#### JARRETT STATIONERY COMPANY (E. H. JARRETT) v. SOUTHERN EXPRESS COMPANY.

(Filed 13 April, 1910.)

1. Penalty Statutes — Carriers of Goods — Failure to Pay Claim— Amendments — Discretion. *

In an action against tlie carrier to recover the penalty prescribed by Revisal, sec. 2634, for the failure of the company to settle a claim, it is in the discretionary powers of the trial court to allow plaintiff, during the trial, to amend so as to- show that the claim for damages had been agreed upon, though not settled, it being necessary for plaintiff to prove the exact amount of the damage claimed in order to recover the penalty, of which the defendant was put upon notice by the nature of the suit and by •the statute.

2. Penalty Statutes — Carriers of Goods — Failure to Pay Claim— Subsequent Voluntary Payment.

In an action to recover the penalty for failure of the carrier to settle a claim for damages under Revisal, see. 2634, the mere voluntary payment of the damages after the statutory time is neither a forfeiture nor a satisfaction of the penalty.

Appeal from Long, J., at April Term, 1909, of G-uileoRd.

Civil action tried, on appeal from a judgment of a justice of the peace, and instituted to recover penalty fixed by sec. 2634, Rev. 1905, for failure to settle claim in tke time prescribed. The summons required the defendant “to answer to the complaint of E. H. Jarrett, plaintiff, in a civil action for the recovery of $50 and .... cents, and interest on $50 from *3431Y January, 190Y, until paid, due by penalty for failure to settle claim in ninety days after filing same witb defendant, and demanded by plaintiff.” In the Superior Court and during the trial, after plaintiff had testified that the express package was tendered to him in a damaged condition, and after he had seen defendant’s agent and amount of damages, to wit, $4, had been agreed on; and claim in writing filed with such agent, and that the same had not been settled, adjusted or paid, the court permitted the plaintiff to1 amend by suing also for the $4 damage. The defendant objected upon the ground that a new cause of action was inserted. The objection was overruled, and defendant excepted. The defendant moved in apt time to nonsuit the plaintiff under the statute. 'Motion overruled and defendant excepted.

The jury found, in response to the issues, that the goods transported by defendant had been damaged to the amount of $4; that plaintiff filed bis claim in writing on 16 September, 19 OY; that defendant did not adjust and pay the claim in ninety days, and that plaintiff was entitled to recover the penalty of $50. Judgment was rendered on the verdict, and defendant appealed to this Court. ,■

W. P. Ragan and G. S. Bradshaw for plaintiff.

John A. Barringer for defendant.

Manning, J.

We do not think his Honor erred in permitting the amendment complained of. The statute, sec. 2634, Rev. 1905, provides, “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 penalties herein provided for, may. be united in the same complaint.” It will be seen, therefore, that in order for the plaintiff to recover the penalty, he must establish his damage to be in exact agreement, in amount, with the claim filed by him; otherwise, no penalty shall be recovered. Whether this damage has been adjudicated in an independent action, or united in the action to recover the penalty, the agreement in amount must be shown. As no independent action for the damage had been brought, it was incumbent upon the plaintiff to establish that his damage was the full amount of the claim filed, and it was open to the defendant, as one way to avoid the penalty, to prove that the damage was less. Albritton v. R. R., 148 N. C., 485.

*344Tbe summons fixed tbe defendant witb notice of tbe specific penalty plaintiff sought to recover, and tbe statute, as construed by tbis Court in tbe case cited, fixed tbe defendant witb notice of tbe proof required to sustain tbe cause of action so stated, wbicb embraced tbe proof of tbe claim for damages as a condition precedent to tbe right to recover tbe penalty. Tbe amount of damage can as well be determined by agreement as by suit.

Tbe voluntary payment of tbe amount claimed as damage, wben made after tbe statutory time, is neither a forfeiture nor a satisfaction of tbe penalty. Tbis Court, in tbe case cited, quotes witb approval tbe following language, inter alia, of Justice Gary, in bis dissenting opinion in Best v. Railway, 72 S. C., 488: “Tbe mode of determining whether the consignee was entitled to recover the full amount of bis claim is a mere incident and not a condition precedent to bis right to recover the penalty.” If a judgment bad been recovered in a’ prior independent action, for tbe full amount of tbe claim for damages, then in tbe suit for tbe penalty, such action would operate as an estoppel upon tbe defendant to contest this fact in its liability for tbe penalty. The allowance of tbe amendment did not reduce tbe burden resting upon tbe plaintiff, nor take away from tbe defendant any defenses which, could be set up in a new action commenced wben tbe amendment was asked for. It did not substantially change tbe claim or defense. Section 1467, Rev.; Simpson v. Lumber Co., 133 N. C., 95; Stone v. R. R., 144 N. C., 220; Kron v. Smith, 96 N. C., 389. In tbe case last cited, Chief Justice Smith says: “It does not appear that any defenses are taken away which could be set up in a new action commenced wben tbe amendment was asked for, and it would be a reproach to tbe administration of tbe law to deny to tbe court tbe authority to allow it.”

We do not think bis Honor exceeded bis power in allowing tbe amendment. Having tbe power to act upon tbe question of amendment, it was addressed to bis discretion as to bow he-should act, and upon what terms be would permit it, and bis action is not subject to review by us. In our opinion, tbe motion to nonsuit was properly overruled. Having examined , tbe record'and tbe authorities cited, we discover no error at tbe trial, and tbe judgment is affirmed.

No error.