#### Kusin v. Chicago, Rock Island & Pacific Railway Company.

Opinion delivered March 23, 1925.

Carrier — pilinq claim op loss within stipulated time. — A 'Requirement'in á bill of lading that claims for loss, damage or ■ delay should be presented within ■ a stipulated time is not complied with nor waived, where the shipper notified the carrier of the loss of; goods, to which the carrier responded that it was doing everything possible to bring the claim to a settlement.

(Appeal from Pulaski Circuit Courts Second Division; *Richard M.j Mann,*Judge;

affirmed.-

*■-■Jean S Jones,*LittleRock; *Geo. J. Ginsberg,*Alexandria, La., »o'f counsel, for' appellant.

*•George B. Pugh,*Little Rock, for appellee.

Wood, J.

This action was instituted by the appellant'against-the appellee for the loss of a shipment of machinery shipped by -the appellant to Smith & Purbush Machine- Company-at Philadelphia, Pennsylvania, over appellee’s line of railway and connecting carriers. The shipment was delivered to the appellee’s local agent at Little Rock,. Arkansas, on March 23,1920, on which date the agent delivered to appellant a bill of lading evidencing the'contract'<jf shipment. The appellant alleged that the machinery had never been delivered- by the appellee and its connecting carriers- to the consignee, and that same .was lost/- The appellant specified the articles shipped and their value, amounting in the aggregate to ■the sum of $1,010.85,‘for which-he prayed judgment.

The-appellee denied the material allegations of the complaint, und set up,- among other things, in defense the following clause in the bill of lading: “As a condition precedent to recovery, claims must be made in writing to the originating, or delivering, carrier within six months after delivery-of the property; or, in case of failure-to make délivery; then within six months after a reasonable time for delivery has elapsed. Where claims- for loss, damage or delay -are not filed, or suits not instituted thereon, in accordance with the foregoing *294provisions, the carriers, will not be liable, and such claims will not be paid.”

The testimony on behalf of the appellant tended to show that the machinery was delivered to the appel-lee at Little Rock, Arkansas, for shipment to Smith & Furbush Machine Company at Philadelphia, on March 23, 1920. Under the testimony,- the shipment should have 'been delivered not later than June 23, 1920. On June 24,' 1920, the appellant notified the local agent of appellee at -Little Rock, by letter, that the machinery had not been delivered to the consignee. The letter to the local agent .gave the description of the machinery, the names of the consignor, and consignee,, the point of delivery, and stated that tlie appellant was' very much in need of the goods. Again, on October 25, appellant wrote the local -agent a similar letter. On October 29, 1920, at the appellee’s request, the bill of lading was forwarded to appellee’s local freight agent. On November 6, 1920,- the appellee’s local freight agent wrote the appellant to the effect that the shipment had gone forward-over the appellee’s connecting carrier at Memphis. Inclosed in. the letter was the freight, bill showing the delivery to the. connecting carrier. • The appellant also wrote, before December 23, 1920, a letter to the connect-. ing carrier’s local freight agent at Memphis, concerning the shipment; and again, on January 17, 1921, appellant wrote a letter to the local freight agent of the connecting, carrier at Memphis. The purport of- these letters was to- notify the local agent that the- machinery had not been delivered and that the appellant was needing the same, and. urging -the railway companies to see that the machinery was delivered. The appellee did not file a written demand-or claim for the loss of the machinery, giving the items and the value thereof, until February 7,1922. On that day appellant did file its claim showing, tlie value of each article of machinery lost, amounting in the aggregate to $1,010.85. On April 13,-1922, appel-lee’s superintendent, of freight claims wrote the appel*295lant a letter in which he stated: “In reply to yonr favor of April 6, 1922, relative to yonl claim,, amounting to $1,010.85, * * * we assure you that we are doing everything possible to bring same to a speedy .close;” and again, a similar letter on May 23, 1922, in which the appellee, among other things, stated: “We assure you that we are doing everything possible to bring this claim to a prompt settlement, and would thank you to wait just a little longer until the papers are returned.”

On February 3, 1923, appellee wrote appellant a letter as follows: “With furtheir reference to your claim, dated February 7, 1922, amount $1,010.85. * * * After a lengthy investigation we find that the shipment was delivered to the consignee at destination, they acknowledging receiving the entire shipment in six boxes, although the bill of lading called for seven; * * # therefore we are returning all papers in support of your claim, respectfully declined.”

The appellant asked the court to instruct the jury in effect that the correspondence constituted proper notice provided for in the bill of lading, and that the appellee was estopped by its correspondence from setting up in defense the insufficiency of the .alleged notice or claim or the mode or manner in giving same; that it should be presumed that the appellee had waiyed the stipulation in the bill of lading sued on. respecting the notice of, or claim for, the alleged lost shipment. The court refused to so instruct the jury, ,to which . ruling the appellant duly excepted. The appellee asked .the court to instruct the jury to return a verdict in its favor, which request the court granted, and to which, ruling the.appellant duly excepted.. The jury returned a verdict, as directed, and from a judgment-rendered in favor of the appellee is this appeal.

In *Chicago, Rock Island Ry. Co.*v. *Williams,*101 Ark. 436, this court had under consideration a provision *296in a bill of lading similar in- all -essential particulars to-that under review here., .In that, case-we saidc. “In. the present ease the. requirement is not merely for 'notice to the carrier that damage has .resulted, but it; is that .the • claim for the ‘loss, damage or delay’, shalpbe'presented within the stipulated time. The purpose of the requirement is to give the carrier timely opportunity tu investir gate the claim for damage after the sanie has been presented. This involves the right to investigate the. con-, tents of lost packages and the value of lost articles, as well as the facts bearing upon the question of its liability.. The distinction is clearly pointed out by Judge Riddick in the opinion of the court in *Western Union Tel. Co.*v. *Moxley,*80 Ark. 554, and’we are of the opinion that that decision is conclusive'of the present? case. It was'held in that case that, where the contract requiréd. the presentation of claim for daniages‘within a specified time, this requirement was not satisfied merely by‘ giving notice of the negligence of the company’s servants. This court' has in several cases held'that a provision of-this kind is reasonable and enforceable where sufficient time is given for presenting the claim or notice.”

In the recent case'of *Davis v. Henderson,*266 U. S. 92 (Arkansas case), the Supreme Court of .the United Stat’es held .(quoting syllabus)’: “A tariff rule,' approved by the Interstate Commerce Commission) providing that orders for cars given.' the' carrier’s local agent must be in writing, cannot be waived’by the carrier through the agent’s acceptance of‘oral notice ‘from’ the' shipper:In the opinion the count said: ' “There is ho" claim that; the rule requiring written' notice wias void. Tlie contention is that the'rule wás1 waived. It could not be. The transportation'‘service to be performed'1 was' that *of'*common carrier under published tariffs; The' rule was a part of the tariff.’’" 'See cases there cited. Also, *C. P. Blackburn & Co. et al*v. *Ann Arbor Railway Co. et al,*56 I. C. C. Reports 439; Traffic Law, Service *297Series 1921, § 2019, p. 317-318; Consolidated Freight Classification No. 4, p. 87. *

The judgment, is therefore-correct, and it is affrmed.

*

Reporter’s Note:

*The case of *Adams Express Company*v. *Van Pelt*was decided ¡by the Supreme Court of the United States on April' 13-, 1925, subsequent ito the rendition, of the decision in the present case; and the question of validity of the stipulation in the bill of lading concerning claim for damages was hot raised in the present'case.