91 S.E. 1042 | S.C. | 1917
Lead Opinion
March 2, 1917. The opinion of the Court was delivered by Defendant appeals from judgment for plaintiff for $210.50 damages for alleged negligent injury to some horses *26 and mules in interstate transportation. As a defense to the action, defendant alleged and the proof showed that plaintiff had not given written notice of his claim for damages in compliance with the following stipulation in the bill of lading:
"That as a condition precedent to any right to recover any damage for loss or injury to said live stock, notice in writing of the claim therefor shall be given to the agent of the carrier actually delivering said live stock wherever such delivery may be made, and such notice shall be so given before said live stock is removed or is intermingled with other live stock."
Against objection of defendant, the Court admitted testimony which plaintiff offered to show waiver of the written notice required by the stipulation, and instructed the jury that, although the stipulation was valid and binding upon the parties, nevertheless it might be waived by the defendant and submitted to them the question whether, in fact, it had been waived, and instructed them, further, that unless they found from the evidence that it had been waived, their verdict should be for the defendant.
While the exceptions challenge the correctness of other rulings and instructions, we need consider only the one above stated, as that will be decisive of this appeal. This Court held in Crawford v. Railway,
"The action is in trover, but, as the State Court said, `if we look beyond its technical denomination, the scope and effect of the action is nothing more than that of an action for damages against the delivering carrier.'
In Kansas Southern Ry. v. Carl,
"To the extent that such limitations of liability are not forbidden by law, they become, when filed, a part of the rate."
It is settled by numerous decisions that an interstate carrier cannot alter or waive the rate filed with the commission. Having held that the stipulation was valid and applicable, the Court erred in admitting evidence to show waiver *28 of the provisions, and in instructing the jury that the carrier could waive them.
Judgment reversed.
On petition for rehearing
Addendum
The only point decided by this Court was that, having held the stipulation valid and applicable, the Circuit Court erred in holding that it could be waived. Neither the validity nor applicability of the stipulation was before this Court, and, of course, the decision does not adjudicate either point.