Bliss v. Southern Pacific Co.

WORKS, J.,

pro

tem.

This is an action for the recovery of damages alleged to have been suffered by plaintiff through injuries to certain of his cattle while in transit over the railroad of defendant, the point from which and the point to which the shipment was made both being within the state. Judgment was awarded to the plaintiff and the defendant appeals. The appeal is upon the judgment-roll and there is no bill of exceptions.

The findings of fact show that the cattle were shipped under a written agreement between the parties and that it contained the following provision, which we have liberally shortened by ellipses: “Second party . . . agrees that in case any loss or damage shall have been sustained . . . demand or claim for such loss or damage will be made ... in writing, within ten days after unloading; . . . and that in event of failure so to do, all claims for loss or damage . . . are hereby expressly waived, released and made void, and it is . . . agreed by second party that the amount to be by him claimed . . . shall be adjusted on basis of value at time and place of shipment, not exceeding the declared value as hereinbefore set forth, . . . and in no event is there to be any recovery . . . for any loss of or damage to said livestock ... in excess of the declared value hereinbefore set forth.” It is also found that the respondent made no such written claim or demand within the time limited; but it is further found, in effect, that within forty-eight hours after unloading the cattle, the respondent telephoned an agent of the appellant that they were damaged and then made demand to be compensated for the damage, and stated that he intended to

[538]

slaughter the cattle and that he would, after killing them, send a claim for damage; that the agent said, “All right,” stated that he would send one of the appellant’s claim inspectors to be present at the time of the slaughtering, to ascertain the amount of the respondent’s damage; that the inspector did appear for that purpose and then requested the respondent to so handle the cattle that the least loss would result to the respondent; that it was then and there agreed between the inspector and the respondent that, by reason of the damage suffered by them, the cattle were then unfit for slaughter, and that if they were slaughtered immediately an increased loss to the respondent would result; that the inspector requested of the respondent that the cattle be allowed to stand in the respondent’s stockyard until such times as, in the judgment of the respondent, the least loss to him would be occasioned; that the respondent assented to the request and used just, fair, and reasonable discretion in determining the time the cattle should so stand, and did not complete their slaughter until the closing time of the respondent’s plant on the afternoon of the tenth day after the unloading of the cattle from the appellant’s train; that, ■ prior to the making of the agreement under which the damaged cattle were shipped, the parties had frequently executed similar agreements, containing the language above quoted from the agreement now in question; that the respondent had suffered damage to cattle shipped under such agreements; that in each and every instance of such loss the appellant required the respondent, when presenting his written claim for damages, to state his actual loss, and to ascertain the amount thereof by deducting from the local market value of the cattle when slaughtered, if they were in an undamaged condition, their local market value as damaged; that respondent did so, and in many instances he was unable to ascertain the difference in market value until after, and did not present his written claim for damage until after, ten days from the time of unloading; that appellant did, notwithstanding the delay in presenting written claim for damage, make equitable settlements of respondent’s claims; that appellant has repeatedly demanded that respondent make all his claims for losses upon the above-mentioned basis, and has notified respondent that unless all claims are so presented appellant will not pay them; that, in the present case, it was impossible