#### B. F. EAGLES COMPANY, Inc., v. EAST CAROLINA RAILWAY.

(Filed 20 September, 1922.)

li Carriers of Goods — Railroads — Damages—Penalty—Statutes—Piling of Claim.

Under the terms of our statute, C. S., 3624,- imposing, in favor of the consignee, á penalty upon the carrier for loss of or damage to goods while in its possession, if not paid, “within ninety days after the filing of such claim by the consignee with the carrier’s agent at the point of destination or at the point of delivery to another carrier”: Held, the filing is sufficient if delivered to. the designated agent for that purpose, and so received by him.'

2. Same — United States Mail.

The essential things for the proper filing of the claim against the common carrier for damages, and for the penalty under the provisions of C. S., 3524, being its delivery to and acceptance by the carrier’s designated agent, such filing is not restricted to its manual delivery, but the same may be done through the agency of the United States mail.

*673. Same — Evidence—Prima Eacie — Conflicting Evidence — Questions for Jury — Trials.

Where the consignee properly addresses, stamps, and mails his claim for such loss or damage at a postoffice of the United States Government, it will be presumed that it was delivered, as addressed, in the usual course of the mails, and a denial of delivery by the carrier raises a conflict of evidence thereon for the determination of the jury, and the carrier’s motion as of nonsuit is properly denied.

4. Carriers of Goods — Railroads — Penalty — Statutes — Principal and Agent.

The penalty imposed by C. S., 3524, on the carrier to pay a claim for damages, etc., within ninety days after the filing of the claim by the consignee with carrier’s agent at the terminal point, etc., is to enforce obedience to the mandate of the law by punishment of the carrier, and the statute must be strictly construed, requiring the consignee to bring his case clearly within its language and meaning; and in order to recover the penalty, the consignee must file his claim with the agent, as the statute directs, and the filing thereof with another of the carrier’s agents is insufficient.

Appeal by defendant from Horton, J., at June Term, 1922, of Edgecombe.

Plaintiff brought suit to recover $1.21 for loss or damage to goods in transit, and for a penalty of $50 for failure to pay the claim within the time prescribed by the statute. C. S., 3524.

The defendant operates a railroad from Tarboro to and beyond Macclesfield, in Edgecombe County. On 1 November, 1920, the Atlantic Coast Line Railroad Company issued a bill of lading for a shipment of lard from Rocky Mount to the plaintiff at Macclesfield, the initial and terminal points being within the State. The plaintiff’s place of business is at Crisp, near Macclesfield. On arrival of the shipment at destination, it appeared that one of the tubs had been broken and a part of the contents lost. The claim was filech if at all, on 11 December, 1920. "With regard to filing his claim, the ]J|laintiff testified as follows: “I put the letter in the mail and delivered it to the carrier on our route. I have a mail box at the store, and the carrier stops in the store and gets the mail right out of the store. I put the required postage on the letter, and I put the letter and claim in the R. F. D. letter box. Letter had return notice on it; it never was returned. I properly addressed the letter to the East Carolina Railway at Tarboro, and I put the postage on it; the letter was delivered to the carrier. I gave it to the carrier myself.” This was the plaintiff’s customary way of filing its claims. J. T. Hagans, a witness for the defendant, testified that he had been freight claim agent for the defendant six years; that he had not received this claim, and never saw it until 11 March, 1922, when it was sent to him as one of a list of claims.

*68Tbe issues were answered as follows:

“1. Did plaintiff file claim witb defendant, as alleged? Answer: ‘Yes.’

“2. What amount is plaintiff entitled to recover of defendant? Answer : ‘$1.21, witb interest from 11 December, 1920.’ ”

Tbe parties agreed tbat only tbe first issue should be submitted to tbe jury, and tbat tbe second should be answered by tbe court after tbe verdict was returned on tbe first.

Tbe defendant in apt time moved for judgment of nonsuit as provided by statute, and to tbe denial of its motion, and to an instruction of tbe court, which is set out in tbe opinion, duly excepted. Judgment upon tbe verdict for tbe amount of tbe indebtedness and tbe penalty of $50. Appeal by tbe defendant.

Don Gilliam for plaintiff.

John L. Briclgers for defendant.

Adams, J.,

after stating tbe facts: In case "of intrastate shipments tbe statute requires tbat every claim for loss of or damage to property while in possession of a common carrier shall be adjusted and paid for within ninety days after tbe filing of such claim by tbe consignee witb tbe carrier’s agent at tbe point of destination or at tbe point of delivery to another carrier, and tbat every carrier shall be liable for tbe amount of such loss or damage, witb interest thereon from tbe time tbe claim is filed until it is paid. Tbe statute provides tbat failure to adjust and pay such claim within tbe period prescribed shall subject tbe carrier to a penalty of fifty dollars for every such failure, and tbat a cause of action for tbe recovery of loss or damage may be united witb a cause of action for tbe recovery of tbe penalty. C. S., 3524.

Tbe plaintiff recovered both tbe penalty and tbe loss incurred, and the exceptions on appeal present tbe questions whether there was error in bis Honor’s instruction, and whether tbe defendant was entitled to judgment of nonsuit.

What is tbe technical import of the phrase “after tbe filing of such claim”? Similar expressions have been repeatedly construed by tbe courts. It has been held tbat a paper or an instrument is filed when it is deposited in tbe proper office witb a person in charge thereof; when it is delivered for tbe purpose of filing; when it is lodged witb tbe proper person; and when it is delivered and received to be kept on file. Tregambo v. Mining Co., 57 Cal., 501; Edwards v. Grand, 53 Pac. (Cal.), 796; Mann v. Carron, 79 N. W. (Mich.), 941; Masterson v. So. Ry., 82 N. E. (Ind.), 1021. The following is 'Webster’s definition of tbe verb: “To deliver (a paper or instrument) to tbe proper officer so tbat it is. *69received by bim to be kept on file, or among tbe records of bis office.” Hence, in Thompson v. Express Co., 147 N. C., 346, Brown, J., cited several cases substantially bolding that filing a paper means receiving it into custody, and in Power Co. v. Power Co., 175 N. C., 673, Walker, J., held that a paper is filed wben it is delivered to tbe proper officer for that purpose and received by bim. Tbe indorsement of tbe paper by tbe officer or other person is evidential but not requisite, unless made so by statute. Power Co. v. Power Co., supra; Lumber Co. v. Mack, 69 S. W. (Ky.), 712; Peterson v. Taylor, 15 Ga., 483. Tbe plaintiffs’ claim of loss or damage was therefore filed if it was delivered to or placed in tbe custody of tbe defendant’s agent for that purpose, and by bim received. But since not restricted to manual delivery of its claim, tbe plaintiff was not precluded from tbe use of tbe postoffice as a public agency for effecting tbe communication. Tbe essential things were tbe delivery for filing and tbe receipt of tbe claim. Tbe plaintiff contends, not that mailing was equivalent to filing tbe claim, but that tbe verdict removes all doubt as to tbe actual receipt of tbe claim by tbe defendánt. As a counter argument tbe defendant insists that depositing tbe letter in tbe mail, prepaid and properly addressed, is not sufficient evidence of delivery, and moreover, that tbe jury returned their verdict under tbe court’s erroneous instruction as to tbe law. When tbe evidence shows that a letter has been committed to tbe postoffice or other depository from which letters are regularly delivered, properly stamped, and correctly addressed to tbe place of residence of tbe person for whom it is intended, it will be presumed that the sendee received tbe letter in tbe due course of mail. Jones on Ev., sec. 52. In Trust Co. v. Bank, 166 N. C., 116, it is said: “When it is shown that a letter has been ‘mailed,’ this establishes prima facie that it was received by tbe addressee in tbe usual course of tbe mails and bis business, and wben tbe latter introduces evidence that it was not in fact received, or not received at tbe time alleged, such testimony simply raises a conflict of evidence, on which it is tbe exclusive province of tbe jury to pass.” Tbe instruction complained of is in accord with these authorities, and is free from error.

An entirely different question is involved in tbe defendant’s contention that tbe plaintiff, instead of filing tbe claim with tbe agent at Macclesfield, sent it to tbe defendant at Tarboro, and therein failed to comply with tbe statute. Tbe purpose of tbe penalty is to enforce obedience to tbe mandate of tbe law by punishment of tbe carrier. Therefore it is that tbe statute must be strictly construed, and be who sues to recover tbe penalty must bring bis case clearly within tbe language and meaning of tbe law. Thompson v. Express Co., supra; Cox v. R. R., 148 N. C., 459; Sears v. Whitaker, 136 N. C., 38. “Applying the rule by which courts should be guided in tbe construction of a- penal *70statute, Bynum, J., in Coble v. Shoffner, 75 N. C., 42, says: Tt cannot be construed by implication, or otherwise than by express letter. It cannot be extended, by even an equitable construction, beyond the plain import of its language. If, therefore, even the intent of the Legislature to embrace such a case was clear to the court from the statute itself, we cannot so extend the act, because such a construction is beyond the plain import of the language used.’ ” Grocery Co. v. R. R., 170 N. C., 244.

By the very terms of the statute the claim for loss or damage must be filed by the consignee with the carrier’s agent at the point of destination of the shipment or at the point of delivery by the carrier in possession of the property to another common carrier. The obvious purpose is to afford the agent at the place of destination, or at the place of delivery to another carrier, fair opportunity to make investigation of the claim within the statutory period. “The transactions of a railroad company are multitudinous, and are carried on through numerous employees of various grades. Ordinarily, the managing officers, and those responsible for the settlement and contest of claims, would be without actual knowledge of the facts of a particular transaction. The purpose of the stipulation is not to escape liability, but to facilitate prompt investigation. And to this end it is a precaution of obvious wisdom, and in no respect repugnant to public policy, that the carrier by its contracts should require reasonable notice of all claims against it, even with respect to its own operations.” Phillips v. R. R., 172 N. C., 88.

In Smith v. R. R., 174 N. C., 111, it is said:' “The burden is on plaintiff to show not only that the claim was in writing, but that it was filed with defendant’s agent at the point of delivery or of origin within four months after a reasonable time for delivery has elapsed. The point is expressly decided in Culbreth v. R. R., 169 N. C., 724.”

And in 34 Cyc., 587, it is said: “To constitute a valid filing for record, the instrument must be delivered at the office where it is required to be filed, and delivery of an instrument to the proper officer at a place other than the office where it is required to be filed is not sufficient, even though the officer indorses it as properly filed.”

In his brief, the defendant’s counsel earnestly insists that the plaintiff should have filed its claim with the defendant’s agent at Macclesfield, and we concur in his conclusion. Having failed to file its claim as required by law, the plaintiff cannot maintain its action. The judgment of his Honor is set aside, and his denial of the defendant’s motion is

Reversed.