Illinois Central Railway Co. v. W. J. Davis & Co. , 112 Miss. 119 ( 1916 )

IíoldeN, J.,

delivered the opinion of the court.

This case was appealed from the circuit court of Hinds county, where the appellee, W. J. Davis & Co., recovered a judgment against appellant for damages to stock in transit. On May 8, 1916, we affirmed the judgment of the lower court, hut after a careful consideration of the suggestion of error filed here by the appellant, we are forced to the conclusion that our decision in affirming the judgment of the lower court was error.

The three questions presented in this case are: ’ First, whether or not there was a consideration upon which to base the stipulation in the contract, requiring that the shipper shall make claim for any damage or loss within ten days from the date of delivery of the car of stock; second, whether or not this stipulation, requiring such notice within that time, is a reasonable stipulation; and, third, whether or not, in this case, the appellant railroad company received and accepted verbal .notice of the -claim within the prescribed time, and thereby waived the stipulation in the contract.

The facts in the instant case do not bring it within the rule announced in Yazoo, etc., R. Co. v. Bell, 71 So. 272. The record here shows two different rates were offered by the railroad to the shipper, and the shipper .accepted the lower rate, which, as- held in the Harriman Case, 227 U. S. 657, 33 Sup. Ct. 397, 57 L. Ed. 690, is a sufficient consideration for the validity of the clauses in the contract of shipment.

In the case of G., F. & A. Ry. Co. v. Blish Milling Co., 241 U. S. 190, 36 Sup. Ct. 541, 60 L. Ed. 948, it is held that a provision in a bill of lading, requiring a claim to Ibe .filed within the stipulated time, is valid. In the Earriman Case, supra-, similar provisions and stipulations in such contracts are held to be' reasonable and valid if supported by a consideration. Railway v. Wall, 241 U. S. 87, 36 Sup. Ct. 493, 60 L. Ed. 905. The shipment of stock in the case before us was an interstate •shipment and, of course, the rule announced by the Federal courts in such cases will be followed by the state courts. We think the stipulation in the contract in the case now before us is reasonable and valid. Chicago, etc., R. Co. v. Craig (Okl.), 157 Pac. 87; St. Louis, etc., Ry. Co. v. Marcofich (Tex. Civ. App.), 185 S. W. 51; Howard v. C., R. I. & P. Ry. Co. (Mo. App.), 184 S. W. 906; Baldwin v. Railway Co. (Iowa), 156 N. W. 17, L. R. A. 1916D, 335; St. Louis, etc., Ry. Co. v. Wynn (Okl.), 153 Pac. 1156; Crawford v. Southern Ry. Co., 101 S. C. 522, 86 S. E. 19; W. H. Mitchell & Co. v. Ry. Co., 15 Ga. App. 797, 84 S. E. 227; Cox v. Railway Co., 188 Mo. App. 515, 174 S. W. 127; St. Louis, etc., Ry. Co. v. Burnett, 117 Ark. 656, 174 S. W. 1165; Dunlap v. Railway Co. 187 Mo. App. 201, 172 S. W. 1178; Bowman v. Railway Co., 185 Mo. App. 25, 171 S. W. 642; Duvall v. Railway Co., 167 N. C. 24, 83 S. E. 21; M. & N. A. R. R. Co. v. Ward, 111 Ark. 102, 162 S. W. 164; Kidwell v. O. S. L. R. R. Co., 208 Fed. 1, 125 C. C. A. 313.

There was no waiver here by the appellant railroad •company, according to this record, of the stipulation of the ten-day notice in the contract. The appellee did not file his claim in writing with any of the proper agents of the railroad, as named and required by the terms of the contract, but he claims to have orally mentioned the damage or loss to a traveling freight agent of the appellant, who had no authority to receive such notice nor deal with such matters. Clegg v. Railroad, 203 Fed. 971, 122 C. C. A. 273.

The appellee, according to the proof in this record, having failed to file his claim for loss and damage within the time provided by the contract, is nor precluded from recovery. This court’s judgment of affirmance is set aside and the judgment of the lower court is reversed,, and judgment entered here for appellant.

Reversed*