Kidwell v. Oregon Short Line R. , 25 C.C.A. 313 ( 1913 )

GIRBERT, Circuit Judge

[1] (after stating the facts as above). The contract provided that unless “claims for loss, damage, or detention are presented within ten days from the date of the unloading of paid stock at destination, and before said stock have been mingled with other stock, such claim shall be deemed to be waived, and the carriers and each thereof shall be discharged from liability.” The evidence as to the plaintiff’s compliance with this provision is that at Shoshone he told the agent there that lie w~as going to put in a claim for side-tracking the cattle and “handling them bad” from Huntington on; that when he got to American Ralls he told the local agent there would be a claim against the company for damages sustained and injury to the cattle; that when lie got to Laramie City he told the agent there that there would be a claim for damages on the Short .Line, and possibly some of it on the Union Pacific going to South Omaha; and that after the cattle were sold at South Omaha he talked with the agent there and told him the same thing, and that the agent .advised him to put in tlic claim at Portland. The claim was put in at Portland, hut it was after the expiration of ten days from the unloading of the stock at destination and after the stock had been mingled with other stock.

If, on arrival of live stock at destination, the shipper who, as in this case, accompanies them finds that they have been injured by the negligence of the carrier, it is a reasonable provision of the shipping contract that he give notice to the carrier of the extent, nature, and amount of his claim for damages, and that this shall be done before the stock are mingled with other stock in order that the carrier may have the opportunity to make timely investigation and protect itself against fictitious or imaginary claims. It is no compliance with such a provision to remark to a freight agent of the carrier along the line of the route that the shipper is going to put in a claim for damages. Xor is it a compliance to inform the agent at the place of destination that there will be a claim against the company for damages. To impart the information that a claim will be presented is not to present “a claim for loss, damage, or detention.” It does not inform the carrier of the nature, extent, amount, or cause of damage. It gives no definite statement of facts upon which an investigation may be had, or which shows that an investigation is required.

[2] A stipulation that notice of a claim for damages be given before the stock is removed or intermingled with other stock, as a condition precedent to recovery, is a reasonable one, and it has been so held by the Supreme Court of the state in which the contract in this case was made. Smith Meat Co. v. Oregon, R. & N. Co., 59 Or. 206, 117 Pac. 303. And such is the uniform ruling of other courts on the same question. Clegg v. St. Louis & S. F. R. Co. (C. C. A.) 203 Fed. 971; Metropolitan Trust Co. v. Toledo, St. L. & K. C. R. Co. (C. C.) 107 Red. 628; Parrill v. Cleveland, C., C. & St. L. Ry. Co., 23 Ind. App. 638, 55 N. E. 1026; Austin v. Railroad, 151 N. C. 137, 65 S. E. 757; Wichita & Western Ry. v. Koch, 47 Kan. 753, 28 Pac. 1013; Atlantic Coast Line R. Co. v. Bryan, 109 Va. 523, 65 S. E. 30; Southern Ry. Co. v. Adams, 115 Ga. 705, 42 S. E. 35; St. Eouis & S. R. R. Co. v. Ladd, 33 Okl. 160, 124 Pac. 461. There was nothing in the circumstances, as disclosed by the record in the case at bar, to render the requirement of the notice negligible or impracticable, as in the case of Chicago, R. I. & P. Ry. Co. v. Spears, 31 Okl. 469, 122 Pac. 228. Nor was there any waiver of the notice on the part of the defendant. There was no error, therefore, in granting the nonsuit.

.The judgment is affirmed.