February 12, 1924. The opinion of the Court was delivered by The following statement appears in the record:
"This action was commenced in August, 1917, to recover $441.50, the alleged value of 10 bales of burnt cotton delivered by the plaintiff to the defendant, in good order, on or about November 13, 1916, for prompt transportation and delivery to A.R. Durkee Company, plaintiff's agents in Philadelphia, Pa., and which is alleged to have been `delayed, injured, damaged and wholly lost, to plaintiff's injury and damage the value thereof,' by defendant's reckless, willful, wanton, and negligent conduct in regard thereto.
"For a first defense, the defendant admits the receipt of the cotton for transportation and delivery in Philadelphia as alleged, but alleges that it has not sufficient information to form a belief as to the condition or value of the cotton, and that the same was received by its agent without authority and in disregard and violation of his instructions and of defendant's published rules and regulations, which had been filed with and approved and authorized by the Interstate Commerce Commission; and the defendant denies each and every other allegation of the complaint.
"For a second defense, the defendant alleges that on the 3d day of May, 1913, it filed with the Interstate Commerce Commission at Washington, D.C., its circular N.W. No. 664 (I.C.C. No. A-2843) wherein and whereby it was and is required that when shipments of burnt cotton are offered for forwarding, the defendant's agents must require shippers to furnish a full history of the same, giving the time of fire, number of bales, condition of cotton (that is, whether wet or not, and entirely free from fire), condition of covering, and any other information that may be of assistance, and that such information must be forwarded to the office of the defendant's general freight agent at Norfolk, Va., *Page 148 and that defendant's agents must decline to receive any shipment of burnt cotton except upon specific authority from the defendant; that the cotton described in the complaint was delivered to the defendant without compliance with, but in violation of, the requirements of the said circular which had been duly approved and authorized by the Interstate Commerce Commission, and was published in the manner prescribed by law and by the regulations of the said Interstate Commerce Commission, and that the defendant's agent was not authorized to accept said cotton for shipment, but received the same in violation of the requirements of the said circular, and that the defendant is therefore not liable for loss of or damage to the said cotton.
"The case was tried before Hon. S.W.G. Shipp, presiding Judge, and a jury, at Darlington on November 13, 1922, and resulted in a verdict for the plaintiff for $176.60.
"The defendant moved for a new trial on the grounds that there was no evidence to support the verdict, and that the trial Judge had erred in refusing the defendant's fourth and sixth requests to charge, which hereinafter appear. This motion was refused and the defendant appeals from the judgment on said verdict."
The defendant appealed upon the following exceptions:
"I. That his Honor, the presiding Judge, erred in refusing defendant's request that he instruct the jury as follows: `Mr. Sumner has alleged that A.R. Durkee Co., of Philadelphia, Pa., were his agents. If and when they received notice of the arrival of the cotton in question, it was their duty to receive it, and Mr. Sumner would be responsible and liable for all proper storage charges that accrued after refusal to receive it,' and in instructing the jury that they need not concern themselves with any storage charge at all.
"II. That his Honor, the presiding Judge, erred in refusing defendant's request that he instruct the jury as follows: *Page 149 `Mr. Sumner has alleged that A.R. Durkee Co. were his agents. If they received notice of the arrival of the cotton and refused to receive it, the lawful expenses of the sale are properly deductible from the proceeds of sale, if the cotton was sold, according to law; and such expenses must be paid by Mr. Sumner.'
"III. That his Honor, the presiding Judge, erred in refusing defendant's request that he instruct the jury as follows: `There being no evidence of any injury to or conversion of the cotton in question, the measure of damages is the difference between the market value of the cotton when it should have arrived and such value when it did arrive. Therefore, even if it were admitted that the defendant, Seaboard Air Line Railway Company, is liable for any amount, Mr. Sumner would not recover, in any event, more than the difference between the value of the cotton at the time when it should have arrived and such value when it did arrive; and he cannot recover any difference in value if, at any time after the cotton arrived, he or his agents could have accepted and sold the same without any loss, but refused to do so.'
"IV. That his Honor, the presiding Judge, erred in refusing defendant's request that he instruct the jury as follows: `The requirements of Seaboard Air Line Railway tariff or circular I.C.C. No. A-2843, are binding upon Mr. Sumner as well as upon the Seaboard, and could not be waived, and Mr. Sumner cannot recover any loss on account of delay in the transportation of the cotton resulting from noncompliance with the provisions of the said tariff or circular.'
"V. That his Honor, the presiding Judge, erred in refusing defendant's request that he instruct the jury as follows: `If the cotton was offered to Mr. Sumner, through his attorneys, after this action was commenced and he failed or refused to accept the same, and if, at the time, the cotton was worth as much as or more than it was worth when it should have arrived in Philadelphia, and if by then accepting it he *Page 150 would have suffered no loss, he cannot recover any amount, and your verdict must be for the defendant.'
"VI. That there is no evidence to support the verdict of the jury, and the Circuit Judge erred in refusing defendant's motion for a new trial on that ground."
The reasons why the exceptions numbered 1, 2, 3, 4, and 5 cannot be sustained are fully stated in the charge of his Honor, the presiding Judge, which will be incorporated in the report of the case, as the questions presented by the exceptions can be more clearly understood when the charge is considered in its entirety.
The sixth exception cannot be sustained for the reason that there was testimony tending to support the verdict, and for the additional reason that there was neither a motion for a nonsuit nor the direction of a verdict, as required by rule 77 of the Circuit Court, which provides that —
"The point that there is no alleged evidence to support a cause of action shall be first made either by a motion for a nonsuit or a motion to direct the verdict."
Appeal dismissed.
MESSRS. JUSTICES WATTS, FRASER, COTHRAN and MARION concur.