
    8514
    RAY v. SOUTHERN RY. CO.
    'C.vbkieb — Ekeight—Rexam v. — Where a consignee of freight files a claim for value of goods lost in transit and freight, and on refusal to pay, sues the carrier for the value of the goods alone, he cannot recover the statutory penalty for failure to pay.
    Before Rice, J., Bamberg, July, 1913.
    Reversed.
    Action by S. S. Ray against Southern Ry. Co. in court of magistrate S. G.'Ray. Defendant appeals.
    
      Messrs. B. L. Abney and P. F. Carroll, contra, cite:
    
      Plaintiff must recover whole amount of claim filed to entitle him to penalty: 83 S. C. 309, 470; 73 S. C. 483; 80 S. C. 534; 83 S. C. 307, 375; 89 S. C. 419.
    
      Mr. J. Wesley Crum, Jr., contra, cites:
    
      As to the construction of the penalty statute: 36 Cyc. 1106, 1138, 1137, 1163. Freight is not necessary part of claim: 73 S. C. 543.
    April 8, 1913.
   The opinion of the Court was delivered by

Mr. Justice Woods. The plaintiff filed a claim against the defendant railroad company for $4.65, the value of three pairs of shoes, lost in transit from St. Louis, Missouri, to Denmark, South Carolina, and thirty-six cents freight thereon. Upon the failure of the carrier to pay the claim within forty days, the plaintiff brought this action in a magistrate’s court for $4.65 and the statutory penalty of $50.00, without including the item of thirty-six cents for freight. The defendant offered to allow judgment for $4.65, the value of the goods, but contended that the penalty could not be recovered, since the amount sued for was less than the amount of the claim filed. The Circuit Court affirmed the judgment of the magistrate for $4.65 and the statutory penalty.

We think this was clearly error. The statute provides as a condition of the recovery of the penalty that the plaintiff shall recover the full amount of his claim. As the plaintiff could not recover under this complaint the full amount of his claim, he could not recover the penalty. Price v. Charleston & W. C. Ry. Co., 93 S. C. 576.

Reversed.  