113 Ark. 248 | Ark. | 1914
(after stating the facts). In the case of Cumbie v. St. Louis, I. M. & S. Ry. Co., 105 Ark. 406, the court held that a provision in a bill of lading of fruit that a written notice of intention to claim damages should be presented to the carrier within thirty-six hours after notice to the consignee of arrival of the fruit at the place of delivery is not unreasonable, as it is the consignor’s duty to have the consignee, or an agent, at the destination 'to ascertain the condition of the fruit. See also St. Louis & S. F. Rd. Co. v. Pearce, 82 Ark. 353. A stipulation in a contract for the shipment of live stock requiring notice of a claim for- loss or injury within a specified time is for the protection of the carrier and may he waived by it. Cumbie v. St. Louis, I. M. & S. Ry. Co., supra; St. Louis S. W. Ry. Co. v. Grayson, 89 Ark. 154; St. Louis, I. M. & S. Ry. Co. v. Jacobs, 70 Ark. 401.
In the Cumhie case the court sustained a demurrer to the complaint. In that case the complaint alleged that the delivering carrier, through its agent, -examined and knew of the condition of the peaches while in its possession after their arrival at their destination. The court held that where the facts stated show that the delivering carrier has actual knowledge of all the conditions that a written notice could give it, then the written notice is not required. It was, therefore, held that the court erred in sustaining a demurrer to the complaint.
In the Grayson ease the claim was presented to a general officer of the railway company. He directed that the claim be presented to the chief clerk in the claim department, which was accordingly done, and negotiations looking to an adjustment of the damages were pending for some time thereafter. The court held -that the railway company, by proceeding to investigate the claim, led the shipper to believe that the claim would be settled on its merits and that the jury, under such circumstances, was warranted in finding that the railway company waived the immediate notice stipulated in the contract.
In the Jacobs' case, verbal notice was given to the proper agents of the railway company, upon which they acted, making all investigations they desired to make and without demanding any written notice. The court held that under these circumstances there was a waiver of the written notice.
In the present case, verbal notice was given by the shipper to a claim agent of the railway company at Kansas City, the place of destination. No notice of any kind was given to any general officer of the company at the place of destination, or to the station agent there. The claim agent was not such an agent to receive notice as was provided in the contract; and it is not shown that the claim agent had any authority to represent the railway company in the matter of receiving the notice contemplated by the contract. The claim agent, upon receiving the verbal notice, did not enter into negotiations with the shipper looking to an adjustment of his alleged loss. He did not accept the notice nor in any wise act upon it. He did not mislead the shipper in any way, but told him that he must give a written notice as required by the contract. Mere knowledge on the part of the claim agent of the railway company that the shipper claimed damages for injury to his cattle, unaccompanied by any act upon the part of the. claim agent looking to an adjustment of the loss, is not sufficient to constitute a waiver of a stipulation requiring the claim to be made in writing within a prescribed time. There is nothing in the record tending to show any circumstances from which the jury might have inferred that the carrier waived the stipulation requiring written notice within the time specified in the contract. There is nothing in the record, as was in the Cumbie case, to show knowledge on the part of the company that the shipper had suffered loss. It was not shown that the claim agent was the proper person to receive the notice, and his knowledge could not be imputable to the- railway company. The court therefore erred in not directing a verdict for the railway company. For this error the judgment must be reversed, and, inasmuch as the facts of the case seem to have been fully developed, the cause of action of the plaintiff will be here dismissed.
