#### THE SKYLAND HOSIERY COMPANY v. AMERICAN RAILWAY EXPRESS COMPANY.

(Filed 13 December, 1922.)

1. Evidence — Burden of Proof — Carriers of Goods — Express Companies— Loss of Shipment — Trials—Appeal and Error.

In an action against an express company to recover a certain amount of currency alleged to have been stolen while in the defendant’s possession under its contract of carriage, and delivered to it in a bag also containing silver money, sealed and delivered in the same condition to the plaintiff, the consignee, and opened by the plaintiff in the absence of the defendant’s agents or employees, when the loss was first discovered, the burden' of proof is on the plaintiff to show this fact in issue, upon the principle that this particular fact, necessary to be proved, was peculiarly within the plaintiff’s knowledge, and this principle involving an important and indispensable right, it is reversible error for the trial judge to place the burden of proof thereof upon the defendant.

2. Same.

In an action against a common carrier to recover for the loss of or damage to a shipment of goods under a contract of carriage, the plaintiff must show the delivery to the carrier; an undertaking on the carrier’s part, express or implied, to transport them; a failure of the carrier to perform its contract or duty, i. e., nondelivery of the goods or delivery in a damaged condition; and upon the failure of the plaintiff to thus make out a prima facie case the carrier is not required to offer any evidence.

3. Carriers of Goods — Express Companies — Contracts—Waiver—Limitation by Contract.

The principles of law involved in this action to recover for a part loss in the shipment of currency, etc., while in defendant company’s possession under its contract of carriage, relating to a waiver by the defendant of the stipulation that demands for the alleged loss be made against the carrier in ninety days, etc., and the commencement of the suit within a year, etc., are decided in Dixon v. Davis, ante, 207; Thigpen v. R. R., ante, 33.

Appeal by defendant from Lane, J., at the May Term, 1922, of HENDERSON.

Civil action to recover damages for failure to carry and to deliver a certain amount of money.

Upon denial of liability, and issues joined, tbe jury returned tbe following verdict:

“1. Was tbe currency in controversy delivered to tbe defendant at its office in Hendersonville, as alleged? Answer: ‘Yes.’

“2. Was said currency delivered to tbe plaintiif by tbe defendant at its office in Flat Eock, as alleged? Answer: ‘No.’

*479“3. Was claim in writing for tbe alleged loss of money presented to tbe agent of tbe defendant company by tbe plaintiff witbin 90 days from the date of tbe alleged loss, as provided in contract of shipment between plaintiff and defendant? Answer: ‘No.’

“4. Was there a waiver of the right to have such claim made on tbe part of tbe defendant? Answer: ‘Yes.’

“5. Was suit to recover for said alleged loss of money commenced witbin one year after said alleged loss by tbe plaintiff? Answer: No.’

“6. Was there a waiver of such agreement on tbe part of the defendant? Answer:‘Yes.’

“7. What amount, if any, is tbe plaintiff entitled to recover of tbe defendant? Answer: ‘$730, and 6 per cent interest from time of cause of claim, 20 September, 1919, to this date, 5 June, 1922.’ ”

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

Smith & Arledge for plaintiff.

Michael Schenclc for defendant.

Stacy, J.

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 currency (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 tbe 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 knowledge or information, that it contained tbe treasury certificates, as alleged, and specifically 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 Eock in tbe same condition, with tbe same contents, and under tbe same seal as when received 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 respect to filing written notice of claim, and instituting suit witbin tbe time limits stipulated therein.

It was admitted on tbe trial by both parties that tbe bag in question was sealed when received by tbe defendant, and that it was also sealed *480when 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 tbe defendant. In tbis we think there was error. In tbe first place, tbe issue, as framed, can hardly be said to arise on tbe pleadings. Tbe defendant did not allege tbat it delivered tbe currency. It alleged tbat it delivered whatever it received. Tbe plaintiff received tbe bag in a sealed 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 knowledge of tbe plaintiff. It is a rule of practically universal acceptance tbat where a particular fact, necessary to be proved, rests peculiarly within tbe knowledge of a party, upon him tbe law casts tbe burden of proving such fact. Re the Medea, 179 Fed., 786. Tbis is but a just and reasonable requirement, because tbe fact in issue, though it may amount to a negative in form, is capable of affirmative proof by tbe party who knows, or who can easily ascertain, tbe truth of tbe matter. “From tbe very nature of tbe question in dispute,” says Mr. Best, “all, or nearly all, tbe evidence tbat could be adduced respecting it must be in tbe possession of, or be easily attainable by, one of tbe contending parties, who accordingly could at once put an end to litigation by producing tbat evidence; while requiring bis adversary to establish bis case, because tbe affirmative lay on him, or because there was a presumption of law against him, would, if not amounting to injustice, at least be productive of expense and delay. In order to prevent tbis, it has been established as a general rule of evidence tbat tbe burden of proof lies on tbe person who wishes to support bis case by a particular fact wbicb lies more peculiarly within bis knowledge, or of wbicb be is supposed to be cognizant.” Principles of Evidence, sec. 274.

Tbe rule as to tbe burden of proof is important and indispensable in tbe administration of justice. It constitutes 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, 182 N. C., 798, and cases there cited.

In an action against a common 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, express or implied, to transport them; and (3) a failure to perform bis or its contract or duty, i. e., nondelivery 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 *481(as such), and tbeir nondelivery or delivery in a damaged condition.” Mitchell v. R. R., 124 N. C., 239. But until this much is established, the carrier is-not required to offer any evidence. Mfg. Co. v. R. R., 128 N. C., 284; Marquette, etc., R. Co. v. Kirkwood, 45 Mich., 51.

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.