6809

#### NETHERLAND v. CHARLESTON & WESTERN CAROLINA RY.

Pehai-ty — Freight.—A carrier is liable for penalty for -failure to adjust claim for damages to freight when the damages proved are more than claim is filed for, but that amount only is claimed in suit.

Before Watts, J., Greenwood,

July, 1907.

Reversed.

Action by E. W. -Netherland' against Charleston and-Western Carolina Railway. From order reversing judgment of Magistrate W. G. Austin, plaintiff appeals.

*369■ *Mr. D. H. M\agill,*for appellant,

cites: *Defendant can not complain if damage claimed was less than suffered: 75*S. C., 229. *Appellant entitled to penalty:*78 S. C., 291:

*Messrs. McGee & Richardson,*contra.

No citations.

March 18, 1908.

The opinion of the 'Court was. delivered 'by

Mr. Justice Gary.

This action was commenced before a magistrate, for $15.00' damages to a shipment of household goods and $5O'.00 penalty for failure to adjust the claiml within ninety days after it was filed.

The claim filed was as follows: “In shipping freight over your road a portion of it got very badly damaged; one 'dresser base broken and badly rubbed, organ stool top broken, off, stove legs .and top misplaced. I have been advised to. report my case to you rather than, to file suit for damages. My claim; is $15.00. I trust you will give this matter your prompt attention and settle claim .at an early date. My freight was delayed, and also damaged me in other lines, but this will not be taken, up; if the claim is settled at once. I awiait your reply and am yours truly, E. W. Netherlands ”

The plaintiff testified as follows: “The goods did arrive here over the C. & W. O. Railway 'Go. road'. Goods were damaged, to wit: Dresser, cost me $28.50'; one of the drawers is split and the dresser damaged $15.00'. A $6.50 cotton mattress was 'damaged $3.00'. Organ stool, cost $5.00; .was damaged $1.50'. Washstand, cost $10'.00; is damaged $2.00>.”

The magistrate rendered judgment in favor of the plaintiff for $1i5.00' damages and $50.00' penality.

The defendant appealed; and his Honor, the Circuit Judge, modified the judgment of the magistrate, by refusing to allow! the penalty of $5O'.00.

The plaintiff appealed, and contends1 that the undisputed testimony shows that the dresser and the organ stool, which *370were mentioned in the claim filed 'by the plaintiff, were of the value of at least $15.00', and, therefore, that he was also entitled to- the penalty of $50.00'.

The items embraced in the dialm for damages were: One dresser,, one organ stool, and! stove legs and top1, valued, in the aggregate, at $15.00.

The defendant did not controvert the testimony to the effect that the dresser cost $23.00 and was damaged $15.00', and that the organ stool cost $5.00' and was damaged $1.50'.

The undisputed testimony therefore shows, that, .although the damages to the dresser and organ stool exceeded $15.00, nevertheless that only this sum was claimed1.

The case, therefore, com|es within the principle announced in the case of *Phoenix Co.*v. Jaudon, 75 S. C., 229, in which it was held that a defendant can. not complain that a part of the property is assessed at the value placed by the plaintiff on the entire property.

It is the judgment of this. 'Court, that thie judgment of the Circuit Court be reversed and the case remanded for a new trial.