
    HAMLET GROCERY COMPANY v. SOUTHERN RAILWAY COMPANY.
    (Filed 1 December, 1915.)
    Penalty Statutes — Consignor Aggrieved — Filing Claim — Origin of Shipment.
    A consignor of. a shipment of goods is required by the statute to file his claim with the agent of the common carrier at the point of its origin, and this he must have done to maintain his action against the carrier for the penalty prescribed for its failure to settle for its loss, or damage thereto, within ninety days, etc. Revisal, sec. 2634.
    Allen, J., concurring in part; Hoke, J., concurring in the opinion of Aleen, J.; Clark, C. J., dissenting.
    Appeal by defendant from Allen, J., at April Term, 1915, of Hoke.
    Civil action tried upon a waiver of trial by jury.
    It appears by the findings of fact that, on 20 October, 1913, the E. J. Eeynolds Tobacco Company, as consignor, at the request of the plaintiff, delivered to the Southern Eailway Company, at Winston, N. C., twenty caddies of tobacco and received from it for transportation and delivery to Farmers Furnishing Company at Eaeford, N. O., a bill of lading, describing the tobacco company as consignor, by which the railway company agreed to ship the tobacco to the Farmers Furnishing Company, as consignee, at Eaeford, N. C., the freight being prepaid. Ten of the caddies were safely delivered in sound condition, and the ten others were lost by the Southern Eailway Company while they were in its possession. It is stated in 'the case, as one of the facts found by the judge, “that the said Farmers Furnishing Company. charged the value of the lost caddies of tobacco, to wit, $34, to the plaintiff, Hamlet Grocery Company, from whom it had purchased the same, and transferred and released to the plaintiff its claim for the loss”; but it does not appear when this was done. On 9 December, 1913, plaintiff filed a written claim for said loss with the agent of the Aberdeen and Bock-fish Eailroad Company at Eaeford, N. 0., which consisted of certain papers, to wit, bill of lading and a written statement, not verified, of the account, charging said A. & E. E. Company with the value of the ten boxes of tobacco which were lost, or $34, and which further stated that they had been shipped by. the Eeynolds Tobacco Company for plaintiff’s account to the Farmers Furnishing Company, were lost and the claim for their value transferred by the Farmers Furnishing Company to plaintiff by release. No claim was filed with, the defendant’s agent at the point where the goods were delivered by it, or its agent, to the next common carrier in the course of transportation, nor does it appear that, at the time the claim was filed with the agent of the A. & R. R. Company at Raeford, N. C., the defendant, or said A. & R. R. Company, or any of the carriers, in the connecting line, or their agents, had knowledge of any transfer of its claim for damages by the Farmers Furnishing Company to the plaintiff, except only information given by the claim itself. The part of the statute relevant to this ease is as follows :
    “Every claim for loss of or damage to property while in possession of a common carrier shall be adjusted and paid within ninety days in ease of shipments wholly within.the State, and within four months in case of shipments from without the State, after the filing of such claim with the agent of such carrier at the point of destination of such shipment, or point of delivery to another common carrier, by the consignee, or at the point of origin by the consignor, when it shall appear that the consignor was the owner of the shipment: Provided, that no such claim shall be filed until after the arrival of the shipment, or some part thereof, at the point of destination, or until after the lapse of a reasonable time for the arrival thereof. In every case such common carrier shall be liable for the amount of such loss or damage, together with interest thereon from the date of the filing of the claim therefor until the payment thereof.”
    The statute then imposes a penalty of fifty dollars for failure to adjust the claim within said period of time, “to be recovered by any consignee aggrieved (or the consignor, when it shall appear that the consignor was the owner of the property at the time of shipment and at the time of suit, and is therefore the party aggrieved).”
    It was agreed that the defendant formally tendered the $34, interest and costs, before the trial, and that said tender was rejected.
    The court gave judgment for the claim, $34, the penalty, $50, and the costs. Defendant appealed.
    
      J. W. Currie for plaintiff.
    
    
      Manly, Hendren & Womble and McIntyre, Lawrence <& Proctor for defendant.
    
   Waleer, J.,

after stating the case: We will consider the case upon three questions:

First. Plaintiff was not the consignee named in the bill of lading, which contains the full contract with the carrier for the transportation and delivery of the tobacco. In the first place it is stated in the case that he had sold the goods to the Farmers Furnishing Company, and therefore the property in them passed at once to it. Secondly, the latter company was the consignee, according to the contract of shipment, and was so designated in the bill of lading. When the goods were lost and it transferred its claim to plaintiff, the property in the goods did not pass and plaintiff did not thereby become consignee, but only acquired the right to sue for the damages, or the value of the goods. Neither the Farmers Furnishing Company nor the plaintiff, nor both of them, had the right to change the contract of shipment, or the relation of the parties thereto, by making the plaintiff the consignee against the will or without the consent of the defendant as carrier. The plaintiff, by the transfer to him by the Farmers Furnishing Company, acquired a chose in action, or the right to recover the value of the goods as damages for a breach of the contract, as upon a conversion of them, and in no sense did he become consignee. Nor can the plaintiff recover as consignor. By selling the goods to, the plaintiff, and also by having them shipped by the Eeynolds Tobacco Company on an open bill of lading to the Farmers Furnishing Company, the absolute property in the goods passed to the latter and plaintiff retained no interest, legal or beneficial, in the goods. His only claim was for the price thereof, and he has not since acquired any interest in the goods as consignor, no more than he has as consignee, as we have shown, because the transfer to him was only for the value of the goods or damages, due to the Farmers Furnishing Company for their loss, that is, he got an open account for a sum of money due to it, and nothing more.

Second. If he had been consignor or consignee, he has not presented his claim as required by the statute, which requires that it shall be filed with the agent of the company that lost the goods; if it is the last carrier in the course of the shipment, then with his agent at the point of destination,” and if an intermediate carrier, then with his agent at the point of his delivery to another carrier, or at the point of origin by the consignor, if he has retained the ownership of the goods. The claim was filed with the agent of the A. & R. R. Company at Eaeford, N. 0., the point of destination, but that company did not lose the goods, as the case states, but the defendant company. Nor is the A. & E. E. Company sued in this action. It was not filed with defendant’s agent at the point where it delivered the goods to the next carrier in the route, nor was it filed by the consignor “at the point of origin,” even if he had any right to file it at all, and certainly he did not have this right as consignor. It is familiar learning that penal statutes must be strictly construed, and the plaintiff, before he is entitled to recover the penalty, must bring his case strictly within the language and meaning of the statute. They must be construed sensibly, as all other instruments, but not liberally, so as to stretch their meaning beyond what the words will warrant. 36 Cyc., 1185, 1186, 1181; Sears v. Whitaker, 136 N. C., 37. The Court, in Alexander v. R. R., 144 N. C., 93, 99, discussing a statute of the same kind as the one'under consideration, said: “Applying the rule by which courts should be guided in the construction of a penal statute, Bynum, J., in Coble v. Shoffner, 75 N. C., 42, says: ‘It cannot be construed by implication, or otherwise than by express letter. It cannot be extended, by even an equitable construction, beyond the plain import of its languáge. If, therefore, even the intent of the Legislature to embrace such a case was clear to the Court from the statute itself, we cannot so extend the act, because such a construction is beyond the plain import of the language used.’ It is said that we should see in the statute the evil intended to be remedied, and so construe it that such evil may be repressed and the remedy advanced. This is undoubtedly the general rule in the construction of statutes. This suggestion has been heretofore made and disposed of by the same learned judge. ‘In construing a penal statute, we are not allowed, as in the case of those which are not penal, to look at the motives or the mischief which was in the legislative mind. The rule is peremptory that the case must fall within the plain language of a penal statute before the penalty can attach.’ Ib., 44. As was said by Mr. Justice Ashe in Whitehead v. R. R., 87 N. C., 255: ‘The rigid rules of the common law with reference to the liability of common carriers should not be applied to a case involving the violation of a penal statute.’ Such has been the uniform rule of construction from the earliest times.”

And in Cox v. R. R., 148 N. C., 459, 460, the Court said, in discussing the same subject: “It is a well-established principle of law, applicable to corporations and individuals alike, that penal statutes are strictly construed, and that he who sues to recover a penalty awarded by the law must bring his case clearly within the language and meaning of the law. Sears v. Whitaker, 136 N. C., 37; Appenheimer v. R. R., 64 Ark., 27; 26 Am. and Eng. Enc. (2 Ed.), p. 658.” So we see that, by this ancient rule of the law, which has ever been approved and sanctioned by the courts, even to the present time, as one that is reasonable and just, we must hold the plaintiff to the strictest construction, and not broaden the meaning of the statute in his favor to include a case not within the words and, therefore, not within its intention. It seems that he has failed, at every point, to show his right to the penalty he now claims. It is ’not necessary to decide whether a penalty, such as this one is, can be assigned, for it has not been transferred, but only the debt, using that word in its general and comprehensive sense as meaning a sum of money due from one to another without regard to the form of the obligation or the manner in which it accrued.

Third. It appears that plaintiff, if he had any cause of action, has not filed his claim in due and proper form. The defendant, as carrier, was not bound to pay a claim to anybody who might present it. but only to the consignor or consignee named in the bill of lading, or if his claim for damages had been assigned, then there must be some reasonably satisfactory evidence of the assignment before he would be bound to pay, otherwise the carrier might be subjected to a double or even a greater liability. The ownership of the claim by the one who files it should be authenticated in some way. His mere assertion of ownership will not do. The carrier must make a true delivery, for, like any other bailee, he will act at his peril if he delivers to any one but him svho is entitled to receive the goods, and he is, therefore, entitled to evidence that the demand upon him is rightful. Here the bill of lading was not produced duly endorsed to plaintiff, or any other reliable evidence of his right to claim the damages tendered. The defendant was consequently in the exercise of its right when it refused to pay. 6 Oyc., 470, 471, 472. In this case, so far as the record shows, and the bill of lading, the consignee, Farmers Furnishing Company, was the only one entitled to receive the goods or to recover for their loss, as there was no legal evidence to the contrary.

It is suggested that defendant admitted the claim for damages, and therefore the right to recover the penalty followed as an incident. But this is not a logical, legal or just conclusion. The recovery of the claim for damages rests upon principles far different from those which entitle plaintiff to the penalty. The latter is governed by the provisions of the statute, and the former by the rules of the common law. It is admitted that the alleged right to the penalty was not assigned, and plaintiff does not sue as assignee, but as the “real consignor,” and as (therefore) the party aggrieved who is entitled to recover the penalty. But if he is the consignor, it was a condition precedent to his right to recover the penalty that he should have filed his claim at the place where the shipment originated, for the statute so provides. But the plaintiff was not the nominal or real consignor, who was the shipper, and, besides, as the goods were shipped on an open bill of lading the title passed, at once, on receipt of the goods by the carrier, to the consignee, and the consignor, even Eeynolds & Go., lost all interest in them, as much so as if they had sold and actually delivered them to the consignee, the Farmers Furnishing Company at Eaeford, N. C. It is not a fact which appears in the record, nor is it true according to plaintiff’s own showing, that the latter company gave to the plaintiff a statement of the consignee, which was attached to the claim- of loss filed with the railroad company (not this defendant) at Eaeford, showing that the plaintiff alone, by assignment, was interested in the loss, even if this would have availed the plaintiff so as to entitle it to recover the penalty.

The claim for damages contained only plaintiff’s own statement of certain matters upon which defendant, if the claim had been filed with it, was not bound to rely, or to accept as true. It is further contended that defendant should have objected, when the claim was filed at Rae-ford, that it was not done at Winston, the place from which the shipment started, the answer to which is conclusive, that there is only one earner sued, the Southern Railway Company, and it was not at Rae-ford to object when the claim was filed; and it may be added that the claim never was filed with this defendant, as the statute provided that it should be. It was not required of this defendant to state the grounds of objection to a recovery of the penalty, when the claim foii damages was filed with another company, or even if it had been properly filed with it. It denied the plaintiff’s right to recover the penalty, and it was then incumbent on the plaintiff to show that the penalty had accrued to it in the manner provided 'by the statute, which requires that a precise demand shall be made, in a specified way, and at the proper place, before any penalty shall be recovered. As the goods were lost on the line of defendant (Southern Railway Company), the claim and demand should have been made on it at the point where it delivered the goods to the next carrier in the line of transit. And this was not done, and nothing like it was done. This defendant never agreed to pay the claim for damages before this suit was brought, but after the case had passed from the court of the justice of the peace it agreed, in order to save costs, that judgment might be entered for the damages, as it would be ultimately liable for them, but it never waived anything in respect to plaintiff’s right to recover a penalty. It is not true, according to the record, in law or in fact, that R. J. Reynolds Co. had no interest in the shipment, and that the consignee at Raeford had none. As we have shown beyond any cavil of doubt, the Farmers Furnishing Company, the consignee at Raeford, had the entire interest in the goods when they were delivered to the carrier at Winston upon an open bill of lading. Buggy Corp. v. R. R., 152 N. C., 119; Gaskins v. R. R., 151 N. C., 18; Stone v. R. R., 144 N. C., 220; Hunter v. Randolph, 128 N. C., 91.

Justice Ilohe made this plain in Buggy Corporation v. R. R., supra, citing some of the above cases, when he said: “The principle indicated has of late been more frequently recognized and applied with us in actions against common carriers under the penalty statutes of the State in defining who is the ‘party aggrieved,’ designated in most of them as the person who may bring the suit, as in Stone v. R. R., 144 N. C., 220, but they are made to rest on the principle that where a vendor ships goods to a purchaser by a common carrier whose lines afford the usual route and ordinary method of shipment, and on a bill of lading of the kind described, the earner is considered the agent of the vendee, and on delivery to such carrier the title passes to such vendee, and thereafter, nothing else appearing, he is the real party interested in the proper performance of tbe contract. Hunter v. Randolph, 128 N, C., 91. And in Gaskins v. R. R., 151 N. C., 18, tbe doctrine was applied to a case directly involving tbe right of a consignor to maintain a suit for damages, wben it appeared, without more, that tbe goods bad been shipped to a purchaser on an open bill of lading; and it was held that tbe action would not lie.”

There is not tbe slightest evidence in this record that tbe plaintiff, as tbe seller of tbe goods, retained any interest whatever in them, but tbe entire property in them passed to tbe consignee, leaving to it only a cau.se of action for tbe price. Tbe buyer (consignee) bad no legal right to charge tbe goods back to tbe seller without bis consent, as tbe latter bad sold and delivered them to tbe carrier, and even with it be could not be made consignee, or restored to the position of consignor, if be ever held that relation to tbe shipment. There is no such alchemy known to tbe law.

We need not discuss tbe question as to tbe assignment of tbe penalty, as it was never assigned, as a fact, and besides if a penalty is generally assignable, this consignee could not assign tbe one claimed by tbe plaintiff, as it never bad any right to it, not having complied with tbe law which imposed it.

This case is not like Horton v. R. R., post, 883, for there tbe nominal consignee was tbe agent of bis wife, the real owner, and therefore tbe “consignee aggrieved,” within tbe words and meaning of tbe statute, and entitled to receive tbe goods and sue for tbe damage to them, as they bad been injured. We applied there tbe law of agency, and, as tbe plaintiff was acting through another as- agent, it was tbe same as if she bad been personally present and acting herself and in her own name (Qui facit per alium, facit per se). But here tbe Farmers Furnishing Company was not agent for plaintiff, but was nominally tbe consignee and really so, as it was acting for itself, being both legal and beneficial owner of tbe goods.

Tbe judgment is reversed as to tbe penalty, and judgment will be entered in tbe court below in favor of plaintiff for $34, with interest and costs to tbe date of tbe tender admitted.

Eeversed.

AxxeN, J.,

concurs in this opinion upon tbe ground that as tbe plaintiff, if a consignor, has not filed bis claim at tbe place where tbe shipment originated, as required by tbe statute of consignors, be cannot recover.

HoKE, J., concurs in concurring opinion of AlleN, J.

Clark, C. J.,

dissenting: This action was begun before a justice of tbe peace to recover $34 for tbe loss of ten caddies of tobacco shipped on plaintiff’s order from Winston, N. C., 20 October, 1913, by tbe R. J. Reynolds Tobacco Co. to Farmers Furnishing Co. at Raeford, N. C., which-were lost on the line of the defendant’s railroad and never delivered. The Farmers Furnishing Co. (who had not paid the plaintiff for the ten boxes) charged back the value of same ($34) to the plaintiff, by whose order the tobacco had been shipped, and released to the plaintiff all claim against the railroad company for the loss.

On 9 December, 1913, the plaintiff filed in writing with defendants claim for the loss, and the same not having been paid, after the lapse of more than six months, began this action on 29 June, 1914, to recover said sum of $34, with interest from 9 June, 1913, and the penalty of $50 for failure to adjust and pay said claim within the time allowed by law. A jury trial was waived, and the court having found the above facts, rendered judgment for said $34 and interest and for the $50 penalty and costs.

The defendants admitted the loss of the tobacco in transit, that the claim was filed by the plaintiff and failure to pay for ninety days, and in the Superior Court before trial tendered payment of the $34 and interest, but declined to pay the $50 penalty, on the ground that the plaintiff was not entitled to recover the penalty because .it was not assignable.

An action for a penalty is ex contractu, Katzenstein v. R. R., 84 N. C., 688, and citations thereto in Anno. Ed., and is therefore assignable. Petty v. Rousseau, 94 N. C., 355. An action for damages on account of a lost shipment and penalty for unreasonable delay in settlement of the claim can be joined in the same action, for both lie in contract. Robertson v. R. R., 148 N. C., 323; Jeans v. R. R., 164 N. C., 229; Laws 1911, ch. 139.

The plaintiff, however, does not sue as assignee, but as the real consignor and the “party aggrieved,” and therefore entitled to maintain this action for the loss and the penalty (which is an incident merely to the loss) under the general statute which requires an action to be brought “by the party in interest.” Revisal, 400; Petty v. Rousseau, 94 N. C., 355. The plaintiff bought the tobacco from the R. J. Reynolds Co. It was on its order that the shipment was made to the Farmers Furnishing Co., and it was therefore the real consignor, though the R. J. Reynolds Co. appeared in the bill of lading as the nominal consignor. The consignee charged back to the plaintiff the goods which it failed to receive and for which it had not paid, and gave to the plaintiff a statement of that fact. The plaintiff thereupon filed its claim for loss, attaching this statement from the defendant, showing that the plaintiff alone was interested in the loss.

The defendant did not object when the claim for loss was filed, that it was filed at Baeford, instead of at "Winston, which was merely a directory matter. If it had made such objection, as in all fairness it should have done, the plaintiff would doubtless have filed the claim for loss at Winston. Not having made the objection, it was waived, else the plaintiff was misled and put to a disadvantage. The defendants ■did not refuse to pay the loss on any such technical ground that the ■claim was filed at the wrong place, but tendered payment, and has not excepted on this ground on this trial and the exception is not before us.

It is a matter of common knowledge that railroad companies were often neglectful in adjusting and settling claims for loss of goods in transit, whereby shippers and consignees were much prejudiced. A mere action to recover the loss entailed upon the party injured the expense of counsel fees and the annoyance of litigation. To remedy this public evil the statute which is now Eevisal, 2634, was enacted (chapter 330, Laws 1905) for the public benefit. It gives a penalty of $50 against any common carrier failing to adjust and make payment for such losses within ninety days. It having been held that a consignor was not “the party aggrieved” who is entitled to recover damages in such ease, Buggy Corp. v. R. R., 152 N. C., 119, the General Assembly thereupon amended the act to provide that the recovery could be made by the consignor “when it shall appear that the consignor was the owner of the shipment.” Laws 1911, ch. 139.

If the claim for the penalty had been assigned the assignment would have been valid. Petty v. Rousseau, supra,; but in fact the statement given to the plaintiff by the consignee was merely to show that the consignee had no interest in the loss and that the plaintiff was “the owner of the shipment,” Laws 1911, eh. 139. This case is therefore stronger than Horton v. R. R., post, 383, because in that case the nominal consignee had not given any such certificate, brought home to the defendant as here, that the plaintiff there was the real consignee.

In this case it appears, on the facts found by the judge, that the E. J. Beynolds Co., the nominal consignor, had no interest whatever in the shipment; that the nominal consignee had none; that the plaintiff was the actual owner of' the shipment and filed its notice with the certificate of the nominal consignee, and that the plaintiff was the real “owner of the shipment.” The defendants do not deny that the plaintiff was such owner and that it had neglected for more than the allotted ninety days to adjust the claim by tendering the $34 and interest in open court. If filing the claim at Baeford was a defect material to the plaintiff’s rights, it was waived by the defendants not giving the plaintiff notice of said objection, and was further waived in open court by tendering the amount of the loss, and is not now presented by any exception.

Tbe defendants, by admitting by tbeir tender tbat tbe plaintiff was-tbe “owner of tbe shipment” and bad suffered tbe loss claimed, wbicb tbe defendants bad failed to adjust and pay, tbe penalty of $50 given by tbe statute was an incident (Laws 1911, cb. 139), and tbe judgment of Allen, /., to tbat effect should be affirmed.

The Reynolds Tobacco Co., tbe nominal consignors, could not sue for loss of tbe goods, because they were merely tbe agents of tbe plaintiff' in shipping tbe goods, and therefore only nominal consignors. The-consignee could not .sue because it gave a certificate (or release) tbat the-goods belonged to tbe plaintiff. Tbe only party who could sue was tbe plaintiff, who, tbe defendant admits by tendering payment, was tbe “owner of tbe shipment,” in tbe language of tbe statute. Tbe defendant has not denied tbat tbe plaintiff gave notice in due time, and it has not objected tbat it did not receive such notice because it was filed at the-wrong place. Tbe record shows more than six months elapsed before-tbe plaintiff brought suit to recover bis loss. Tbe defendant, having dragged tbe plaintiff through three courts, now is willing to pay for tbe wrong be has done tbe plaintiff, after tbe lapse of two years, tbe $34, tbe value of tbe goods, wbicb ought to have been paid when the-loss occurred.

Tbe law requiring tbe penalty of $50 was to enforce upon these-great common carriers tbe necessity of paying proper attention in a reasonable time to tbe claims of shippers who sustain losses from tbe negligence of tbe railroad companies and to recoup tbe necessary cost forced on those who have to sue to recover their losses.

To turn tbe plaintiff off now, after paying counsel for representing them in all tbe courts, from the lowest to the highest, and to tax the-plaintiff with tbe costs of this appeal on tbe ground tbat tbe notice was filed at tbe wrong place (to which tbe defendant then made no objection! is to impose upon tbe plaintiff a loss far greater than tbe value of tbe goods. Tbe statute, instead- of being a protection, has proved to be a severe punishment to tbe plaintiff for tbe temerity of asking-tbat tbe courts make tbe defendant pay for tbe goods which the defendant has negligently lost and refused to pay for.

A statute ought to be construed according to its intent. Tbe old maxim tbat a penal statute is to be strictly construed, if it ever bad any justification, applies only in criminal cases. It certainly ought not to apply as to a civil remedy in regulation of tbe railroad companies when, without excuse, they fail to pay losses caused by tbeir negligence in tbe shipment of goods. In such cases tbe true maxim is tbat “A remedial statute should be construed so as to advance tbe remedy and. repress tbe evil.”  