[248 U.S. 446, 447] Messrs. Henley C. Booth, of San Francisco, Cal., William R. Harr, Charles H. Bates, and C. F. R. Ogilby, all of Washington, D. C., and William F. Herrin, of San Francisco, Cal., for plaintiff in error.
Messrs. P. H. Hayes and Thomas Armstrong, Jr., both of Phoenix, Ariz., for defendant in error.
Mr. Justice McREYNOLDS delivered the opinion of the Court.
Stewart sued for damages sustained in transit by dairy cows delivered July 1, 1913, to plaintiff in error for shipment over its railroad from California to Phoenix, Arizona, under a 'live stock shipping order contract and bill of lading' signed both by himself and it, which, among other things, provided:
As one ground of defense the company relied upon non-compliance with the abovequoted provision. In reply the shipper alleged and at the trial introduced evidence tending to establish facts and circumstances as follows:
He admitted that the cattle were unloaded and received by him July 5, 1913, at Phoenix and that he made no written claim for loss or damage upon any agent of the carrier within ten days thereafter. But he denied that he could have given notice of his claim within such time or that he had waived or released it.
He alleged that on July 4, 1913, and subsequently the carrier had full knowledge of injuries sustained by the cattle; that they were unloaded into its stock-pens at Yuma July 4, 1913, and prior to reloading five died; that they remained in the stock-pens there without shelter or protection nine hours, under care of carrier's agents; that upon reloading it provided an additional car for sick and crippled cows; that at various points en route the train officials received inquiries from other railroad officials as to conditions and after arrival at Phoenix one of the crippled animals remained several days in a car; that immediately after unloading at Phoenix and daily until October 21, shipper and the railroad agents were in communication relative to damages sustained; that the nature and extent of injuries to cows which arrived at destination alive made it impossible to determine within ten days the extent of damage sustained; and that a number of cattle died many days after their arrival at Phoenix.
He further alleged that about October 21, 1913, after repeated efforts to determine the damages, shipper made [248 U.S. 446, 449] demand in writing for $1,570 and on December 15th, as soon as he was able to ascertain nature and extent of the injuries, made written demand for $2, 695; that the carrier had repeatedly waived requirement for demand within ten days by recognizing the shipper's right to recover something and attempting to settle and compromise; and that subsequent to October 21st carrier through its claim agents had twice attempted to adjust with the shipper the loss and damage sustained.
The trial court refused to direct a verdict in defendant's favor. Among other things, it said to the jury:
The Circuit Court of Appeals affirmed a judgment entered upon verdict for the shipper July 3, 1916 (233 Fed. 956, 147 C. C. A. 630), and, in the course of its opinion, said:
Considering the principles and conclusions approved by our opinions in St. Louis, I. Mt. & So. Ry. Co. v. Starbird, 243 U.S. 592 , 37 Sup. Ct. 462, and Erie R. R. Co. v. Stone, 244 U.S. 332 , 37 Sup. Ct. 633 (announced since the judgment below), and the cases therein cited, no extended discussion is necessary [248 U.S. 446, 450] to show that upon the facts here disclosed the stipulation between the parties as to notice in writing within ten days of any claim for damages was valid. And we also think those opinions make it clear that the circumstances relied upon by the shipper are inadequate to show a waiver by the carrier of written notice as required by the contract.
The trial court erred in giving to the jury the instruction quoted above; and it should have granted the carrier's request for a directed verdict.
The judgment of the court is reversed and the cause remanded for further proceedings in conformity with this opinion.
Reversed and remanded.
Mr. Justice McKENNA and Mr. Justice CLARKE dissent.