This suit was brought under section 2317 et seq. of the Civil Code, wherein. it is provided that “ When any freight that has been shipped, to be conveyed by two or more common carriers to its destination, where under'the contract of shipment or by law the responsibility of each or either shall cease upon delivery to the next ‘in good order/ has been lost, damaged or destroyed, it shall be the duty of the. initial- or any connecting carrier, upon application by the shipper, consignee, or their assigns, within thirty days after application, to trace said freight and inform said applicant, in writing, when, where, how, and by which carrier said freight was lost, damaged or destroyed, and the names of the parties and their official position, if any, by whom the truth of facts set out in said information can be established.” And §2318: “If the carrier to which application is made shall fail to trace said freight and give said information, in writing, within the time prescribed, then said carrier shall be liable for the value of the freight lost, damaged or destroyed, in the same manner and to the same extent as if said loss, damage or destruction occurred on its line.” The record shows that by the contract of shipment the responsibility of each carrier was to “cease upon delivery to the next ‘in good order/ ” and that the goods were damaged in an admitted amount by the fault of one of the carriers other than the defendant. The notice or application was to “trace and show delivery”; and further adds: “Consignee claims this car never arrived ”; and to it no response was ever made by the railway company.
This application and the company’s failure to comply therewith were not, in our opinion, sufficient to entitle the applicants to recover of the company, by virtue of the provisions of the code sections under which this action was brought, for injury done to the goods in the course of their transportation by *633the negligence of an intermediate carrier; it appearing that the goods were in fact delivered to the consignee prior to the service of the notice.
The shippers had, under their contract, no right of action against the initial carrier for damage to the goods occurring on the line and by reason of the negligence of an intermediate carrier, except such as they may have derived from sections 2317 et seq. of the Civil Code; and in order to avail themselves of the rights therein granted, it was necessary that they should comply with certain conditions. While by these sections it is made the duty of the railway company, “upon application,” to trace freight and give information as to its loss, damage or destruction, we think that this duty is restricted and controlled by the nature of the application. It is not intended that an application to trace freight as lost shall bind the company to give information as to its damage. Had the freight concerned in this litigation been lost, the notice given would have been sufficient to impose upon the company the duty of tracing it and giving the information desired, and a failure to do so would have entitled the applicants to bring this action. Had the application been to trace the freight as damaged, then under the facts of the present case this action would have been well founded. But as matter of fact the application made in the present case was to trace the freight as lost; and such application we think insufficient to put the carrier on notice that the freight had been damaged only, or to bind the carrier to do more after it had traced the freight to the hands of the consignee. Where freight is claimed to have been damaged, application should be made to the carrier to trade it as damaged and to give the desired information as to such damage; and no such application having been here made, the court erred in finding against the railway company. The code sections relied upon do not, by either their express language or by necessary implication therefrom, require such a finding in this case; and further than so required, we can not hold the former rights of the carrier to be by these sections' .abrogated.'
Judgment reversed.
All the Justices concurring.