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tract, he cannot recover. No notice was introduced in evidence; neither did Crittenden show that he was unable, for any reason, to produce it, and offer to prove its contents by a copy or otherwise. These provisions of the contract are just and equitable. The company is entitled to a written notice that the shipper claims damages, so as to permit the company to have a thorough investigation made of the nature of the claim and the condition of the stock before the stock is removed from its premises, and before it is mingled with other stock, so as to render its identification difficult. Where stock is shipped under written shipping contracts which provide, among other things, that, as a condition precedent to the right of the shipper to recover damages for loss or injury to said stock, he shall give notice in writing of his claim therefor, the shipper must prove such notice to have been given before he can recover." In the case of Louisville, N. A. & C. Ry. Co. v. Widman, 10 Ind. App. 92, 37 N. E. 554, it is said by the Indiana court: "In an action for injuries to a mare shipped under a bill of lading which provides that the carrier shall not be liable for loss or damage unless notified within 30 days, a complaint containing no allegation of notice or performance by the plaintiff of all conditions on his part is demurrable." In the case of Texas & Pac. R. R. Co. v. Hamm, 2 Willson's Civ. Cas. Ct. App. § 496, the court say: "In an action against a railroad company for loss of cattle shipped over its line, the contracts of shipment offered in evidence contained the following clause: "That, for the consideration aforesaid, said second party further expressly agrees that, as a condition precedent to his right to any damages for any loss or injury to said stock during the transportation thereof, or previous to loading thereof for shipment, he will give notice in writing, verified by affidavit, of his claim therefor to some general officer of said first party or to the nearest station agent, before said stock is removed from the point of shipment or from the place of destination, and before the same shall have been removed, *** and that a failure to fully comply with the terms of this clause shall be a complete bar to the recovery of any and all such claims.' Held, that a notice of loss in writing, verified by affidavit, was a condition precedent to plaintiff's right of action, and not only should have been alleged, but must have been proved, to entitle plaintiff to recover." We take it to be the true rule of pleading that, where there is a condition precedent to be observed before an action can be maintained or a cause of action exist, the plaintiff must show that the condition has been performed, either actually or substantially, or that he has been in some way released from that condition by the act of the opposite party, and that, in the absence of such averment, the petition does not state

facts sufficient to constitute a cause of ac-' tion. This doctrine seems to be supported by the case of Express Co. v. Harris, 51 Ind.' 127; Insurance Co. v. Duke, 43 Ind. 318; and Railway Co. v. Morris, 16 Am. & Eng. R. Cas. 259. This also seems to be sustained by a provision of our own statute. Section 4326, Wilson's Rev. & Ann. St. 1903, reads as follows: "In pleading the performance of conditions precedent in a contract, it shall be sufficient to state that the party duly performed all the conditions on his part, and, if such allegations be controverted, the party pleading must establish on the trial the facts showing such performance." As we regard this provision of the bill of lading and the shipping contract as a condition precedent necessary to be performed before the maintaining of this cause of action, we think it was incumbent on the part of the plaintiff to plead a performance of that condition precedent, or a waiver of the same on the' part of the defendant, and, he having failed to do so, either in his petition, or reply, we think the pleading did not state a cause of action in his favor, and it was error for the court to overrule the motion for judgment on the pleadings in favor of the defendant.

The next assignment of error urged by plaintiff in error is that the court erred in overruling the demurrer of plaintiff in error to the evidence introduced by defendant in The main ground on which this demurrer should have been sustained was the failure of the defendant in error to introduce any proof whatever that the written notice required by the contract executed by him was given in accordance with the terms thereof. The record shows that the defendant in error admitted that no written notice was in fact given. If the action of the court in overruling this demurrer can be sustained. it must be on one of two grounds: First. that the facts and circumstances as developed in evidence show that the plaintiff substantially complied with the requirements of this contract. The record discloses that when the horses in question reached their destination, that that some conversation took place between the agent of the company, and the person to whom the horses were consigned, relative to their damaged condition. The testimony of the consignee is that he informed the agent verbally that the horses were damaged, and that he would not accept the same until he heard from the consignor; that the agent of the company looked at the horses, and ordered them taken out of the car and fed and watered, the agent unlocking the car for that purpose, and that the horses were appraised by three appraisers who were selected by the agent of the company. The testimony of one of the appraisers is that they appraised the horses under the direction of the agent of the company, but that the agent was not present when said appraisement was made. The testimony of the other

appraiser is that the horses were appraised under the direction, and at the instance and request of Phillips, the consignee, and that while the agent of the company was present he took no part in the appraisement. The record does not show that any notice in writing was given to the company within 30 hours from the time the stock arrived at their destination, or at any other time prior to the commencement of this suit. The record further shows that no claim for damage was ever filed with the company, verbal or otherwise. The testimony of Van Osdall, who was with Phillips, the consignee, at the time the horses were received by him, is that he and Phillips were both strangers there, and that the three appraisers were pointed out to them by the agent Hill as competent men to make the appraisement. He testifies that no amount of damage was named by him in talking with the agent. Now the question is, was this action on the part of the consignee Phillips, a substantial compliance with the terms of the bill of lading and the shipping contract, which expressly provided that, as a condition precedent to any right to recovery, they should give notice in writing of the claim. Was there action such as would reasonably apprise the agent of the company at Hoxie. Ark., that they were making a claim against the company for damages? The only claim they made to him was that they would not receive the horses in their damaged condition until such time as they heard from Phillips, the consignor. No claim was filed for any specific amount of damages, and, as far as the record shows, no request was made of the agent to notify the company of any claim for damages, and no claim was made that the damaged condition of the horses was due to any neglect or wrongful act of the company. It might reasonably be said that these horses were damaged; and from the fact that no claim for damage was filed with the company, that the company had a right to presume that the horses were damaged before they were taken for shipment by the company, or were damaged in some way for which the company was not responsible. But even granting, for the sake of argument, that a verbal claim was made, and that evidence on such verbal claim was considered by the court, notwithstanding the silence of the pleadings on that point, we think that such a notice, under the circumstances as shown in the record in this case would be inadequate to relieve the defendant in error from the terms of the contract. When the defendant in error signed his contract and shipped his horses under it, he agreed to abide by its provisions. In the contract stipulating that written notice of the loss or damage must be made in a certain time, it does not contemplate or authorize the giving of any other kind of notice, or in any manner except in the manner provided for in the contract. There is no claim made in this case that the time in which

notice was to be given was unreasonable, or that there was no agent at the destination. No reason is assigned why the notice required by the shipping contract and bill of lading could not have been given in the way and within the time expressly provided for in the contract.

Now the only other ground on which the action of the court in overruling this demurrer can be sustained is that the acts of the agent of the company at the point of destination would amount to a waiver of this provision of the contract. In determining this question, we must bear in mind the language of the contract. On the face of this contract, in large type, larger than the type in which the main body of the contract is printed, and so placed upon the contract as to be conspicuous, are these words: "No agent of this company has any authority to waive, modify, or amend, any of the provisions of this contract." Now we think that this provision in the contract, placed in such a conspicuous manner on the face of the contract, that the consignor with the exercise of any sort or kind of diligence must have been made aware of its existence; and we do not think that the acts of the agent of the company disclosed by this record are such as to have waived this provision of the contract so as to bind the railroad company. The Supreme Court of this territory in a recent decision, has clearly and expressly passed upon this question of waiver. It is true that the case then before the Supreme Court was the case of an insurance company, but we think there is no difference in principle between that case and the case at bar. In the case of the Deming Investment Company v. Shawnee Fire Insurance Company (decided in September, 1905) 83 Pac. 918, this court says: "Where a waiver of the stipulations and conditions contained in a policy of fire insurance is relied upon as the act and conduct of an agent of the insurance company, it must be shown that the agent had express authority from the company to make the waiver, or that the company subsequently, with knowledge of the facts, ratified the unauthorized action of the agent. An agent for a fire insurance company, whose powers are strictly defined and limited by the express terms of the contract of insurance cannot act so as to bind his company beyond the scope of his authority. A contract in writing, if its terms are free from doubt and ambiguity, must be permitted to speak for itself, and cannot by the courts, at the instance of one of the parties, be altered or contracted by parol evidence, unless in case of fraud or mutual mistake of facts, and this principle is applicable to contracts of insurance." If the rule were laid down that station agents of a railroad company, without express authority, could modify or change the plain, unambiguous terms of a written contract entered into with the company, and in variance with the express stipulations and

conditions of the contract, the usefulness of such contracts and the necessity of them would be absolutely at an end. Such a doctrine would deprive the defendant company of the benefit of a contract which the courts have repeatedly declared to be reasonable, just, and valid. In the case of Sprague v. Missouri Pac. Ry. Co., reported in 8 Pac. 465, the Kansas Supreme Court say: "In an agreement between a railway company and a shipper for the transportation of horses over the railway, there was a stipulation which provided that, as a condition precedent to his right to recover damages for any loss or injury to the horses while in transit, the shipper would give notice in writing of his claim therefor to some officer of the said railway company, or its nearest station agent, before the horses were removed from the place of destination, or from the place of delivery to the shipper, and before such horses were mingled with other stock. Held, that the agreement is reasonable, and, when fairly made, is binding upon the parties thereto." This case was a case very similar in its facts to the case at bar. It was a case brought in the district court of Cloud county, against the Missouri Pacific Railway Company, alleging in substance that the defendant was a common carrier, and that on or about the second day of March, 1883, for a valuable consideration, the railway company undertook and agreed with the plaintiff to safely carry over its road from Atchison to Concordia certain stock, goods, wares, and merchandise; that he delivered the property mentioned for shipment, in good condition, at Atchison, but the defendant negligently and carelessly managed the car upon which the property was shipped, and by reason of such negligence, and without any fault on the part of the plaintiff, four of the horses so shipped by the plaintiff were thrown down, bruised, and injured, so that one of them died, and the others were more or less disabled, to the damage of plaintiff in the sum of $500. The railway company denied the allegations of negligence, and the terms of the contract as stated by plaintiff, and alleged that the property had been shipped in accordance with the terms of a special agreement entered into between the plaintiff and the defendant, wherein it was stated that the company transported live stock only in accordance with certain rules and regulations, which were mentioned; and that, in consideration that the defendant company would transport for the said plaintiff the said property at the rate of $30 per car; the same being a special rate lower than the regular rate mentioned in the freight tariff of the railway company, and other considerations, the plaintiff agreed to release the defendant from some of the responsibility and risks imposed by law upon the railway company when acting as a common carrier. The contract is set out at length in the answer, and it provided that the plaintiff should load

and unload his stock at his own risk, and feed, water, and attend to the same at his own expense. He was also to accompany and care for the stock while it was being transported over the defendant's road, and for that purpose the railway company was to furnish the plaintiff free transportation over its road for one person from the point of shipment to the destination. Among the stipulations of the contract is the following: "And for the consideration before tioned, said party of the second part further agrees that, as a condition precedent to his right to recover any damages for any loss or injury to said stock, he will give notice in writing of his claim therefor, to some officer of said party of the first part, or its nearest station agent, before said stock is removed from place of destination above mentioned, or from the place of the delivery of the same to the said party of the second part, and before such stock is mingled with other stock."

The reply of the plaintiff was a general denial, not verified. Upon the trial, it was expressly admitted that the special contract set up in defendant's answer was signed and executed by the duly authorized agents of the parties; and it was further admitted that if the plaintiff is entitled to recover under the contract for the injuries alleged by the plaintiff, the amount of such recovery should be $300. Testimony was then offered by the plaintiff, to the effect that the horses were in good condition when delivered to the railway company at Atchison, Kan. His brother was given a free pass over the road, and accompanied the train upon which the horses were shipped for the purpose of caring for the stock while it was being transported over the defendant's road. At several points on the route, he inspected them and found them to be still in good condition. At the station named "Palmer" some distance east of Concordia, the horses were again examined by the plaintiff's brother, and were then all right; and that after returning to the caboose, and before leaving that station he felt several jars, but was unable to state what occasioned them, or whether the horses were injured thereby. Upon arriving at Clifton, the next station, he again examined the horses and found that some of them were lying down and apparently injured. He then demanded of the conductor that the car in which the horses were shipped should be backed up to the stockyards in order that the horses might be removed from the car. This was done, when the horses were unloaded and found to be considerably bruised. He then refused to reload the horses upon the car, took possession of them, and caused them to be taken across the country to the plaintiff's farm which was not far distant. The plaintiff further testified that when the car reached Concordia, he paid the price agreed upon for the transportation of the same, but that no notice had ever been given

to the conductor of that train. or to any officer or agent of the railway company, prior to the commencement of this action, that he claimed any damages for injury to his stock; that he knew the condition of the horses, and the extent of the injury to them, before they were taken to the farm, and yet he had not given any notice of any claim therefor.

When the plaintiff closed his testimony, the railway company interposed a demurrer to the evidence, which the court, after consideration, sustained. Upon this ruling the plaintiff raises and discusses several questions here; but as one of them disposes of the case. the others require no attention. If the contract of the parties is to be upheld, by which it was agreed that before the plaintiff could recover damages for any injury to his horses, he must give notice in writing of his claim therefor to some officer of the railway company, or to its nearest station agent, before the horses were removed from the place of destination, or from the place of the delivery of the same to the plaintiff, and before they were mingled with other stock, then the demurrer to the evidence was rightly sustained, and the judgment should be affirmed. The plaintiff contends that the agreement is not binding upon him, because it is not one permitted by the laws to be made, and for the further reason that it is without consideration. As a general rule, common carriers are held liable as insurers, and are absolutely responsible for any loss to the property intrusted to them, unless such loss is occasioned by the act of God or the public enemy. It is now a well-established rule of law that this liability may be limited to a certain extent; but, to accomplish this, it must clearly appear that the shipper understood and assented to the limitation. Common carriers are not permitted, by agreement or otherwise, to exempt themselves from liability for loss occasioned by their negligence or misconduct. Such limitations are held to be against the policy of the law, and would be void. But it is no longer questioned that they may, by special agreement, stipulate for exemption from the extreme liability imposed by the common law, provided that such stipulations are just and reasonable, and do not contravene any law or a sound public policy. That the agreement in question was executed by the plaintiff is admitted, not only by the pleadings, but it was expressly agreed to by him on the trial. There is no pretense that any deceit or fraud was practiced upon him by the railway company, in obtaining his assent to the agreement. So far as appears in the testimony, it was fairly and understandingly entered into and executed. His authorized agent who accompanied the horses, and who had them in charge while passing over defendant's road, knew of this provision of the contract, and was acquainted with the condition of the stock before they were taken from the pos

session of the railway company. And the plaintiff, with full knowledge of this requirement, paid the freight charges agreed upon after the injury had been done without complaint, and without claiming any damages therefor, and gave no notice nor did he make any claim for damages prior to the commencement of this action. The stipulation requiring notice of any claim for damages to be given cannot be regarded as an attempt to exonerate the company from negligence or from the negligence or misfeasance of any of its servants. The company concede that such an agreement would be ineffectual for that purpose. It is to be regarded rather as a regulation for the protection of the company from fraud and imposition in the adjudgment and payment of claims for damages by giving the company a reasonable opportunity to ascertain the nature of the damage and its cause. After the property has been taken from their possession, and mingled with other property of a like kind, the difficulty of inquiring into the circumstances and character of the injury would be very greatly increased. That such a provision does not contravene public policy, and that it is just and reasonable. has been expressly adjudicated by this court.

Now a comparison of the facts, or at least many of the facts in the case under consideration by the Kansas court. are similar to the facts in this case. In this case, as in that, there is no evidence of any deceit or fraud being practiced on the plaintiff by the railroad company in obtaining his assent to the agreement. That the consideration of the agreement was a reduced rate of freight. and that such agreement was entered into by the plaintiff with a full understanding that he was making an agreement to ship this stock under a contract that limited the liability of the company in case of loss or . injury, and that by reason of that liability he was securing a reduced rate. This is apparent when we read the contract; for, on the face of the contract is the following language: "This application is an election on my part to avail myself of a reduced rate. by making this shipment under the following contract, limiting the liability of such carrier instead of shipping the same at a higher rate without such limitations." The case of Goggin v. Kansas Pac. Ry. Co.. reported in 12 Kan. 416, was an action brought to that court to review the decision of the district court sustaining a demurrer to the reply. The plaintiff in error sued defendant in error, alleging that he had sustained damages through the carelessness and negligence of the defendant in the transportation of cattle over its road. The company in its answer sets up a written contract of shipment, signed by both parties, by which the cattle were to be carried from Ogden to the state line, at special rates per car load, to be accompanied by the owner, and fed, watered, and cared for by him, in consideration of the

special reduced rates. The contract stipulates that the company shall not be liable for loss by animals injuring themselves, or each other, or by jumping from the cars, delay of trains, or other damage, "except such as may result from the actual negligence of the company, or its agents." There is also a stipulation that "no claim for loss or damage on live stock will be allowed, unless the same is made in writing before or at the time the stock is unloaded." (It will be noticed that this contract is almost identical with the one in the case at bar). The reply admits the making of the contract set out in the answer, but alleges that the plaintiff signed the same under protest after the cattle were in the car; that plaintiff also verbally notified the servants of the company of the damage before the cattle were unloaded from the cars; and immediately after giving verbal notice, sought for writing materials to make out a written notice to serve on the agents of the company, but before he was able to find the materials, and write the notice, the cattle were unloaded, so that no notice was given. The reply controverts no statement in the answer. A demurrer was sustained. Then the court say: "If the defense set up in the answer is a good one, then the reply does not avoid it. It is no excuse for not performing a contract that it was signed under protest. The plaintiff had his option to have his cattle transported at the usual rates, and hold the company responsible as a common carrier, or at special rates on lower terms, and with less responsibility on the part of the carrier. He chose the latter, and cannot now avoid his contract by saying he signed under protest. Neither is the reason given for not giving the written notice sufficient. If the contract stipulation as to written notice is valid, then the inability to procure. writing materials at the instant of unloading of the cattle is no excuse for not giving the notice for more than a year afterwards. If the stipulation is not valid, then no notice was necessary. This presents the real question in the case. The stipulation as to notice contravenes no statute. The parties were competent to make the contract and did make it, and it must be held good unless it is contrary to public policy. How far a common carrier may limit his responsibility by special contract is not involved in this case, for the pleadings do not raise that issue. It is undoubtedly settled that the common carrier may relieve himself from the strict liability imposed on him by the common law, by a special contract; but it seems that he cannot relieve himself from liability for his own negligence. The contract pleaded does not pretend to relieve the defendant for the consequences of his own negligence. It only stipulates that the shipper shall on his part perform certain duties. The reasons for this clause are set out in the answer, as follows: The defendant was engaged in transporting great numbers of

cattle over its road, which were shipped further to market, or so commingled with other stock that it would be impossible to distinguish one car load from another, unless attention was called to them immediately; and the object of the notice was to relieve the company from false and fictitious claims, by having an inspection before they were removed or mingled with other cattle, and proper damages ascertained and allowedof which reasons the plaintiff had full knowledge, and still chose to ship at reduced special rates. The reasons are cogent, and we are unable to see how it contravenes public policy that a special contract at reduced rates should stipulate that reasonable notice of injury should be given. We are unable to perceive any stronger objection to such a contract than exists in the case of any other insurer of goods to which the carrier's obligation is analogous, and which depends altogether upon the contract of the parties. New Jersey Steam Nav. Co. v. Merchants Bank, 6 How. 382, 12 L. Ed. 465. But such a contract should be reasonable, and not such as to be a snare or fraud upon the public. What is a reasonable time must depend on many circumstances. In this case the plaintiff accompanied the cattle, feeding and superintending them; and, by his reply, admits that he knew of the injury at the time of the unloading, and could have given the notice immediately had he chosen to do so. Unless the notice was given immediately, it would be of no value to the defendant. Under these circumstances, we cannot hold that the time when the notice was to be given was unreasonable. Of course, it is not understood by the phrase, 'before or at the time the stock is unloaded' that it must be the identical moment, but so immediately that the object sought by the notice can be attained. Now would such a notice be reasonable in the case of an ordinary shipper who did not accompany and superintend his stock, nor would it probably prevent a recovery for injuries sustained which could not readily be seen and actually should not be discovered till the time for giving the notice had expired. Yet, in such a case, good faith would require notice so soon as the injury was known. So far as we have been able to see, the authorities are in accordance with the views presented."

Now the strong resemblance between this case and the case at bar will be noticed. The contracts were almost identical. The liability is the same. The damage was known to the consignee who was the agent of the consignor at the time the stock arrived at its destination. The claim is made in the case at bar that verbal notice was given. The record shows that no other or different notice was ever given the company prior to the commencement of this suit, and it seems to us that it falls fairly within the case under consideration by the Kansas Supreme Court. And that court expressly says that the giving

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