It was alleged by tbe plaintiff that on 19 September, 3919, tbe First Bank and Trust Company of Hendersonville, N. C., delivered to tbe American Eailway Express Company a bag of money, containing $730 in currеncy (treasury certificates) and $379.95 in silver coin, making a total of $1,109.95, tbe same being consigned to tbe Skyland Hosiery Company at Flat Eock, N. C. When tbe defendant delivered said bag to tbе plaintiff on tbe following day it was ascertained, according to tbe plaintiff’s allegation, that tbe $730 in “currency” bad been removed therefrom.
Tbe defendant admitted receipt of a sealed bag, said to contain money, but denied, for want of sufficient knowledgе or information, that it contained tbe treasury certificates, as alleged, and spеcifically denied that any amount of money was taken from said bag while in its possession or custody.
Tbe defendant further alleged that tbe bag was delivered to tbe plaintiff at Flat Eоck in tbe same condition, with tbe same contents, and under tbe same seal as when reсeived by it at Hendersonville; that tbe plaintiff gave a clear receipt therefor; and that tbe plaintiff also failed to comply with tbe contract of shipment with respеct to filing written notice of claim, and instituting suit witbin tbe time limits stipulated therein.
It was admitted on tbe trial by bоth parties that tbe bag in question was sealed when received by tbe defendant, and that it wаs also sealed
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when delivered to tbe plaintiff. It will be noted tbat tbe issues relate only to tbe “currency” and not to tbe entire contents of tbe bag, as it is conceded tbe silver coin or specie was received by tbe plaintiff. With respect to tbe second issue, wbicb was submitted over objection, bis Honor placed tbe burden of proof on tbе defendant. In tbis we think there was error. In tbe first place, tbe issue, as framed, can hardly be sаid to arise on tbe pleadings. Tbe defendant did not
allege
tbat it delivered tbe currency. It allegеd tbat it delivered whatever it received. Tbe plaintiff received tbe bag in a sealеd condition, and it is admitted tbat no agent of tbe defendant was present when it was opened by tbe plaintiff. As to what it contained at tbat time is a fact peculiarly within tbe knowledgе of tbe plaintiff. It is a rule of practically universal acceptance tbat whеre a particular fact, necessary to be proved, rests peculiarly within tbe knоwledge of a party, upon him tbe law casts tbe burden of proving such fact.
Re the Medea,
Tbe rule as to tbe burden of proof is important and indispensable in tbe administration of justice. It cоnstitutes a substantial right of tbe party upon whose adversary tbe burden rests; and, therefore, it should be carefully guarded and rigidly enforced by tbe courts.
S. v. Falkner,
In an action against a commоn carrier to recover for tbe loss of or damages to a shipment of goods, tbe plaintiff must show: (1) delivery of tbe goods to the carrier; (2) an undertaking on bis or its part, exprеss or implied, to transport them; and (3) a failure to perform bis or its contract or duty,
i. e.,
nondеlivery of tbe goods or delivery in a damaged condition. 4 R. C. L., 915; 10 O. J., 372. “Tbe plaintiff has a
prima facie
case when be shows tbe receipt of goods by tbe carrier
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(as such), and tbеir nondelivery or delivery in a damaged condition.”
Mitchell v. R. R.,
With respect to the remaining exceptions, those relating to the third and fifth issues, we are content to refer to the cases of Dixon v. Davis, ante, 207, and Thigpen v. R. R., ante, 33.
For the error, as indicated, the cause must be remanded for another ■trial.
New trial.