This
action was brought before a Justice of the Peace to recover
$91.55, deposited in defendant bank and not accounted for by
defendant to plaintiff. The judgment of the Justice of the
Peace was in favor of plaintiff, for amount sued for, which
was appealed from to the Superior Court. The appeal
certificate has this in it: "Plaintiff complained for
the sum of Ninety One and 55/100 Dollars, with interest and
cost, due by and on account of money deposited with said
defendant and paid out without authority by said defendant
and refusal, and now demanded by said plaintiff. Defendant
failed to answer or demur to the complaint. Mr. V. M. Forrest
stating that his only purpose of being present was to file
notice of appeal."
In
the Superior Court the following answer was made by
defendant: "The defendant State Bank & Trust
Company, in answer to the complaint of the plaintiff, in
which it is alleged that the defendant is indebted to the
plaintiff in the sum of $91.55, with interest thereon from
April 1, 1939, until paid, and on account of money deposited
with the defendant and by it paid out without authority of
plaintiff to do so, and which the defendant has refused to
pay to the plaintiff though he is justly due the same
alleges and says: 1. That the said allegations are untrue and
therefore denied. 2. That if the Court should find that the
defendant has paid out money of the plaintiff on deposit with
the defendant, as alleged, that the same was done on account
of the plaintiff's neglect which proximately contributed
to the payment of checks as alleged."
The
issue submitted to the jury was: "In what amount, if
any, is the defendant
indebted to the plaintiff?" The jury
answered: "$91.55." The Court below gave judgment
on the verdict. The defendant made several assignments of
error and appealed to the Supreme Court. The material ones
and necessary facts will be set forth in the opinion.
CLARKSON
Justice.
The
first question presented by defendant: "Was the Court in
error in not defining 'greater weight' or
'preponderance of the evidence'?" We think not.
The
burden of proof is a substantial right. Fisher v
Jackson, 216 N.C. 302, 304, 4 S.E.2d 847.
In
Wilson v. Inter-Ocean Casualty Co., 210 N.C. 585,
590, 188 S.E. 102, 105, it is written: "The defendant
contended that in the first two above excerpts from the
charge it was the duty of the court below in the charge to
the jury to have defined what constituted the greater weight
of the evidence, and in failing to do so the court committed
error. C.S. § 564. We cannot so hold. The burden of proof is
on the party who substantially asserts the affirmative of the
issue, whether he be nominally plaintiff or defendant. The
burden of proof is on the party holding the affirmative. It
constitutes a substantial right. Hunt v. Eure, 189
N.C. 482, 127 S.E. 593; Boone v. Collins, 202 N.C.
12, 161 S.E. 543 Stein v. Levins, 205 N.C. 302, 306,
171 S.E. 96. A preponderance of the evidence or by the
greater weight is all that is quired in a civil action. If
the defendant desired more elaborate instructions on a
subordinate feature, it should have submitted an appropriate
prayer. State v. Gore, 207 N.C. 618, 178 S.E. 209;
State v. Anderson, 208 N.C. 771, 788, 182 S.E. 643."
The
court below instructed the jury: "The Court instructs
you as a matter of law that where a deposit is made in a bank
the burden is upon that bank to satisfy the jury by evidence
and by its greater weight, that is by a preponderance of the
evidence, that payments on that account were made by the bank
in a proper and orderly way, that is upon the authority of
the depositor. *** And the burden is upon the bank to show
the disposition made of the funds of a depositor into that
bank." Again, on page 27 of the Record, we find:
"And if the defendant bank has carried that burden and
has satisfied you from the evidence and by its greater
weight, or by a preponderance of the evidence, that the
disbursements of the funds was regularly made, that is, made
upon the order of the depositor upon checks being presented
on that account bearing the signature of the depositor, and
the depositor himself was the author of that signature, or
the signature had been placed thereon by somebody else under
his direction or acting for and on behalf of the depositor,
then the bank would not be entitled to pay to the plaintiff
the sum of $91.55. If the bank has satisfied you by a
preponderance of the evidence or by its greater weight that
these payments were made upon the authority of the depositor
either by checks drawn by him bearing his own signature or by
checks drawn by somebody else under his authority and
direction the bank would have discharged its full duty and
would not be indebted to the plaintiff in any sum
whatsoever." There was no specific exception to this
charge. We see no error in the charge.
In
Bank v. Thompson, 174 N.C. 349, 93 S.E. 849, we
find: "Where a bank sues its depositor on a note, with
counterclaim set up in the answer that the bank had funds of
the defendant on deposit which it had paid out on
unauthorized checks, and both the execution of the note sued
on and the amount of the deposit are admitted: Held, banks
assume the responsibility for the erroneous payment...
