April 8, 1913. The opinion of the Court was delivered by The plaintiff filed a claim against the defendant railroad company for $4.65, the value of three pairs of shoes, lost in transit from St. Louis, Missouri, to Denmark, South Carolina, and thirty-six cents freight *Page 304 thereon. Upon the failure of the carrier to pay the claim within forty days, the plaintiff brought this action in a magistrate's court for $4.65 and the statutory penalty of $50.00, without including the item of thirty-six cents for freight. The defendant offered to allow judgment for $4.65, the value of the goods, but contended that the penalty could not be recovered, since the amount sued for was less than the amount of the claim filed. The Circuit Court affirmed the judgment of the magistrate for $4.65 and the statutory penalty.
We think this was clearly error. The statute provides as a condition of the recovery of the penalty that the plaintiff shall recover the full amount of his claim. As the plaintiff could not recover under this complaint the full amount of his claim, he could not recover the penalty. Price v.Charleston W.C. Ry. Co.,
Reversed.