Since stipulations of this character are intended to secure the carrier against fraud and imposition, it is held that if the carrier is aware of the condition of the goods before they are removed from the place of destination, and is afforded ample opportunity to examine and inspect them, a notice of claim presented to him shortly after the goods are removed will be a substantial compliance with a condition requiring the owner to present a notice of his claim before the goods are removed from the place of delivery.12

Sec. 445. Same subject-How where damage has resulted from carrier's delay-Effect of failure to make delivery-Conversion. Since the purpose of these conditions is to afford the carrier a prompt opportunity to investigate the nature and extent of an alleged injury to the goods, they will be construed as referring only to claims for injuries to the goods themselves and not to claims for damages arising from a decline in their market value due to a delay by the carrier in sending them forward.13 Nor can the carrier insist on the performance of a condition that notice of claim shall be presented within a certain time after the goods have arrived at their destination where they have never in fact arrived at such point.14 So where the car

12. Railroad Co. v. Temple, 47 Kan. 7, 27 Pac. Rep. 98, 13 L. R. A. 362.

13. Kramer v. The Railway, 101 Iowa 178, 70 N. W. Rep. 119; Loeb v. The Railway, Mo. App.

85 S. W. Rep. 118; Leonard 1. The Railway, 54 Mo. App. 293; s. c. 57 Mo. App. 366; Louisville, etc. R. Co. v. Bell, 13 Ky. Law Rep. 393; Louisville, etc. R. Co. v. Smith, 14 Ky. Law Rep. 814.

14. A condition that a claim for damages must be made within 36 hours after the consignee has been notified of the arrival of the freight at the place of delivery is nullified by the failure of the goods to arrive at all at such place.

Ward v. The Railway, 158 Mo. 226, 58 S. W. Rep. 28.

A condition that a claim for damages should be filed within 20 days after delivery, or after the time for delivery, cannot be pleaded as a defense to an action for misdelivery where instead of informing the consignee that deliv ery had been made, the carrier falsely asserted that he still continued to hold the goods and promised a speedy return. Marrus r. Steamboat Co., 62 N. Y. Supp. 474, 30 Misc. Rep. 421, reversing, 60 N. Y. Supp. 994.

Where the shipper of a live animal contracted to give the carrier notice in writing of his claim in

rier has been guilty of a conversion of the goods, he cannot escape liability on the ground that the owner failed to present a notice of his claim according to the contract of shipment.15

Sec. 446. Same subject-How where carrier is holding goods in the capacity of a warehouseman.-Where the carrier is rightfully retaining possession of the goods in the capacity of a warehouseman, as where he is holding them at their destination for the purpose of securing his freight charges, he may still claim the protection of a stipulation in the contract of shipment that no claim for loss or damage shall be valid unless presented in writing within a limited time. The retention of the goods in the capacity of a warehouseman is an incident to the contract for their transportation, and the stipulation will not be deemed inapplicable in respect to the ordinary and incidental duties of a warehouseman which may rest upon him when his duties as a carrier have ceased.16

Sec. 447. Same subject-Burden of proof.-It has been held that a stipulation in the contract of shipment requiring the owner of the goods to present a notice of his claim to the carrier within a specified time after the goods have arrived at their destination is in the nature of a condition precedent to the

case of damage or injury to the animal within five days after the loss or injury occurred, and the animal, after it was injured, was not taken to destination where timely notice might have been given, but was hauled by the carrier, without the shipper's knowledge or direction, to a point beyond his reach and there killed, it was held that to require the ship per to give notice of his claim within the five days would be unreasonable and unjust and that he was not bound by the condition. Richardson v. The Railway, 149 Mo. 311, 50 S. W. Rep. 782, 13 Am. & Eng. R. Cas. (N. S.) 170.

52 S. E. Rep. 802; Railway Co. v. Fifth Natl. Bank, 26 Ind. App. 600, 59 N. E. Rep. 43; Railway Co. v. Potts & Co., 33 Ind. App. 564, 71 N. E. Rep. 685. A stipulation limiting the time for presentation of claims for loss or injury does not apply to a case where an express company is charged with a failure to account for money collected by it. Bardwell v. Express Co., 35 Minn. 344.

16. Armstrong v. The Railway, 53 Minn. 183, 54 N. W. Rep. 1059.

owner's right to enforce a recovery, and that he must show in the first instance that he has complied with the condition, or that the circumstances were such that to have complied with it would have required him to do an unreasonable thing.17 The weight of authority, however, sustains the view that such a stipulation is more in the nature of a limitation upon the owner's right to a recovery, and that the burden of proof is accordingly on the carrier to show that the limitation was reasonable and that the owner omitted to present the notice in proper form or within the time stated.18 But in the case of Baxter v. The Railroad,19 it was said: "It would seem that the apparent conflict between decisions bearing on the question may be reconciled upon the just construction that, when the shipper seeks to avoid such a condition, as applied to a shipment over the carrier's own line, the burden is upon him to prove such facts and circumstances as render compliance with its terms impracticable or unreasonable; but that, when the carrier seeks to apply it to a shipment terminating on a connecting line, it must show that it had an officer or station agent at or near the place of delivery upon whom the required notice could have been served, and who could, by reasonable diligence on the part of the consignee, have been ascertained and found.”

Sec. 448. Carrier may limit time within which suit shall be commenced. The carrier may, by an agreement with the owner of the goods, provide that, in case of loss or damage, suit

17. Kalina & Cizek v. Railroad Co., 69 Kan. 172, 76 Pac. Rep. 438.

The burden rests upon the ship per to prove such notice when the failure to give it is set up as a defense. The Westminster, 127 Fed. 680, 62 C. C. A. 406; s. c. 116 Fed. 123.

18. Cox v. Railroad Co., 170 Mass. 129, 49 N. E. Rep. 97; Railway Co. v. Ayers, 63 Ark. 331, 38 S. W. Rep. 515; Railway Co. v. Pace, 69 Ark. 256, 63 S. W. Rep. 62; Railway Co. v. Greathouse, 82

Tex. 104, 17 S. W. Rep. 834; Missouri, etc. Ry. Co. v. Paine, 1 Tex. Civ. App. 621, 21 S. W. Rep. 78; Hatch v. Railway Co., N. Dak. - 107 N. W. Rep. 1087, citing Kahnweiler v. Ins. Co., 67 Fed. 483, 14 C. C. A. 485; Malloy v. Railway Co., 109 Wis. 29, 85 N. W. Rep. 130; Gatzow v. Buening, 106 Wis. 1, 81 N. W. Rep. 1003, 49 L. R. A. 475, 80 Am. St. Rep. 1.

19. 165 Ill. 78, 45 N. E. Rep. 1003, reversing 64 Ill. App. 130.

shall be commenced within a limited time, and, if the limitation. is reasonable, it will be conclusive on the owner of the goods although it will require him to file his suit before the period fixed by the statute of limitations has expired.20 But in Kentucky where common carriers are forbidden to contract against their liability as it exists at the common law, a stipulation limiting the time within which suit should be commenced was held to be contrary to the statute of limitations and therefore void.21

Sec. 449. (§ 259a.) Where liability is limited by contract, burden of proof is upon the carrier to show himself within the exception.-Where under the contract of shipment the carrier is exempted from liability for losses arising from certain designated causes, the burden of proving that a loss which has occurred falls within the exceptions of the contract rests upon the carrier.22 But where the loss occurs from such a cause

20. Gulf, etc. Ry. Co. v. Gatewood, 79 Tex. 89; Texas, etc. Ry. Co. v. Hawkins, (Tex. Civ. App.) 30 S. W. Rep. 1113; Texas, etc. Ry. Co. v. Klepper, 5 Tex. Ct. Rep. 533, 24 S. W. Rep. 567; Railway v. Godair Commission Co., (Tex. Civ. App.) 87 S. W. Rep. 871; North British & Mercantile Insurance Co. v. The Railroad, 40 N. Y. Supp. 1113; 9 App. Div. 4; affirmed without opinion, 158 N. Y. 726, 53 N. E. Rep. 1128; Central, etc. R. Co. v. Soper, 59 Fed. 879, 8 C. C. A. 341, 21 U. S. App. 24. Whether or not the time limited within which suit must be filed is reasonable is usually a question for the jury. Railway Co. v. Hume, 87 Tex. 211, 27 S. W. Rep. 110; Gulf, etc. Ry. Co. v. Clarke, 5 Tex. Civ. App. 547, 21 S. W. Rep. 355. If the carrier's conduct is such as to reasonably induce the shipper to believe that his claim for damages will be paid without suit, and for such reason suit is not brought

within the time stipulated, the shipper will not be precluded from the right to maintain an action after the expiration of the stipulated time. Railway Co. v. Silegman, (Tex. Civ. App.) 23 S. W. Rep. 298.

21. Express Co. v. Walker, 26 Ky. Law Rep. 1025, 83 S. W. Rep. 106.

22. See post, § 1353, where the subject is more fully treated. See also, Missouri, etc. Ry. Co. v. Mfg. Co., 79 Tex. 26, 14 S. W. Rep. 785; Ryan v. Railway Co., 65 Tex. 15; Steele v. Townsend, 37 Ala. 247; Alabama, etc. R. Co. v. Little, 71 Ala. 611; Park v. Preston, 108 N. Y. 434; Brown v. Express Co., 15 W. Va. 812; Hull v. Railway Co., 41 Minn. 510; Bonfiglio v. The Railway, 125 Mich. 476, 84 N. W. Rep. 772; Schaeffer v. The Railroad, 168 Penn. St. 209, 31 Atl. Rep. 1088, 47 Am. St. Rep. 884; Louisville, etc. R. Co. v. Bourne, 15 Ky. Law Rep. 445; Mitchell v.

that the law will not presume negligence, or where it happens from an excepted cause, as from fire, the burden of proving that the carrier was guilty of negligence and that such negligence contributed to the loss is, by the weight of authority, upon the plaintiff.23

Sec. 450. (§ 260.) Carrier cannot provide by contract against liability for negligence.-The question whether the carrier can exempt himself from liability for losses occurring from the negligence of himself or his servants or employees is one upon which the authorities differ. By the English law, as we have seen, he possesses the unlimited power to do so under the several acts in relation to carriers, and the construction which has been given them by the English courts. In this country,

The Railroad, 124 N. Car. 236, 32 S. E. Rep. 671, 44 L. R. A. 515; Parker v. The Railroad, 133 N. Car. 335, 45 S. E. Rep. 658, 63 L. R. A. 827; Johnstone v. The Railroad, 39 S. Car. 55, 17 S. E. Rep. 512; Railroad Co. v. Lawler, 40 Neb. 356, 58 N. W. Rep. 968; Kalina & Cizek v. The Railroad, 69 Kan. 172, 76 Pac. Rep. 438, citing Hutchinson on Carr; Railway Co. v Grocery Co., 55 Kan. 525, 40 Pac. Rep. 899; Normile v. Railroad Co., 41 Or. 177, 69 Pac. Rep. 928; Steamship Co. v. Burrows, 36 Fla. 121, 18 So. Rep. 349; The Guy C. Goss, 53 Fed. 826; The Beeche Dene, 55 Fed. 525, 5 C. C. A. 207, 2 U. S. App. 582; Insurance Co. v. Transportation Co., 97 Fed. 653; Argo Steamship Co. v. Seago, 101 Fed. 999, 42 C. C. A. 128; Doherr v. Houston, 128 Fed. 594, 64 C. C. A. 102; The Patria, 132 Fed. 971, 68 C. C. A. 397; Jenkins v. Railway Co., S. Car. 53 S. E. Rep. 480; McFall v. Railway Co., Mo. App. 94 S. W.

Rep. 570.

23. See post, § 1355. See also, Louisville, etc. R. Co. v. Manchester Mills, 88 Tenn. 653; Little Rock, etc. Ry. Co. v. Talbot, 39 Ark. 523; Transportation Co. v. Downer, 11 Wall. 133; Wertheimer v. Railroad Co., 17 Blatchf. 421; The Glendarroch, Johnson & Co. v. Wainwright Bros. & Co., L. R. (1894) P. 226, 63 L. J. P. 89; Railroad Co. v. Sherwood, 132 Ind. 129, 31 N. E. Rep. 781, 32 Am. St. Rep. 239, 17 L. R. A. 339, citing Hutchinson on Carr; Indianapolis, etc. Ry. Co. v. Forsythe, 4 Ind. App. 326, 29 N. E. Rep. 1138; Morse v. The Railway, 97 Me. 77, 53 Atl. Rep. 874; Van Akin v. The Railroad, 87 N. Y. Supp. 871, 92 App. Div. 23; Thyll v. The Railroad, 87 N. Y. Supp. 345, 92 App. Div. 513; The Henry B. Hyde, 90 Fed. 115, 32 C. C. A. 534, 61 U. S. App. 147; The Lennox, 90 Fed. 308; Crowell r. Union Oil Co., 107 Fed. 302, 46 C. C. A. 296; The Isaac Reed, 82 Fed. 566; The Timor, 67 Fed. 356, 14 C. C. A. 412, 35 U. S. App. 278; The Flintshire, 69 Fed. 471.