC COAST LINE RAILROAD COMPANY", "name_abbreviation": "Hussey v. Atlantic Coast Line Railroad", "decision_date": "1922-02-22", "docket_number": "", "first_page": "7", "last_page": "9", "citations": [ { "type": "official", "cite": "183 N.C. 7" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "182 N. C., 440", "category": "reporters:state", "reporter": "N.C.", "opinion_index": -1 }, { "cite": "176 N. C., 277", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "152 N. C., 269", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270631 ], "opinion_index": 0, "case_paths": [ "/nc/152/0269-01" ] }, { "cite": "125 N. C., 90", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "182 N. C., 440", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 } ], "analysis": { "cardinality": 316, "char_count": 5969, "ocr_confidence": 0.449, "pagerank": { "raw": 9.178867138427145e-08, "percentile": 0.5091430040901999 }, "sha256": "c20d1a89083c3590797bf81f18efe51db995e16e6e63c94c503554e50d329046", "simhash": "1:36a8847d4aabfa7d", "word_count": 1082 }, "last_updated": "2023-07-14T16:03:22.299745+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "W. T. HUSSEY et al., Trading as ENTERPRISE CARRIAGE COMPANY, v. ATLANTIC COAST LINE RAILROAD COMPANY." ], "opinions": [ { "text": "Clakk, C. J.\nThis was an action, begun before a justice of the peace, to recover damages to shipment of freight, amounting to $66.20, 'with interest from 20 May, 1920, and for the penalty of $50 for delay of more than 90 days after filing claim to pay the same, imposed by law. O. S., 3524. Judgment was rendered for said amounts. On appeal, the evidence was that two barrels of oil, costing $64.94, plus freight ($1.36), was shipped 23 April, 1920, from Rocky Mount to Tarboro; that .when it arrived there was a loss as above stated, and the plaintiff filed a claim in writing for $66.20, on 20 May, 1920; that payment not having been made, this action was begun 23 June, 1921. The plaintiff introduced two witnesses to the above effect. The defendant offered no evidence, and upon the charge of the court, to which there was no exception, the jury returned a verdict on the first issue: \u201c$66.20, amount of claim.\u201d\nAs to the second issue, the court instructed the jury that if they found the amount of damages to be less than the amount claimed to answer \u2014 \u201cNothing,\u201d but if they found the amount to be that of the claim to answer \u201c$50,\u201d the penalty allowed by law. It was not denied that the claim had remained unpaid more than a year after it was filed with the defendant.\nThe jury having answered the second issue as to the penalty \u201cNo penalty,\u201d the court set aside the verdict and directed the case to be tried by a jury as to that issue. The court instructed the jury that if they believed the evidence, which was the same as above set out, to answer the issue as to the penalty $50, and the jury responded accordingly.\nThe defendant excepted to setting aside the verdict on the second issue, and that the court erred in instructing the jury on the second trial of that issue that if they believed the evidence to answer the issue, \u201cThe penalty $50.\u201d\nThere was no error in either particular. The jury having committed a palpable error in response to the second issue, it was the duty of the judge to set aside the verdict on that issue to prevent a miscarriage of justice. In Benton v. Collins, 125 N. C., 90, the Court said: \u201cOn the question as to the power of the Superior Court to grant new trials on one or more of several issues, and to let the others stand, and the practice of this Court to order new trials on particular or restricted issues, the authorities are numerous, and cover a long series of years. The following are some of them\u201d: (Here followed a long list of authorities), adding: \u201cBefore such partial new trial, however, is granted, it should clearly appear that the matter involved is entirely distinct and separable from the matters involved in the other issues, and that the new. trial can be had without danger of complication with other matters.\u201d .\nIn this case the penalty was an entirely separate and distinct matter, and the jury having found the amount of the damages to be as claimed, the penalty followed as a matter of law. C. S., 3524, and upon the finding of the first issue the judge might have added the penalty of the judgment as a matter of law. It was unnecessary to submit the issue again to a jury, but the defendants cannot complain of this, and the jury, upon the same evidence, answered the issue $50.\nIn Sumrell v. R. R., 152 N. C., 269, the Court held that in an action of this kind, when the finding of the jury is \u201cfor the full amount of the damages, the plaintiff is entitled to recover the penalty.\u201d The right to the penalty attached automatically upon this finding on the first issue, and judgment could have been rendered by the court for the penalty as a matter of law, without submitting the issue to the jury.\nThe case does not come up on the two separate appeals, which we \u2022condemned in Cement Co. v. Phillips, 182 N. C., 440, citing Joyner v. Reflector Co., 176 N. C., 277, and other cases, but the court properly rendered a judgment upon the whole case, and we find\nNo error.", "type": "majority", "author": "Clakk, C. J." } ], "attorneys": [ "Don Gilliam for plaintiffs.", "Bridgers & Bourne for defendc\u00fant." ], "corrections": "", "head_matter": "W. T. HUSSEY et al., Trading as ENTERPRISE CARRIAGE COMPANY, v. ATLANTIC COAST LINE RAILROAD COMPANY.\n(Filed 22 February, 1922.)\n1. Appeal and Error \u2014 Courts\u2014Verdict Set Aside on One Issue.\nWhen it appears from tbe evidence, the charge of the court, and the verdict that the jury has committed a palpable error in the answer to one of the issues, it is the duty of the trial judge to set it aside to prevent a miscarriage of justice.\n2. Same \u2014 Railroads\u2014Damages\u2014Penalties\u2014Statutes\u2014New Trials.\nIn an action against a railroad company to recover damages to a shipment of goods and the penalty for the failure of defendant to pay the same within 90 days, as allowed by O. S., 3524, the issues raised are entirely separate and distinct from each other, and the trial judge may \u25a0 set aside the verdict on the second issue, and retain that on the first one, for a retrial.\n3. Same \u2014 Evidence\u2014Instructions\u2014Questions of Law.\nIn the plaintiff\u2019s action to recover damages against a railroad company to a shipment of goods and a penalty for the failure of the defendant to pay the claim for 90 days, C. S., 3524, and the evid\u00e9nce tends only to sustain the plaintiff\u2019s demand, on both issu\u00e9s, the judge may retain the verdict on the issue of damages answered in plaintiff\u2019s favor, set aside the verdict on the second issue denying recovery of the penalty, and on the retrial of the second issue direct a verdict thereupon, on the same evidence, in plaintiff\u2019s favor. Semble, the court could have so answered this issue as a matter of law on the first trial.\n4. Appeal and Error \u2014 Fragmentary Appeals \u2014 Separate Issues \u2014 Judgment \u2014Verdict.\nWhere the trial judge has set aside the verdict on one of the issues submitted, and after the retrial on the second issue appeal has been taken from a judgment on the whole case, it does not come within the objection under the decision of Cement Co. v. Phillips, 182 N. C., 440.\nAppeal from Allen, J., at November Term, 1921, of Edgecombe.\nDon Gilliam for plaintiffs.\nBridgers & Bourne for defendc\u00fant." }, "file_name": "0007-01", "first_page_order": 67, "last_page_order": 69 }