This is an action for the value of goods delivered to the Great Northern Railroad at Devils Lake, North Dakota, and consigned to Jamestown, North Dakota. The Great Northern does not run into Jamestown, and a transfer to the Northern Pacific Railroad at the junction point of Leeds, North Dakota, was necessary. All points are within the state of North Dakota, so that the transaction was purely intrastate, and the so-called Carmack Amendment was not involved. The action then being brought against the initial carrier, the recovery, if any, must be had under the provisions of the following provisions of the North Dakota statutes [Comp. Laws 1913] :
“Section 6259: If a common carrier accepts freight for a place beyond his usual route, he must, unless he stipulates otherwise, deliver it at the end of his route in that direction to some other competent carrier, *274carrying to the place of address, or connected with those who thus carry, and his liability ceases upon making such delivery.
“Section 6260: If freight, addressed to a place beyond the usual route-of the common carrier who first received it, is lost or injured, he must within a reasonable time after demand, give satisfactory proof to the consignor that the loss or injury did not occur while it was in his charge, or he will be himself liable therefor.”
Mr. Justice Eobinson considers the latter of these sections to be penal in its nature and as such to be strictly construed; and since, in his opinion, the plaintiff has neither pleaded the statute nor provided a strict compliance therewith, he cannot recover. Although I agree with him in his general conclusions and in the general result arrived at, I do not agree with him in his particular reasoning and in his particular conclusions.
I do not consider that § 6260 of the Compiled Laws of 1913 is in any manner penal in its nature.
At the time of the passage of the act in question there was in the United States, and, in the absence of a specific statute upon the subject, a conflict of authority as to the liability of an initial carrier who> had accepted goods consigned to a point beyond its own line. See A. E. C. L. 882, 886. This doubt the statute (Comp. Laws 1913, § 6260), sought to -obviate, and in doing so adopted what may be called the English and minority American rule of strict liability of such initial carrier, unless “within a reasonable time after demand” he gives “satisfactory proof to the consignor that the loss or injury did not occur while it was in his charge.” This is not a penal statute, and as such to be strictly construed, but rather a modification in the carrier’s favor of the strict rule of liability for the entire length of the shipment which some American courts (following the English rule) have adopted, and which the legislature of North Dakota (as has the National Congress in interstate matters and by the passage of the so-called Carmack Amendment) could itself, and if it saw fit, have adopted.
The liability of the initial carrier, however, must none the less, and even in this view of the statute, be based upon the statute; and the-statute places no liability upon the initial carrier for a loss which does not occur while the goods are in its actual control, unless “within a reasonable time after demand” it fails to “give satisfactory proof to-*275the consignor that the loss or injury did not occur while it (the goods) was in his charge.”
This proof was furnished on the trial of the case, and I can find nowhere in the record any evidence which tends to show that before this time any demand was made of the company for its furnishing and production. All that the evidence shows is a demand for the value of the goods alleged to have been shipped, or, at the most, for their production. Since I construe the word “demand” as used in the statute to apply to a demand for the proof that the loss did not occur while the goods were under the control of the initial carrier, rather than to a demand for the goods or for the value thereof, I believe that the judgment of the District Court should be affirmed.