Schloss-Bear-Davis Co. v. Louisville & Nashville Railroad

AlleN, J.

The question presented by the objection to evidence tending to prove a waiver of the written notice of the claim for damages, and by the motion for judgment of nonsuit, was fully considered at the last term in Baldwin v. R. R., 170 N. C., 12, and in two other cases the opinion in one of wbicb was written by Associate Justice Walker and the other by Associate Justice Hoke, and in all the same conclusion was reached.

The Court said in the first of these cases: “Stipulations in bills of lading covering shipments of live stock, requiring written notice of the claim for damages to be given before the stock is removed from the possession of the carrier, are valid (Selby v. R. R., 113 N. C., 588; Austin v. R. R., 151 N. C., 137); but the requirement that the notice shall he in writing is waived upon proof of actual knowledge of the injury. Kime v. R. R., 153 N. C., 398; Kime v. R. R., 156 N. C., 451; Kime v. R. R., 160 N. C., 464; Wilkins v. R. R., 160 N. C., 58.

“These decisions, the result of mature consideration, were rendered upon interstate shipments and after the enactment of the Elkins Act of 1903, which the defendant contends changes the rule, and we are not inclined to depart from them, at least until there is an authoritative construction of the Federal act to the contrary by the Supreme Court of the United States, which would be binding on us.

“The rule permitting knowledge to supply the written notice is not a discrimination between railroads, nor is it a preference in favor of a particular shipper at the expense of others.

“It is a mode of proof applicable alike to all railroads and in favor of all shippers, and it is enforced against a carrier who has had possession of the property with every opportunity to know the extent of the injury and its cause.”

The ruling of the Interstate Commerce Commission, No. 456, which has been called to our attention, does not, in our opinion, purport to make any change in existing law, nor does it materially affect the principle involved. It deals only with the form of the written notice when it is given, expressing the view of the Commission that a claim or a written notice of intended claim, describing the shipment with reasonable definiteness, will be sufficient; but it does not say that there can be no waiver of such notice or claim.

The contention of the defendant that to permit a waiver of the written notice will afford additional opportunity for discrimination does not impress us as being sound, because if, by collusion between the shipper and the carrier, a false or pretended claim could be established by evidence of a waiver, and thereby a rebate in the freights could be obtained to the extent of the claim, the same result could be reached by the filing of a written notice.

The instruction requested by the defendant is in the abstract correct, but his Honor was justified in refusing it, because there was no evidence presenting the facts embodied in the instruction.

It does not appear in the record whether the stock was old or young, broken or unbroken, gentle or vicious, and if the instruction had been given it would have left the matter open to mere conjecture on the pail; of the jury.

The instruction given to the jury to which the defendant excepted is fully supported by the authorities. Mitchell v. R. R., 124 N. C., 236; Everett v. R. R., 138 N. C., 68; Peele v. R. R., 149 N. C., 393.

We find no error which entitles the defendant to a new trial.

No error.