Jarrett Stationery Co. v. Southern Express Co.

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. *344 Tbe 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.