Brown v. . Express, Co. , 192 N.C. 25 ( 1926 )

The determination of the merits of this controversy depends upon whether or not it was incumbent upon the plaintiff to offer evidence tending to prove that the hogs were originally delivered to the defendant in good condition. In Hosiery Co. v. Express Co., 184 N.C. 480, Stacy, J., declares the law to be: "In an action against a common carrier to recover for the loss of or damages to a shipment of goods, the plaintiff must show: (1) delivery of goods to the carrier; (2) an undertaking on his or its part, express or implied, to transport them; and (3) a failure to perform his or its contract or duty, i. e., nondelivery, of the goods or delivery in a damaged condition. The plaintiff has a prima facie case when he shows the receipt of the goods by the carrier (as such), and their nondelivery or delivery in a damaged condition. But until this much is established the carrier is not required to offer any evidence."

It will be observed that this is a suit by the consignee who lived in North Carolina, and who was the owner of the property. "Among connecting lines of common carriers, that one in whose hands goods are found damaged is presumed to have caused the damage, and the burden is upon it to rebut the presumption." Mfg. Co. v. R. R., 121 N.C. 514; Hinkle v.R. R., 126 N.C. 937.

The plaintiff introduced in evidence an express receipt issued by the defendant, as follows:

"1-17-24. "Mr. R. H. Brown, "Andrews, N.C.

"To Southeastern Express Co., Dr. (Incorporated).

"For transportation of the following described shipment: Waybill No. 6648; date 1-16-24; article and value: 2 D. hogs; weight 505; shipper Chas. Burrus; point of origin, Madisonville, Tenn. Total charges $6.01. Received payment, J. A. Morgan."

Conceding that it was incumbent upon the plaintiff to offer evidence tending to show that the property was originally delivered to the carrier in good condition, the express receipt or bill of lading is evidence of the fact that the merchandise was delivered in good condition in the absence of notation or entry thereon to the contrary. This rule of evidence was expressly declared in Sumrell v. R. R., 152 N.C. 269, as follows: "The court properly refused the defendant's prayer for nonsuit, and also to charge that there was no evidence that the goods were delivered in good order to the defendant. The bill of lading raised the presumption."

No error.