Thompson v. Southern Express Co

• Decision Date: 15 April 1908
• Citation: 61 S.E. 182,147 N.C. 343
• Court: North Carolina Supreme Court
• Parties: THOMPSON. v. SOUTHERN EXPRESS CO.

147 N.C. 343

61 S.E. 182

THOMPSON.

v.SOUTHERN EXPRESS CO.

Supreme Court of North Carolina.

April 15, 1908.

Carriers—Carriage of Goods—Failure to Deliver — Payment and Adjustment of Claim—"File."

Revisal 1905, § 2634, providing that every claim for loss or damage to property while in possession of a carrier shall be adjusted and paid within 60 days after the filing of such claim with the agent of the carrier at the point of destination, and that failure to adjust and pay the claim within the period prescribed shall subject the carrier to a penalty of $50, etc., is a penal statute, and the claimant must present his demand in writing in order to recover the penalty, a verbal demand being insufficient, the words "to file" meaning "receiving a paper into custody" (citing 3 Words and Phrases, 2765).

Appeal from Superior Court, Alamance County; O. H. Allen, Judge.

Action by A. T. Thompson against the Southern Express Company. Judgment for plaintiff, and defendant appeals. New trial, unless judgment be modified by consent.

This is an action instituted before a justice of the peace of Alamance county for the recovery of $2 for the loss of a jug of whisky alleged to have been shipped by Moyle Bros., Salisbury, N. C., to the plaintiff at Burlington, N. C, and for $85, the penalty provided by section 2632 of the Revisal of 1905 for failure to ship and deliver within the time prescribed by law, and for $50, the penalty provided by section 2634 of the Revisal of 1905 for failing to adjust and pay the claim within 60 days after the same had been filed. The action was brought by appeal to the superior court of Alamance county and there tried at the July special term, 1907, his honor O. H. Allen, judge presiding. The defendant introduced no evidence, and, upon the refusal of the court to nonsuit the plaintiff, the defendant appealed. The court submitted these issues: "(1) Did the defendant receive from Moyle Bros. at Salisbury, N. C., for shipment the package of goods mentioned in the complaint? A. Yes. (2) If so, was said package plainly addressed to A. T. Thompson, ' Burlington, N. C., as alleged in the complaint? A. Yes. (3) Did the defendant transport within the time prescribed by law said package of goods from its office in Salisbury, N. C, to its office at Burlington, N. C? A. No. (4) What was the value of said goods at the time they were delivered to the defendant for shipment? A. $2. (5) Did the plaintiff on or about January 1, 1907, make a claim against the defendant for the loss of said goods; and, if so, when? A. Yes. (6) Has the claim ever been paid? A. No. (7) How much, if any, is the plaintiff entitled to recover? A. $2. (8) How much, if anything, is the plaintiff entitled to recover as a penalty for failure to transport said goods from its office in Salisbury, N. C, to its office at Burlington, N. C.? A. $85. (9) How much, if anything, is the plaintiff entitled to recover for failure of defendant to audit and settle the account of plaintiff for loss of said goods? A. $50." From the judgment rendered, defendant appealed.

John A. Barringer, for appellant.

Brooks & Thompson and W. H. Carroll, for appellee.

BROWN, J. The testimony tends to prove that plaintiff ordered a jug of whisky to be shipped to him by defendant from Salisbury, N. C., that it was so shipped on December 22, 1906, and that its value was $2, the price prepaid by plaintiff. At the commencement of this action on April 10, 1907, the whisky had not been delivered. There is no evidence that it was burned, stolen, or otherwise destroyed, and no evidence which tends to exonerate the defendant under Acts 1907, p. 669. c. 461. We find no error in the record in respect to the rulings of the court upon any issue, except the fifth and ninth, relating to the $50 penalty. His honor should have given defendant's prayer for instruction: "That, if the jury believed the evidence in this case, the plaintiff is not entitled to recover the penalty of $50 for failure to pay the claim of $2, the value of the whisky under section 2632 of the Revisal of 1905, and they would answer that issue accordingly." It is immaterial to consider whether the action was commenced before the 60 days allowed for adjustment of the statute had expired. The plaintiff's own testimony proves that the demand for the $2 was a verbal demand, and that no claim in writing was filed with the agent of defendant. The statute giving the penalty is section 2634 of the Revisal of 1905, and provides that "every claim for loss or damage to property while in possession of a...