120 Ark. 26 | Ark. | 1915
This is an action against a common carrier to recover damages on certain shipments of cattle from Camden, Arkansas, to East St. Louis, Illinois. There were three separate shipments, and a email amount of damage is claimed on account of each. The total sum claimed 'by the plaintiff was $96.12, and on trial of the case, the jury assessed damages in the sum of $60 in favor of the plaintiff. The damage to the cattle arose principally from delay in the first shipment, which is shown to have resulted in a loss by reason of depreciation in the market and shrinkage in weight of the cattle. There is evidence sufficient to sustain the recovery for the amount awarded 'by the jury.
Each of the bills of lading contained a stipulation to the effect that as a condition precedent to the collection of any damage for loss and injury covered by the contract, the shipper should “give .notice in writing of the claim therefor to some general officer or to the nearest station agent of the carrier, or to the agent at destination, or to some general officer of the delivering line; ’ ’ and that no action against the carrier for the recovery of damages arising under the contract .should be sustainable “unless such action or suit be commenced within six months' next after the cause of action shall occur.” It is undisputed that neither of these stipulations were complied with, and the only question -presented -on this appeal is whether or not the stipulations are valid and binding upon the parties. The shipments constituted interstate commerce, and the contract with reference thereto must be tested in the light of the Federal laws on the -subject.
“The validity of any stipulation in such a contract which involves the construction of the statute,” said the Supreme Court of the United States in M., K. & T. Ry. v. Harriman, 227 U. S. 657, “and the validity of a limitation upon the liability thereby imposed is a Federal question to he determined under the general common law, and, as such, is withdrawn from the field of 'State law or legislation. ’ ’
In the same case the Supreme Court of the United States said: “The policy of statutes of limitation is to encourage promptness in the bringing of actions, that the parties shall not suffer by loss of evidence from death or disappearance of witnesses, destruction of documents or failure of memory. But there is nothing in the policy or object of such statutes which forbids the parties to an agreement to provide a shorter period, provided the time is not unreasonably short. That is a question of law for the determination of the court. ”
It is not contended that either of the stipulations mentioned above are unreasonable, but the correctness of the court’s ruling in rendering judgment against the carrier is defended on the ground that the plaintiff was not given the right to ship his live stock under an unrestricted contract. One of the plaintiffs testified that he accepted the contract that was offered to him by the railroad agent. The undisputed evidence in the case is that there were two rates established by the carrier; one (the higher rate) under an unrestricted contract as to the liability of the carrier, and the other (the lower) limiting the liability in certain respects. The contract under each of the rates, however, contains the same stipulation with reference to giving notice, and the time within which an action may be brought.
In St. Louis & S. F. Rd. Co. v. Pearce, 82 Ark. 353, we said: “It was improper to permit the plaintiffs to testify that they signed the contract without reading it, and that the agent did not inform them that there was another rate under a contract of unrestricted liability. The agent was not bound to so inform them unless requested to do so, as information was obtainable from other sources provided by law; and unless the agent refused, upon demand, to accept the shipment at another rate under a contract for unrestricted liability, there is no reason for holding the contract to be void, as this court has held that the contract is valid and binding where-it is not forced upon the shipper.”
■Counsel for plaintiff rely upon the decision of this court in the case of St. Louis & S. F. Rd. Co. v. Wells, 81 Ark. 469, where we said that the special contract, being found to be invalid on account of having been forced upon the shipper without giving him an opportunity to ship under an unrestricted contract, “all question as to limitation as to value of the property and the time for bringing the action passed out of the case. ’ ’ In that case, however, the railroad company sought to defend under a contract which was void because it had been in fact forced upon the shipper, and no opportunity was given the shipper to take advantage of an unrestricted contract with respect to the liability of the carrier. It was shown that that particular writing was not enforceable for the reason that the shipper had been compelled to take it and surrender his substantial common law rights against the carrier. Therefore it was proper to say that, as the contract was found to be void on that account, all those provisions passed out of the case.
Such is not the present case, however, for it appears that the carrier had two rates, either of which the shipper might have taken advantage of; and since he accepted, without further inquiry, the contract for restricted liability, he is bound by it.
The judgment is therefore reversed and the cause dismissed.
