#### J. R. NEWBERN v. WESTERN UNION TELEGRAPH CO.

(Filed 12 September, 1928.)

Appeal and Error — Determination and Disposition of Cause— Proceedings in Lower Court After Remand — Law of the Case.

Where it plainly appears from the pleadings, records and briefs on a former appeal to an opinion of the Supreme Court that all matters involved therein had been decided adversely to the appellant except one upon which a new trial had been ordered, the decision thereon is the law of the case and will not be considered again upon a second appeal involving them. o

Civil actioN, before *Clayton Moore, Special Judge,*at June Term, 1928, of PasquotaNK.

The plaintiff brought an action against the defendant for damages for negligence in the transmission of a telegram for the sale of sweet potatoes.

Issues of negligence, contributory negligence, notice and damages were submitted to the jury and answered in favor of the plaintiff. The jury awarded $500.00 damages. From judgment upon the verdict the defendant appealed.

*Aydlett & Simpson for plaintiff.*

*C. W. Tillett, Thompson & Wilson for defendant.*

BeogdeN, J.

This cause was considered by the Court, on a former appeal, from a judgment of nonsuit, and is reported in 195 N. C., 258, where the facts are fully set out. The questions then presented to this Court for consideration were thus stated: “The defendant denied negligence and set up: (1) the plea of contributory negligence; and (2), that the plaintiff failed to present his claim for damages in writing within sixty days after the alleged message was filed for transmission.” In the former opinion the Court declares: “We think the court below was in error in sustaining defendant’s motion for judgment as in ease *15of nonsuit under C. S., 567 . ... We do not repeat or discuss tbe evidence as tbe case goes back to tbe court below to be tried on tbe issue arising on tbe pleadings.”

Tbe pleadings in tbe former case are identical witb those in tbe ease at bar and raise issues of negligence, contributory negligence, notice and damages. While tbe opinion discussed tbe aspect of notice only, a consideration of all that was set out in tbe former appeal clearly indicates that tbe Court was of tbe opinion, and so decided that tbe case should be submitted to tbe jury upon its merits and upon all issues arising upon tbe pleadings. This conclusion is fortified by tbe fact that defendant’s brief in tbe former appeal specifically urged tbe contributory negligence of plaintiff as a bar to bis right of recovery, because such contributory negligence “was tbe proximate cause of tbe alleged damages.” Authority was cited in support of tbe position so taken by tbe defendant. Tbe former opinion therefore becomes the law of tbe case; that is to say, “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.” *Ray v. Veneer Co.,*188 N. C., 414, 124 S. E., 756; *Mfg. Co. v. Hodgins,*192 N. C., 577, 135 S. E., 466.

Tbe evidence tending to show that tbe plaintiff delivered to tbe carrier sweet potatoes, as specified in tbe contract, was uncertain, weak and hazy, and tbe jury might well have found that tbe plaintiff bad not delivered potatoes of tbe quality specified in tbe contract of purchase. However, upon a close examination of tbe testimony in a light most favorable to tbe plaintiff, we cannot say that there was no evidence of such delivery.

No error.