#### THOMAS J. MITCHELL v. ATLANTIC COAST LINE RAILROAD COMPANY.

(Filed 15 March, 1922.)

1. Statutes — Amendments—Interpretation.

The language of a statute, or of an amendment thereto, is presumed to have some meaning, and will be so construed in permissible instances.

2. Same — Carriers of Goods — Penalties—Transportation—Delivery—Negligence.

The penalty imposed upon a carrier for unreasonable delay in transportation of goods, was judicially determined not to apply to delivery under the provisions of Revisal (1905), sec. 2632, and hence a subsequent *163amendment by the Laws of 1907, that such delay shall not be construed as referring to delay in starting the shipment, but shall apply also to “its delivery at its destination within the time specified,” with the further provision that the carrier shall be relieved from the penalty if it is established to the satisfaction of the justice of the peace or the jury, that the delay was incident to causes that could not be foreseen in the exercise of ordinary care: Held, C. S., 3516, in which these statutes are brought forward, extends the penalty to cases of negligent default in the carrier’s making delivery of the freight to the consignee.

3. Same — Evidence—Questions for Jury — Nonsuit—Trials.

In an action for the xienalty prescribed for the unreasonable transmission and delay in the delivery of goods by the carrier, there was evidence that a shipment of various articles was transported by the carrier to destination, and all were received by the consignee, except one of them, which was missing, and remained in the carrier’s warehouse beyond the statutory reasonable time: Held, sufficient upon the question of the carrier’s liability for the penalty, and a motion as of nonsuit, and a prayer for instruction directing a verdict on the evidence for defendant, were properly refused. Wall v. R. R., 147 N. C., 407, cited and distinguished.

Abpeal by tbe defendant from Lyon, J., at tbe November Term, 1921, OÍ CRAVEN.

Civil action, tried on appeal from a justice’s court. Tbe action is to recover a statutory penalty for negligent delay in tbe transportation and delivery of freight under C. S., 3516. There was denial of liability, and tbe cause submitted to tbe jury on tbe issue as to unreasonable delay, and, second, tbe amount recoverable for same, etc.

Tbe plaintiff testified as follows: “That under tbe bill of lading of 13 April, 1920, tbe two boxes of clipping machines, one box of hardware, and ten packages of cart rims and five bundles of cart spokes were shipped from tbe N. Jacobi Hardware Company; that on 15 April, 1920, be was notified by tbe usual postal card notice that all tbe property covered by said bill of lading was in New Bern, and that on or about 16 April be received from tbe defendant all tbe property covered by tbe said bill of lading, except one box of clipping machines, tbe same marked short as per plaintiff’s bill attached.

“He further testified that be would not have received tbe notice unless tbe freight bad been in New Bern at tbe time. That when tbe other property covered by tbe bill of lading was delivered to him, or to bis drayman, that one box of clipping machines was not delivered; that on 8 June tbe missing box of clipping machines was found in tbe Atlantic Coast Line warehouse in New Bern, and was delivered to him. Tbe plaintiff offered tbe bill of lading dated 13 April, 1920, and the freight bill dated 15 April.” Tbe bill of lading was introduced, showing an entire shipment, including tbe missing box.

*164At tbe conclusion of plaintiff’s testimony there was motion for non-suit, overruled, and exception.

Second, defendant then offered a prayer for instruction as follows: “That if tbe plaintiff was notified on 15 April tbat tbe shipment bad reached New Bern, and tbe jury find tbat tbe box tbat was not delivered was in tbe warehouse at tbe time and not delivered to plaintiff until 8 June, tbat tbe defendant has transported tbe same in reasonable time, and they should answer tbe first issue.No.’” Prayer refused, and defendant excepts.

There was verdict for plaintiff, and assessing bis damages for delay at $39, amount allowed by tbe statute.

Judgment, and defendant appealed, assigning errors.

W. D. Mclver for plaintiff.

W. A. Towns and Moore & Dimn for defendant.

Hoke, J.

Under tbe statute as it formerly prevailed, Revisal of 1905, sec. 2632, a penalty was imposed for unreasonable delay in tbe •transportation of goods. Construing tbe statute in Alexander v. R. R., 144 N. C., 93, tbe Court held tbat tbe term “transportation” did not include a delivery to consignee at tbe point of destination, and if goods shipped by a carrier bad been properly placed at tbe point of destination, no penalty was incurred under tbe law for a negligent delay in delivery from tbe car or warehouse of tbe company. Subsequent to tbe facts presented in tbat case, tbe Legislature amended tbe statute (Revisal 1905, sec. 2632), and in ch. 461, Laws of 1907, provided: “Tbat tbe act imposing a penalty for delay in tbe transportation of freight shall not be construed as referring only to delay in starting tbe goods from tbe station where received, but, in addition thereto, shall be construed to require delivery at its destination within tbe time specified.” And with tbe provision, “Tbat if tbe delay be incident to causes, which could not have been foreseen in tbe exercise of ordinary care, and which were unavoidable, and these facts are established to tbe satisfaction of tbe justice of tbe peace or jury trying tbe cause, tbe defendant company shall be relieved from tbe penalty,” etc. An amendment which has been included in C. S., 3516, and being part of tbe section on which tbe present action is instituted.

A statute or amendment formally passed is presumed and if permissible should be construed so as to have some meaning, and unless tbe amendment referred to is intended to extend tbe penalty to cases of negligent default in making delivery of freight to tbe consignee, it will be entirely without significance. This assuredly is tbe permissible and *165reasonable construction of tbe law, and we are of opinion that his Honor made correct decision in denying defendant’s prayer for instructions.

There is nothing in Wall v. R. R., 147 N. C., 407, that in any way militates against this interpretation of the statute. In that case the company was contending that the penal statute ceased to apply when it had placed the shipment, a carload lot, in the company’s yards at Winston-Salem, the point of destination. In disallowing the position, the Court said the statute continued to apply until the goods were in the company’s warehouse, and notice duly given. There was nothing to call the Court’s attention to the effect of the amendment so recently made, and as a matter of fact, this amendment did not apply to the case as the facts determining liability had taken place and transaction terminated before the amendment to the law was made.

We find no error in the record, and the judgment of the Superior Court is affirmed.

No error.