Action, tried upon the following issues:
1. Were the goods sued for delivered to the defendant? Answer: Yes. (521) *Page 424
2. If so, did the defendant deliver the goods sued for to the plaintiff? Answer: No.
3. In what amount, if anything, is the plaintiff entitled to recover from the defendant? Answer: $647.55 7.00 ------- $654.55, with interest from 1 May, 1910.
The defendant appealed. Defendant excepted to reading the depositions of certain witnesses because the names of the particular witnesses were not specified in the commission, although names of other witnesses were given.
Much space is given to discussion of this exception in briefs of counsel for plaintiff and defendant.
It appears that the depositions of the same witnesses were regularly taken the second time and both sets of depositions were introduced by plaintiff on the trial.
As the second set of depositions are practically identical with the first, we think the admission of the first set introduced entirely harmless. It is therefore unnecessary to discuss their regularity.
This was an action to recover the value of a case of clothing shipped to plaintiff at Mount Tabor, N.C. from Baltimore, Md. There were two cases of clothing in the shipment, one of which was safely delivered, but the other was not. Plaintiff proved the purchase of the goods, their value, delivery to defendant for transportation, and nondelivery at destination. Plaintiff also offered the freight bill for the two cases of clothing, marked upon its face by defendant's agent at destination "One case short." Defendant admitted receiving the goods, but alleged that it had made delivery to plaintiff. The agent explained his marking the (522) freight bill "one case short" by saying he thought it was a bill for a case of whiskey that was short.
His Honor charged the jury: "Defendant, on the other hand, admits that one box or case addressed to Sam Dunie at Mount Tabor was missing and checked short, but defendant contends that it was a box or case of whiskey, and that it was not the goods claimed by the plaintiff. The court charges you, however, that as the agent of the defendant admits that he wrote the word `short' upon the freight bill which called upon its face for two boxes of clothing weighing 1,249 pounds, that this is an admission, prima facie, on the part of the defendant that one of the cases of goods called for in said freight bill was in fact short, *Page 425 or missing, and that the burden is therefore placed upon the defendant to show that the agent made a mistake and wrote the word `short' on said freight bill unintentionally or thinking it was for another shipment."
We think his Honor rather inaptly used the words "prima facie," but we do not regard it as at all injurious to defendant. The writing by the agent of the words "one case short" on the bill of lading handed to agent by plaintiff was an act within the agent's scope of duty, and is evidence against the defendant tending to prove that the case was never delivered to plaintiff. The charge of his Honor, that it put the burden on defendant to show that the agent made a mistake, was tantamount to telling the jury that the defendant must explain such entry.
The burden of proof of delivery of the goods, the receipt thereof being admitted, is cast by law on the defendant, and upon failure to satisfy the jury by the preponderance of evidence that the case of goods was delivered, the defendant is liable for its value.
We think the issue involved was entirely one of fact, and we find no substantial error in submitting it to the jury.
No error.