108 P. 480 | Ariz. | 1910
This action was brought to recover damages alleged to have been caused by the negligence of the railroad company in transporting sheep from Del Eio, Arizona, to Kansas City, Missouri. The complaint sets forth that the sheep were transported according to the terms of a bill of lading, a copy of which is attached to the complaint and made a part thereof. The instrument so attached is a special shipping contract, which recites that the shipper assents to its terms in order to obtain the lower of two rates, and is signed by the consignor. The eighth clause of this contract provides: “In order that any loss or damage to be claimed by the shipper may be fully and fairly investigated and the fact and nature of such claim or loss preserved beyond dispute and by the best evidence, it is agreed that as a condition precedent to his right to recover any damages for any loss or injury to his said stock during the transportation thereof, or at any place or places where the same may be unloaded or loaded for any purpose on the company’s road, or previous to the loading thereof for shipment, the shipper or his'agent in charge of
The complaint does not allege any notice of loss or injury to the sheep given prior to the time they were intermingled with other stock. The defendant demurred to the complaint upon the ground, among others, that it appeared therefrom that the giving of notice under the eighth clause of the contract sued upon was a condition precedent to the maintenance of plaintiff’s action, and the giving of such notice should therefore be alleged. The demurrer was overruled. The case went to trial, and at the close of plaintiff’s evidence, notice not having been proven, the defendant moved the court to direct a verdict in its favor. This motion was denied. The court was then asked to instruct the jury that such notice was necessary, and that unless it was shown to have been given they must find for the defendant. The court declined to give this instruction. A verdict was returned in favor of the plaintiff, and from the judgment entered thereon, and from the ruling of the court denying a new trial, this appeal is brought.
The assignments of error requiring our attention raise the question as to the necessity of pleading and proving the notice required by the eighth clause of the contract. The trial court, it appears, held the stipulation contained in this clause to be unreasonable. The action is brought upon the contract. The performance of the condition is not alleged, nor is any excuse shown for nonperformance. If it may be said as a matter of law that the stipulation is invalid, it is not necessary that the complaint should contain the allegations indicated, but if it may not be so said, then it would seem
In Case v. Railroad Co., 11 Ind. App. 517, 39 N. E. 426, where »a stipulation to give notice was involved, it is said: “That such a provision as we are considering, where reasonable, must be regarded as a condition precedent, performance of which must be alleged to make the complaint good, was decided in Express Co. v. Harris, 51 Ind. 127, followed by this court in Railroad Co. v. Widman, 9 Ind. App. 190, 36 N. E. 370. To the same effect is Railroad Co. v. Simms, 18 Ill. App. 68.”
In Metropolitan Trust Co. v. Railroad Co. (C. C.), 107 Fed. 628, the court had under consideration a stipulation in a shipping contract, providing for notice of damage. The court says: “In the complaint there is no allegation that the petitioner made a claim in writing, verified by affidavit, and delivered the same to some proper officer or agent of the receiver, Hunt. Nor does the complaint show any waiver or excuse for -a failure so to do. An averment showing the making of the claim under oath, and the delivery of it, as required by the contract, is a conxlition precedent, and is necessary to constitute a good cause of action.” See, also, Osterhoudt v. Southern Pacific Co., 47 App. Div. 146, 62 N. Y. Supp. 134, Kalina v. Railroad Co., 69 Kan. 172, 76 Pac. 438, A., T. & S. F. Ry. Co. v. Means, 71 Kan. 845, 80 Pac. 604, and St. Louis & S. F. Ry. Co. v. Pearce, 82 Ark. 353, 118 Am. St. Rep. 75, 101 S. W. 760.
Stipulations in shipping contracts, requiring notice to be given of loss or damage to livestock before permitting the stock to be intermingled with other stock, have been upheld as reasonable in cases too numerous to cite here. They have been collected in exhaustive notes in the ninth and fourteenth volumes of the American and English Annotated Cases, at pages 17 and 416, respectively. In some states, such stipula
The purpose of the stipulation is to prevent fraud upon the carrier, to enable the carrier to investigate the claim of the shipper, and, if proper, to adjust it at once. As is said in Owen v. Railroad Co., 87 Ky. 626, 9 S. W. 698: “If executed in good faith, this stipulation must result in a benefit to both the owner of the stock and the carrier. ’ ’
It follows that a stipulation which is not inherently unreasonable, but which is unreasonable when applied to a certain state of facts, should be met in the complaint by a recital of
■ KENT, C. J., and LEWIS, J., concur. DOAN, J., did not participate in the decision of this case.