after stating the ease: "We are of opinion that there was error in the charge of the Court on the question of plaintiffs’ demand.
1. The statute on the subject (Revisal, secs, 2642, 2643, 2644) provides that no railroad shall make a charge on a freight shipment greater than the rates appearing in the printed tariff of the company.
2. In case any overcharge is made, the person aggrieved may file with the agent of the collecting company a written demand, supported by a freight bill and original bill of-lading, or duplicate thereof, for refund of the overcharge.
3. That any company failing to refund such overcharge for more than sixty days shall be subject to a penalty.
There was evidence tending to show that defendant company had made and received from plaintiffs in the present case an overcharge of $1.39 in shipment of freight from Efiand, N. C., to Salisbury, N. 0., and had failed to return same for more than sixty days after demand was made therefor. There was also evidence tending to show that defendant company had made and received, at a different time and for a different shipment, to Lexington, N. 0., an overcharge of freight of $7.96, and had failed to return same for more than sixty days, and plaintiffs had recovered the amount of this last overcharge and a penalty for wrongfully failing to return *133same, in a separate action, tried and determined at the same term of the court.
The statute imposes the penalty for failure to return each overcharge. The two shipments were entirely distinct, and two distinct overcharges were made and received, and the statement of this overcharge in the form set out, accompanied in each case with the paid freight bill and a duplicate bill of lading, amounted to a written demand for each, and so complied with the statute. Breckenridge v. State, 4 L. R. A., 363; Pa. Co. v. Railroad, 69 Fed., 482.
The mere fact that the plaintiffs enclosed the'se separate demands in the same envelope and gave an aggregate of the amount in the accompanying letter does not affect the result. The two overcharges, as stated, were entirely distinct; the statement as to each, with the paid freight bill and duplicate bill of lading, amounted to a specific separate demand, com-píete in itself, and there was error in holding otherwise.
It was suggested on' the argument that the penalty was objectionable, in that the same was entirely disproportionate to the amount of the claim. The point is hardly presented in the appeal of plaintiffs, but we are.of opinion that the position is not well considered. The statute provides that the penalty in no case should exceed $100, and it is imposed, as stated, not primarily to facilitate the collection of claims, but to enforce the performance of the carrier’s duties, and it is in reference to these smaller claims that penalties are desirable and chiefly required. In larger matters the claimant can better afford the costs of litigation.
Speaking of the statute and the reasons for its efficient enforcement, the Chief Justice, in Cottrell’s case, 141 N. C., 383, said: “This statute was enacted in pursuance of a well-known public policy and to remedy a well-known evil. It is common knowledge that there are countless cases of shortage in freights and of overcharge, either by freight collected on such shortage or otherwise. Errors will happen, and some*134times are well-nigh unavoidable, but, none the less, justice and sound policy require the prompt investigation, of all claims and prompt payment of those that are just. These sums aggregate very many thousands of dollars annually, but each amount usually is too small a sum to justify the expense of litigation. Unless the railroad companies will promptly investigate and refund in such cases, the aggregate loss to the public is very great, and the exasperation in the public mind at the injustice is greater still. To give the public a remedy by insuring speedy investigation and payment, this statute was passed, requiring all common carriers, telegraph and telephone companies to investigate all claims for overcharges and refund in sixty days, prescribing a penalty of $25 for the first day’s delay beyond sixty days and $5 for each day’s delay thereafter; the total penalty, however, in no event to exceed $100. The companies that, either- voluntarily or in obedience to law, investigate promptly and refund all claims for overcharge which are found to be just within sixty days, suffer no inconvenience from this statute. Those who are so inconsiderate of just claims as not to adjust them within sixty days are proper subjects of the penalty, and prove the necessity of this statute, without which those having claims for overcharges could not get payment of them without great delay and annoyance, if at all, when the sum is too small to justify payment of a lawyer’s fee and advancement of court costs.”
The constitutionality of the act has been upheld in an opinion delivered at the present term on defendant’s appeal.
There is error, which entitles plaintiffs to a new trial, and it is so ordered.
New Trial.