82 Ark. 339 | Ark. | 1907
The plaintiffs, Pearce & Puckett, sued the railroad company to recover damages to a shipment of live stock caused by alleged negligence in failure to promptly transport and deliver at the destination. They exhibited with their complaint a contract of carriage with the company containing, among other things, a stipulation to the effect that no action against the company should be maintained unless the same should be commenced within six months next after the cause of action should accrue. This action was commenced more than six; months after the cause of action accrued, and the defendant pleaded the delay in bar of plaintiff’s right to maintain the action.
To avoid the effect of the delay, the plaintiffs introduced in evidence a letter addressed to them by defendant’s authorized agent within the period of limitation requesting them to wait a few days until the claim could be investigated. It is, however, undisputed that on March 17, 1903, which was one month and twenty days before the expiration of the period of limitation, defendant’s agent notified plaintiffs that the claim was disallowed and liability denied. They admitted that the notice was received.
The defendant requested the court to give the following, among other instructions, which request was refused:
' “7. If you find from the evidence that the claim of plaintiffs was declined or turned down by the letter of J. E. Leith, freight claim agent, of date of March 17, 1903; that the letter was mailed postpaid to Pearce & Puckett on or about the 17th of March, 1903, and was received by Puckett, a member of the firm,' and if you find that either of them were notified prior to that time that the claim had been refused or declined, and you find that the complaint was not filed in this court* until the 10th day of September, 1903, this cause of action would be barred by the stipulations of the parties, and you should find for the defendant.”
This instruction should have been given. The stipulation is reasonable, and the court should have so instructed. 1 Hutchinson on Carriers, § 448.
The undisputed evidence was that the notice had been given about one month and twenty days before the expiration of the period of limitation stipulated in the contract, and it contained an explicit denial of liability for the damage and a refusal to pay. The action was not commenced until nearly six months after the notice as given. This left nothing to be submitted to the jury, as the undisputed evidence established- the bar to the plaintiff’s right to recover.
Reversed and remanded.