Skyland Hosiery Co. v. American Ry. Express Co.

• Decision Date: 13 December 1922
• Docket Number: 511.
• Citation: 114 S.E. 823,184 N.C. 478
• Parties: SKYLAND HOSIERY CO. v. AMERICAN RY. EXPRESS CO.
• Court: North Carolina Supreme Court

114 S.E. 823

184 N.C. 478

SKYLAND HOSIERY CO. v. AMERICAN RY. EXPRESS CO.

No. 511.

Supreme Court of North Carolina

December 13, 1922

Appeal from Superior Court, Henderson County; Lane, Judge.

Action by the Skyland Hosiery Company against the American Railway Express Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded for a new trial.

The rule fixing the burden of proof is important in the administration of justice, and constitutes a substantial right of the party on whose adversary the burden rests, and therefore it should be carefully guarded and rigidly enforced.

Civil action to recover damages for failure to carry and to deliver a certain amount of money. Upon denial of liability, and issues joined, the jury returned the following verdict:

"1. Was the currency in controversy delivered to the defendant at its office in Hendersonville, as alleged? Ans. Yes.

2. Was said currency delivered to the plaintiff by the defendant at its office in Flat Rock, as alleged? Ans. No.

3. Was claim in writing for the alleged loss of money presented to the agent of the defendant company by the plaintiff within 90 days from the date of the alleged loss, as provided in contract of shipment between plaintiff and defendant? Ans. No.

4. Was there a waiver of the right to have such claim made on the part of the defendant? Ans. Yes.

5. Was suit to recover for said alleged loss of money commenced within one year after said alleged loss by the plaintiff? Ans. No.

6. Was there a waiver of such agreement on the part of the defendant? Ans. Yes.

7. What amount, if any, is the plaintiff entitled to recover of the defendant? Ans. $730 and 6 per cent. interest from time of cause of claim, September 20, 1919, to this date June 5, 1922."

From a judgment on the verdict in favor of plaintiff, the defendant appealed.

Michael Schenck, of Hendersonville, for appellant.

Smith & Arledge, of Hendersonville, for appellee.

STACY J.

It was alleged by the plaintiff that on September 19, 1919, the First Bank & Trust Company of Hendersonville, N. C delivered to the American Railway Express Company a bag of money containing $730 in currency (treasury certificates) and $379.95 in silver coin, making a total of $1,109.95; the same being consigned to the Skyland Hosiery Company at Flat Rock N.C. When the defendant delivered said bag to the plaintiff on the following day, it was ascertained, according to the plaintiff's allegation, that the $730 in "currency" had been removed therefrom.

The defendant admitted receipt of a sealed bag said to contain money, but denied, for want of sufficient knowledge or information, that it contained the treasury certificates, as alleged, and specifically denied that any amount of money was taken from said bag while in its possession or custody. The defendant further alleged that the bag was delivered to the plaintiff at Flat Rock in the same condition, with the same contents, and under the same seal as when received by it at Hendersonville; that the plaintiff gave a clear receipt therefor; and that the plaintiff also failed to comply with the contract of shipment with respect to filing written notice of claim and instituting suit within the time limits stipulated therein.

It was admitted, on the trial, by both parties, that the bag in question was sealed when received by the defendant, and that it was also sealed when delivered to the plaintiff. It will be noted that the issues relate only to the "currency," and not to the entire contents of the bag, as it is conceded the silver coin or specie was received by the plaintiff.

With respect to the second issue, which was submitted over objection, his honor placed the burden of proof on the defendant. In this we think there was error. In the first place, the issue as framed can hardly be said to arise on the pleadings. The defendant did not allege that it delivered the currency. It alleged that it delivered whatever it received. The plaintiff received the bag in a sealed condition, and it is admitted that no agent of the defendant was present when it was opened by the plaintiff. As to what it...