New Orleans & N. E. R. v. Wood , 112 Miss. 614 ( 1916 )

Steveks, J.,

■ delivered the opinion of the court.

(After stating the facts as above). We base an af-firmance of this case upon the testimony which tends to prove, and which is sufficient to warrant the jury in finding, that the provisions of the contract in reference to notice of claim for damages were waived. The only point argued by counsel for appellant is the alleged failure of appellee to give the notice required by clause 8 of the contract. Counsel cite, as binding upon this court, Atchison, etc., R. Co. v. Harold, 241 U. S. 371, 36 Sup. Ct. 665, 60 L. Ed. 1050, Northern Pacific R. Co. v. Wall, 241 U. S. 87, 36 Sup. Ct. 493, 60 L. Ed. 905, Cincinnati, etc., R. Co. v. Rankin, 241 U. S. 319, 36 Sup. Ct. 555, 60 L. Ed. 1022, Georgia, etc., R. Co. v. Blish Milling Co., 241 U. S. 190, 36 Sup. Ct. 541, 60 L. Ed. 948, and other pronouncements of the Federal supreme court. We readily concede the binding authority of these cases wherever and whenever applicable to the facts of any particular case. The contention is here made that, under the decision of the Federal supreme court, in Georgia, etc., R. Co. v. Blish Milling Co., supra, the agent of appellánt could not waive any of 'the provisions of the contract covering an interstate shipment. We do not so construe the opinion in that case. The court did decide that the shipper could not waive or utterly ignoré the entire contract and sue the carrier in trover. He could not, by changing the form of his action and suing in tort, escape.the obligations imposed upon him by the contract. In the instant case, the contract itself provides that the provisions requiring written notice of -the claim to be served within twenty-four hours after the stock reaches the point of destination is inserted “to the end that such claim may be fully and fairly investigated.” It is inserted for the benefit of the carrier. A substantial, and not a literal, compliance with the terms of the contract is all that would be. required in any case. We see no reason why the benefit of this provvision could not be waived.

The evidence in the present case sufficiently shows a waiver. The very station agent, who, by the contract, is authorized to accept the written notice, assures the shipper that he will have sufficient time to propound his claim; and the circumstances under which he gives this assurance, taken, in connection with the language employed by the agent, might, naturally, mislead any ordinarily prudent man. The regular station agent was personally notified of the damage within a few hours after the shipment arrived, and the agent himself assisted the shipper in unloading the car and in making a personal examination of the live stock, their injuries, general condition, and the apparent damage to the entire» shipment. In making this personal observation the agent takes the expense bill, and himself makes a written notation thereon of the damage which he personally observed, and signs his own name thereto. In addition to the verbal notice given by the shipper, and the personal examination made by the station agent himself and his written notation upon the expense bill of the extent of the damage as he saw it, appellee, on the 18th day o.f the same month, filed a formal written demand for damages. The expense bill referred to had the following notation:

“Two dead, one in bad condition, the balance bruised and in bad shape. Received payment for the company, August 2, 1914.

“M. E. Waed, Agent.”

The failure to give any formal written notice within the twenty-four hours stipulated did not under the circumstances of this case, in any way prejudice the rights of appellant. It accepted the verbal notice; its agent made the necessary examination, made a written notation of the extent of damage, and himself assured the shipper that the latter had ample time' in which to propound his claim for damages. The shipper followed up this understanding with the agent by formally filing his written claim for damages in a few days thereafter; and'the presentation of this subsequent written claim on the 18th day of August in no wise changed the claim which plaintiff interposed on the day he received the injured cattle. The wholesome purpose which the provision for notice was intended to serve was fully accomplished.

Liberal instructions were given appellant on the .trial in the court below, the case was fairly presented to the jury, and there is no reason to disturb their verdict.

Affirmed.