
    B. F. D. ALBRITTON & CO. v. ATLANTIC COAST LINE RAILROAD COMPANY.
    (Filed 21 October, 1908.)
    1. Penalty Statute — Damages—Separable Causes.
    Actions against a carrier for damages arising from goods damaged or lost wiiile in its possession, and for the penalty for delay of carrier in settlement within sixty days after claim has been filed, etc. (Reyisal, sec. 2634), are separable causes.
    2. Penalty Statutes — Failure .to Pay Claim — Accepting Payment for Damages — Waiver—Suit for Penalty.
    The consignee, by acceiiting from the carrier the full amount claimed as damages to or loss of goods while in its possession, does not waive his right of action to recover the penalty for failure of the carrier to adjust and pay the amount within the time limited after claim has been filed, etc., under Revisal, sec, 2034.
    3. Samé — Condition Precedent — Compliance — Interpretation of Statutes.
    The provision in Revisal, sec. 2634, that the consignee must thereunder recover the full amount of his claim as a condition precedent to his recovering the penalty, is to establish the justness of his claim and the wrongful refusal of the carrier to pay it, and when this is otherwise established by agreement and settlement the meaning and intent of the statute have been met.
    ActioN beard before Neal, J., and a jury, at March Term, 1908, of LenoiR..
    This action was brought to recover the penalty given by section 2634 of the Eevisal for failing to adjust and pay a claim for loss of property shipped over the defendant’s road.
    B. E. D. Albritton testified that he is a member of the partnership of B. E. L>. Albritton & Co., and that j. J. Edwards and J. E. Albritton are the only other partners; that he filed with the agent of the defendant company at Ayden, N. C., on 15 September, 1906, a claim against the defendant for the sum of $25.75 for loss.of and damage to goods shipped over the road of defendant; that the claim was not paid, and on 16 October, 1907, action was instituted before W. F. Stanley, justice of the peace, for the amount of the claim, the summons in said action being returnable on 23 October, 1907; that the action was not tried, but tbe defendant, after the action was brought, offered to pay to plaintiff the amount claimed, with interest and costs of the action, which was accepted and the action dismissed by a consent judgment on 4 November, 1907, at which time the plaintiffs receipted in full for the claim. The' summons and judgment in the previous action and the receipt of plaintiff to defendant were all in evidence.
    Upon the evidence of the plaintiffs the Court intimated that they could not recover, whereupon they submitted to a nonsuit and appealed.
    
      7. T. Ormond for plaintiff.
    
      Rouse & Land for defendant.
   WaltíeR, J.,

after stating the case: The only question presented in this case is whether the plaintiff is entitled to recover the penalty of $50, given by section 2634 of the Revisal for a failure by a common carrier to adjust and pay a claim for loss of or damage to property entrusted to it for transportation, when the carrier has voluntarily paid the claim in full, after the time limited in the statute for its payment. The section 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 sixty days in case of shipments wholly within this State, and within ninety days in cáse 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: Provided, that no such claim shall be filed until after the arrival of the shipment, or of 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. Failure to adjust arid pay such claim -within the periods respectively herein prescribed shall subject each common carrier so failing to a penalty of $50 for each and every such failure, to bo recovered by any consignee aggrieved in any court of competent jurisdiction: Provided, that unless such consignee recover in such action the full amount claimed, no penalty shall be recovered, but only the actual amount of the loss or damage, with interest as aforesaid. Causes of action for the recovery of the possession of 'the property shipped, for loss or damage thereto, and for the penalty herein provided for, may be united in the same complaint.” Kevisal, sec. 2634.

It will be observed that the penalty is given for a failure to adjust and pay within sixty days after the claim is filed. The defendant contends that the payment described in the section is one which is enforced by judgment and execution in an action brought to recover the amount of the claim, and that if the carrier pays voluntarily, however long the payment may have been delayed beyond the time fixed by the statute, there is no liability for the penalty. We cannot assent 'to this construction of the section, for it contravenes its plain meaning. The penalty is given for a failure to adjust and pay within sixty days after the claim is filed, whether the payment is voluntary or not. If it is voluntarily made, no suit is necessary to recover the amount due, but only to recover the penalty, but if it is not made voluntarily the plaintiff can sue for the amount of the claim, and afterwards in a separate action recover the penalty, or, at his election, he may join the two causes of action in one suit. It is to the action in which the two causes are joined that reference is made by the use of the words “unless such consignee recover in such action,” the idea being that if the claim has not been previously adjusted and paid, whether voluntarily or involuntarily, then the plaintiff must join the two causes in one action in order that he may hare his right to the full 'amount claimed by him adjudicated béfore any judgment is rendered for the penalty, it being necessary to establish that he is entitled to the full amount he claims, as a condition precedent to his right to recover the penalty, if there has been a delay in adjustment and payment. The reason for this is that it must be known first that the plaintiff has not made an excessive demand of the defendant, for if he has, the refusal of the latter to pay would be rightful and the penalty would not accrue. Any other construction would enable the carrier, by its own wrong in refusing to pay a just claim for loss or damage, to compel'the plaintiff to sue, and then by settling to avoid the penalty, or by delaying to pay ever so long beyond the time fixed by the'statute, and then finally settling, produce the same result. This would be contrary to the plain words of the section and would enable the carrier, by evasion, to defeat the clearly expressed intention of the Legislature.

We were referred by counsel for the defendant to the cáse of Best v. Railway, 72 S. C., 479, which seems to sustain his position, but we are unable to follow that decision. The reasoning of Justice Gary, in his dissenting opinion, commends itself most favorably to us, and we concur in what he says, as follows: “The proper construction of the act is that when a common carrier fails to adjust and pay the consignee’s claim within the time specified by the act, it subjects itself to liability (1) for the -amount of the loss or damage, together with interest thereon from the date of the filing of the claim therefor, until the payment thereof; (2) for a penalty of $50 for failure to adjust and pay the claim within the period prescribed by the statute, provided the consignee recovers the full amount claimed, whether in an action, when necessary, or by voluntary payment on the part of the common, carrier. The mode of determining whether the consignee was entitled to recover the full amount of his claim is a mere incident and not a condition precedent to his right to recover the penalty. . Tbe adjustment and payment of tbe claim for loss of tbe property was not intended as satisfaction of tbe liability incurred as a penalty, nor did it have su'cb effect by operation of tbe law.”

There is no valid reason for bolding that tbe adjustment and payment of tbe plaintiff’s claim is a waiver of tbe penalty. If tbe carrier delays the adjustment and payment of tbe loss or damage more than sixty days after tbe claim for tbe spe is filed, the penalty accrues, and tbe plaintiff is then entitled to recover tbe amount of bis claim, as well as tbe penalty, and be may do so in one action or in separate suits, tbe right to the penalty depending upon bis recovery of the full amount of bis claim. We do not see why tbe plaintiff should wait until he has recovered tbe penalty before receiving the amount of his claim, or forfeit tbe penalty. There is no provision in tbe statute to that effect. Tbe penalty is given for the delay in adjusting and paying, and it cannot, therefore, be that paying after the time fixed by tbe statute works a forfeiture of the penalty.

It was contended that tbe receipt of tbe amount of tbe claim is a waiver of tbe penalty, because tbe plaintiff can have but one recovery for tbe claim and penalty, there being but one wrong, and tbe case of Eller v. Railroad, 140 N. C., 140, was cited in support of tbe contention, but tbe case is not applicable. Here there are two separable causes of action — one for tbe claim and the other for the penalty— while in Eller's case there was but one wrong for which tbe plaintiff was entitled to recover only damages, which -were necessarily indivisible. A¥e held that be must recover all bis damages in one action, as there was but one cause of action for the one wrong, and for tbe reason that there could be only one compensation for tbe single wrong or breach of duty. Tbe distinction between tbe two cases seems to be clear.

There was error in tbe ruling of tbe court. Tbe nonsuit is set aside and a new trial ordered.

New Trial.  