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bility, to give notice of his claim according to the reasonable conditions of the contract.

Sec. 443. Same subject-Condition limiting time within which claim shall be made must be reasonable.-The owner, however, will not be precluded from the right to recover for a loss or injury where, to require him to present a notice of his claim within a specified time, would be unreasonable.1 Thus if

Railroad, 153 Penn. St. 302, 25 Atl. Rep. 1107; Eckert v. The Railroad, 211 Penn. St. 267, 60 Atl. Rep. 781; Weir v. Express Co., 5 Phila. 355.

Tennessee: Co. v. Glenn, 16 Lea, 472; Glenn v. Express Co., 86 Tenn. 594.

Southern Express

Texas: Gulf, etc. Ry. Co. v. Trawick, 68 Tex. 314; Texas, etc. Ry. Co. v. Adams, 78 Tex. 372; Railway Co. v. Greathouse, 82 Tex. 104, 17 S. W. Rep. 834.

The Iowa code provides that no contract, receipt, rule or regulation shall operate to relieve any railroad corporation from the liability of a common carrier which would exist had no contract, receipt, rule or regulation been made. It was held under this provision that a condition to the effect that no claim for loss or damage should be valid, unless made in writing and delivered to an agent of the railroad company within 10 days from the time the goods were removed from the cars, could not be upheld. Grieve v. The Railroad, 104 Iowa, 659, 74 N. W. Rep. 192.

In Kentucky, by constitution, common carriers are forbidden to contract for relief from their common law liability. An agreement that no claim for loss or damage to stock should be valid

against the carrier, unless made in writing and delivered to an agent of the carrier within 10 days after the stock was removed from the cars, was held to be violative of the constitutional provision and therefore void. Brown v. The Railroad, 100 Ky. 525, 38 S. W. Rep. 862; Railroad Co. v. Radford, 23 Ky. Law Rep. 886, 64 S. W. Rep. 511. See also, Ohio, etc. Railroad Co. v. Taber, 98 Ky. 503, 36 S. W. Rep. 18, 34 L. R. A. 685.

A provision that notice of claim must be presented within 10 days from the date of unloading the goods is held to be void under the law of Nebraska. Union Pacific R. Co. v. Thompson, Neb.

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106 N. W. Rep. 598.

1. Central, etc. R. Co. v. Soper, 59 Fed. 879, C. C. A. 341, 21 U. S. App. 24; The Minnetonka, 132 Fed. 52; Southern Express Co. v. Caperton, 44 Ala. 101; Express Co. v Bank of Tupelo, 108 Ala. 517, 18 So. Rep. 664; Railway Co. v. Steele, 6 Ind. App. 183, 33 N. E. Rep. 236; Richardson v. The Railway, 62 Mo. App. 1; Popham v. Barnard, 77 Mo. App. 619; Osterhoudt v. The Railway, 62 N. Y. Supp. 134, 47 App. Div. 146; Jennings v. The Railway Co., 127 N. Y. Supp. 438, 28 N. E. Rep. 394; Dixie Cigar Co. v. Express Co., 120 N. Car. 348, 27 S. E. Rep. 73, 58

the contract were to provide that notice of the claim should be presented within a certain time to some officer or agent nearest the point of destination, and it were shown that the officer or agent was at such a distance from that point, or was so otherwise inaccessible that the owner in the exercise of reasonable diligence could not have presented the notice within the time. stated, the condition would be unreasonable and would not avail the carrier.2 In determining whether the time within. which the notice of claim must be presented is reasonable, re

Am. St. Rep. 795; Memphis, etc.
R. Co. v. Holloway, 9 Baxt. 188;
Railroad Co. v. Temple, 47 Kan.
7, 27 Pac. Rep. 98, 13 L. R. A.
362; Goggin v. Railway Co., 12
Kan. 416; Missouri, etc. Ry. Co. v.
Paine, 1 Tex. Civ. App. 621, 21 S.
W. Rep. 78; Railway Co. v. Great-
house, 82 Tex. 104, 17 S. W. Rep.
834; Pecos, etc. Ry. Co. v. Evans,
etc. Co., Tex. Civ. App.
93, S. W. Rep. 1024.

1

A stipulation in a bill of lading which requires a written claim for loss or damage to be made with in 30 days after the loss or damage occurs, where the entire transit may reasonably consume the whole of such time, is unreason. able and void. Central, etc. R. Co. . Soper, supra.

But the fact that the shipper gives notice of his claim as soon as he learns of the injury will not excuse him for failure to give it within the time stated where he made no effort, after the shipment arrived, to learn of its condition. Freeman v. Railway Co., Mo. App.

93 S. W. Rep. 302. 2. Engesether v. The Railway, 65 Minn. 168, 68 N. W. Rep. 4; Missouri, etc. Ry. Co. v. Paine, 1 Tex. Civ. App. 621, 21 S. W. Rep. 78. Where a stipulation in a stock

shipping contract provided that the owner of the stock, as a condition to his right to hold the carrier liable for loss or damage to the stock, should give notice in writing of his claim to the nearest station agent or some officer of the carrier before the stock was moved from the place of destina tion and before it was mingled with other stock, and it was shown that the point to which the stock was to be transported was several hundred miles beyond the carrier's line of railroad, and that at such place there was no officer or agent upon whom the service of notice could be had, it was held that the contract was unreasonable and therefore void. Carpenter v. The Railway, 67 Minn. 188, 69 N. W. Rep. 720.

A requirement that notice in writing shall be given to an initial carrier before stock, which has passed over several connecting lines, has been removed from destination, is unreasonable. Coles t. Railroad Co., 41 Ill. App. 607. But since a carrier, in undertaking by contract to carry over several connecting routes to destination, adopts the routes of such connecting carriers as its own, notice served upon an agent of the final

gard must be had to the time which might ordinarily be expected to elapse in the usual course of business before the owner, by the exercise of reasonable diligence, could be in a position to present the notice to the carrier;3 and since the question must depend upon the circumstances of the individual case, it is ordinarily one of fact for the jury. So if the injury to the goods

be such that the owner in the exercise of reasonable diligence could not have discovered its extent until after the time for presenting notice of his claim had expired, the condition would be unreasonable and a notice presented within such reasonable time thereafter as would enable him to ascertain the extent of his loss would be a substantial and sufficient compliance with the condition.5

Sec. 444. Same subject-Carrier may waive benefit of such conditions. A condition requiring that notice of claim must be presented within a certain time, being intended for the benecarrier will be sufficient. Railway Co. v. Koch, 47 Kan. 753, 28 Pac. Rep. 1013.

The Railway, 127 N. Y. 438, 28 N.
E. Rep. 394.

Since the object of a stipulation

3. Cox v. Railroad Co., 170 Mass. requiring notice of claim within a 129, 49 N. E. Rep. 97.

4. International, etc. R. Co. v. Garrett, 5 Tex. Civ. App. 540, 24 S. W. Rep. 354; Texas, etc. Ry. Co. v. Barber, (Tex. Civ. App.) 30 S. W. Rep. 500; Railway Co. v. Ayers, 63 Ark. 331, 38 S. W. Rep. 515.

5. Railway Co. v. Steele, 6 Ind. App. 183, 33 N. E. Rep. 236; Popham v. Barnard, 77 Mo. App. 619; Railroad Co. v. Temple, 47 Kan. 7, 27 Pac. Rep. 98, 13 L. R. A. 362. Failure to give notice of claim within the time agreed upon will not prevent a recovery where the injuries sustained were such that they could not readily have been seen and were not actually discovered until the time for giving notice had passed. Oxley v The Railroad, 65 Mo. 629; Rice v. The Railway, 63 Mo. 314; Jennings v.

certain time is to prevent fraud on the carrier, if the injury be such that with ordinary diligence its extent cannot be discovered within the period named, a notice of claim within such reasonably short time thereafter as will ef fectually secure the carrier against fraud will be a sufficient compliance with the stipulation. Railroad Co. v. Sanders, 135 Ala. 504, 33 So. Rep. 482.

If the carrier requires notice of claim to be given within an unreasonably short time, the shipper is not relieved from giving any notice whatever. He must still give notice of his claim within a reasonable time; that is, he must at least comply with the requirement to the extent that he reasonably can. Osterhoudt v. The Railway,

fit of the carrier, he may, either expressly or by conduct inconsistent with an intent to rely upon it, waive the benefit of the condition. Thus if the carrier by his conduct should induce the owner to delay the presentment of the notice until after the time fixed for presenting it had expired, he would not be permitted to escape liability on the ground that the notice of claim was not presented within the stipulated time. And if the agent

62 N. Y. Supp. 134, 47 App. Div. 146.

6. Bennett v. Express Co., 12 Oreg. 49; Merrill v. Express Co., 62 N. H. 514; Railway Co. บ. Trawick, 80 Tex. 270, 15 S. W. Rep. 568; Railway Co. v. Ball, 80 Tex. 602, 16 S. W. Rep. 441; Railway Co. v. Jacobs, 70 Ark. 401, 68 S. W. Rep. 248; Soper v. Railroad Co., 113 Mich. 443, 71 N. W. Rep. 853; Railroad Co. v. Grimes, 71 Ill. App. 397; Railroad Co. v. Johnson, 114 Ill. App. 545; Railway Co. v. Heath, 22 Ind. App. 47, 53 N. E. Rep. 198; Frankfurt v. Weir, 83 N. Y. Supp. 112, 40 Misc. 683; Falkenberg v. The Railroad, 59 N. Y. Supp. 44, 28 Misc. 165; Hess v. The Railway Co., 40 Mo. App. 202; Harned v. The Railway, 51 Mo. App. 482; Wood . The Railway, 118 N. Car. 1056, 24 S. E. Rep. 704; United States Watch Case Co. v. Express Co., 120 N. Car. 351, 27 S. E. Rep. 74; Hinkle v. The Railway Co., 126 N. Car. 932, 36 S. E. Rep 348, 78 Am. St. Rep. 685; Railroad Co. v. Bogard, 78 Miss. 11, 27 So. Rep. 879; Railroad Co. v. Lazarus, 13 Ky. Law Rep. 461.

Where it is shown that the proper agents of the carrier had verbal notice of loss, and that they acted upon it without demanding any written notice, promptly mak. ing all the investigation desired,

a requirement that written notice of loss or damage should be given within a certain time will be deemed to have been waived. Railway Co. v. Jacobs, 70 Ark. 401, 68 S. W. Rep. 248.

Where the carrier fails to allege in its answer the existence of a condition requiring notice of claim within a certain time, or the manner in which the shipper has failed to comply with it, but goes to trial on an answer setting up other defenses, it will be deemed to have abandoned or waived the condition as a defense. Railway Co. v. Pace, 69 Ark. 256, 63 S. W. Rep. 62, citing Hutchinson on Carr.

But the fact that the carrier relinquishes his right to insist upon certain exemptions from his common law liability by virtue of a contract previously made will not relieve the shipper from presenting a written claim for loss where the contract of shipment so provides. Because the carrier may Iwaive the benefit of certain provisions exempting him from liability in case of loss, he does not thereby waive the right to demand the performance of a condition on the part of the shipper which is to be performed after the delivery of the goods. Pavitt . The Railroad, 153 Penn. St. 302, 25 Atl. Rep. 1107. So the failure of

of the carrier should induce the owner to go to the trouble and expense of making out a notice of his claim, and should lead him to believe that its presentment would not be insisted upon within the stipulated time, the carrier would be estopped from availing himself of the owner's failure to present it within such time as a defense.7 So if the carrier should accept a verbal notice without objection, and should treat the claim as pending, his conduct would amount to a waiver of a condition that the notice should be in writing.8 If the notice be defective in matter of form, as, for instance, if there were no affidavit attached as was required by the contract, and the carrier should accept it and enter into negotiations for a settlement, his conduct would constitute a waiver of the requirement. And it is held that a failure by the carrier to insert in the contract such information as is necessary to enable the owner to comply with its provisions in respect to giving notice will be equivalent to a waiver of the condition.10 But where, beside a stipulation requiring that notice of any claim shall be given the carrier within a certain time, it is provided that no agent of the carrier has any authority to waive or modify any of the provisions of the contract, conduct by an agent which would ordinarily amount to a waiver will not be binding on the carrier.11

the agents of a steamship line to insist upon notice of claim on prior occasions will amount to nothing on the question of waiver in a later case. The Westminster, 127 Fed. 680, 62 C. C. A. 406.

Where the carrier receives a claim after the time limited for presentment has expired, treats it as pending and then rejects it on other grounds, he will be deemed to have waived his right to notice within the time limited. McFall v. Railroad Co., Mo. App.;

94 S. W. Rep. 570. 7. Hudson v. The Railroad, 92 Iowa, 231; 60 N. W. Rep. 608, 54 Am. St. Rep. 550.

Supp. 112, 40 Misc. 683; Railroad Co. v. Grimes, 71 Ill. App. 397; Railway Co. v. Jacobs, 70 Ark. 401, 68 S. W. Rep. 248. See also, Isham v. Erie R. Co., 98 N. Y. Supp. 609.

9. Wabash, etc. R. Co. v. Brown, 152 Ill. 484, 39 N. E. Rep. 273, affirming 51 Ill. App. 656; Soper v. The Railroad, 113 Mich. 443, 71 N. W. Rep. 853; Summers v. The Railroad, Mo. App. 79 S. W. Rep. 481; Ingwersen v. Railway Co., Mo. App. 92 S. W. Rep. 357.

10. Railway Co. v. Reeves, 97 Va. 284, 33 S. E. Rep. 606, 16 Am. & Eng. R. Cas. (N. S.) 166.

11. Railway Co. v. Kirkham, 63

8. Frankfurt v. Weir, 83 N. Y. Kan. 255, 65 Pac. Rep. 261.

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