(after stating the facts). 1. Conceding, without deciding, that the amendments tendered contained subject-matter germane to the cause of action set up in the original complaint, the court nevertheless did not abuse its discretion in refusing to allow these amendments to be made at the time when they were offered. Appellants did not offer to amend the complaint until- several days after the cause of action had been dismissed.
The court, in sustaining the demurrer and dismissing the complaint for the reasons set forth in the sixth and seventh grounds of the demurrer thereto, held that there was no allegation of a compliance with the terms of the written contract set up in the complaint. Having so decided, the court did not err in refusing to allow an amendment which, in the court’s view of the complaint, would have rendered the same inconsistent and contradictory.
The only question we now decide with reference to these amendments is that the court did not abuse its discretion in refusing to allow them at the time they were offered. As the case must be reversed for reasons hereinafter stated, if counsel are so advised, they may offer and obtain a ruling of the lower court on these amendments at the next hearing.
2. The question presented by the court’s ruling on the sixth and seventh grounds of the demurrer is whether or not appellants allege in their complaint facts sufficient to show a compliance on their part with the contract of shipment, as set up in their complaint, which provides that “in case of damage to said fruit that the consignee thereof shall give notice to the delivering carrier of an intention to claim damages therefor within thirty-six hours after notice of the arrival of the freight at the place of delivery.”
The appellants did not allege in their complaint that they complied with this provision of the contract by giving the written notice specified therein, but they allege that the provision requiring -written notice was unreasonable, and set out facts which they say show it to be an unreasonable provision. The facts as alleged must be taken on demurrer as uncontroverted. It therefore becomes a question of law as to whether these facts are sufficient to show that the provision is or is not unreasonable, and not an issue to be submitted to the jury under the provisions of the act approved April 30, 1907, requiring “the reasonableness or unreasonableness of such rules and regulations to be determined by a jury.” That provision can have no application in cases where the facts are undisputed upon which the issue of reasonableness or unreasonableness is predicated. See Kansas & Arkansas Valley Ry. Co. v. Ayers, 63 Ark. 332.
Without repeating here the facts alleged in the complaint to show that the provision for written notice was unreasonable, it is sufficient to say that in our opinion these facts are not sufficient to show that the provision was unreasonable. The fact that the owners of the fruit shipped lived at Greenwood, and the destination of the fruit was at St. Joseph and other distant points out of the State where the goods were consigned, would not show that the provision for notice was unreasonable, nor would the fact that the consignee was at Van Burén, Arkansas. The fact that the consignor and the consignee depended upon commission merchants at points of destination to receive the shipments for them, and that these commission merchants had no knowledge of the condition of the peaches when loaded, and no knowledge that they had been damaged by the carrier in transit would not be sufficient. If the consignor or the consignee could not themselves be at the points of destination so as to obtain the necessary knowledge of the condition of the peaches when delivered to enable them to give notice of an intention to claim damages therefor in case of damage or loss, they would have to have agents at such points of consignment, and could give such notice within the time prescribed. Arkadelphia Milling Co. v. Smoker Mdse. Co., 100 Ark. 37; Chicago, R. I. & P. Ry. Co. v. Neusch, 99 Ark. 568; St. Louis, I. M. & S. Ry. Co. v. Townes, 93 Ark. 430.
It would be the consignor’s duty to have either the consignee himself at the point of destination or to have some agent there representing him to whom the delivery could be made, and who could ascertain the condition of the shipment when it arrived at its destination, and who could give the notice required by the contract. Thirty-six hours after notice of arrival for notice of a claim for damages is not an unreasonably short time for the consignee to receive all the information necessary as to the damage he has sustained, if any, and to give written notice of an intention to claim such damage to the delivering carrier.
Mr. Hutchinson, in his work on Carriers, (3 ed.), § 442, says: “The object of conditions of this character, it is said, is to enable the carrier, while the occurrence is recent, to better inform himself of what the actual facts occasioning the loss or injury were, and thus protect himself against claims which might be made upon him after such lapse of time as to frequently make it difficult, if not impossible, for him to ascertain the truth. It is just, therefore, that the owner, when the loss or injury has occurred, should be required, as a condition precedent to enforcing the carrier’s liability, to give notice of his claim according to the reasonable conditions of the contract.”
We quoted the above from Mr. Hutchinson in the case of St. Louis & San Francisco Rd. Co. v. Keller, 90 Ark. 308. In the latter case the contract for notice provided that “no carrier shall be responsible for loss or damage of any of the freight shipped unless it is proved to have occurred during the time of its transit over the particular carrier’s line, and of this notice must be given within thirty hours after the arrival of the same at destination. No carrier shall be responsible for loss or damage to property unless notice of such loss or damage is given to the delivering carrier within thirty hours after delivery.”
The court, in discussing this provision, made no distinction between the provision requiring notice for loss or damage and one requiring notice of an intention to claim damage, but treated such provision as meaning the same thing, as shown by the authorities cited and the language of the opinion. In the above case it was held that such a provision in the contract is “a condition of recovery and not an exemption from liability.” “Its effect,” says Judge Frauenthal, speaking for the court, “is to require the one who has the peculiar knowledge to inform the other who has not that knowledge to seek the facts while they exist, so that the facts may be obtained and presented by both sides; its effect is therefore to uphold and enforce rights if they are founded on truth, and not to limit or defeat those rights.” And, continuing, he says, “This court has uniformly upheld and enforced similar provisions in contracts of common carriers where the same, under the circumstances of the case, were reasonable and the damages occurred during the actual transportation of the goods;” citing many cases of this court where the provision of the contract required “notice of intention to claim damages” to be given in writing, etc. . .
So, under our decisions, it makes no difference whether the provision of the contract requires written notice “of loss or damage” to be given, or whether the language of the contract provides for written notice of an “intention to claim” for loss or damage. Under our decisions, the purport of these provisions is the same, have the same legal effect, and are not limitations upon or exemptions from liability of the carrier, but are only conditions precedent to recovery. St. Louis, I. M. & S. Ry. Co. v. Furlow, 89 Ark. 404; St. Louis, I. M. & S. Ry. Co. v. Keller, supra.
It is alleged, in the concluding portion of the amendment to the complaint, that “the delivering carrier examined said peaches upon arrival and knew for itself the condition of the consignment on arrival. That the defendant, the general agent for fruit shipments, C. F. Carstarphen, and its local agent at Greenwood, Ark., L. W. Rhodes, knew all of the foregoing material matters.”
In Kansas & Arkansas Valley Railway Co. v. Ayers, supra, there was a shipment of cattle under a contract which contained a provision for notice similar to the one at bar. The proof showed that the notice in writing was not given. The agent at the depot where the cattle were delivered saw the cattle and knew that some of them were dead, and that they were in a bad shape generally, but he did not know and was not informed that any claim would be made for damages. The court, in passing upon the question as to whether written notice of damage for the dead cattle was required, said: “The cattle that were dead in the car before the stock was removed and mingled with other cattle were not within this provision of the contract as to notice. The object of requiring the notice by the shipper of his intention to claim damages to be given before the cattle were removed and mingled with other cattle was to afford the railway company a fair opportunity to examine the cattle before they were removed and mingled with other cattle. As to those that were dead, the company had all the opportunity it could have had to examine them.”
Under the doctrine of the above case, it was not necessary as a condition of recovery that the appellants.give appellee written notice of an intention to claim for damages to the peaches if the delivering carrier, through its agents, examined and knew the condition of the peaches while in its possession after their arrival at their destination. The complaint alleged such knowledge on the part of the carrier, and hence, in this respect, stated facts sufficient to show that the written notice was unnecessary. Where the facts stated show that the delivering carrier has actual knowledge of all the conditions that a written notice could give it, then written notice is not required, and a provision requiring it under such circumstances would be unreasonable.
Appellee relies upon the recent case of Chicago, Rock Island & Pacific R. Co. v. Williams, 101 Ark. 436, to sustain its contention as to the alleged failure of the appellee to comply with provisions of the contract as to notice. But appellant fails to observe the. distinction between the Williams case and the cases of Kansas & Arkansas Valley Ry. Co. v. Ayers and St. Louis, I. M. & S. Ry. Co. v. Cumbie, 101 Ark. 172. The present case is controlled by the rule in the latter cases. In the Williams case the provision requires that the claim for the loss, damage or delay should be made within four months. The language of the contract in that case contemplated the presentation of a formal claim for damages, specifying what was lost or damaged and the amount thereof, etc. But here, as we construe the language of the contract, it only requires that the consignee report that he has sustained loss or damage and his intention to claim therefor; but it does not contemplate the presentation within the short time of thirty-six hours of the formal claim, as required in Chicago, R. I. & P. Ry. Co. v. Williams, supra. If such were the case, the provision as to time might be considered unreasonable. Whereas, as the provision is only for notice that damage has resulted, and requiring that the consignee report that fact, it is not unreasonable. The distinction between the cases is pointed out by the Chief Justice in Chicago, R. I. & P. Ry. Co. v. Williams, as follows:
“In the present case the requirement is not merely for notice to the carrier that damage has resulted, but it is that the claim for the loss, damage or delay shall be presented within the stipulated time. The purpose of the requirement is to give the carrier timely opportunity to investigate the claim for damage after the same has been presented. This involves the right to investigate the contents of lost packages, the value of lost articles, as well as the facts bearing upon the question of its liability. The distinction is clearly pointed out by Judge Riddick in the opinion of the court in Western Union Tel. Co. v. Moxley, 80 Ark. 554, and we are of the opinion that that decision is conclusive of the present case.”
The court therefore erred in sustaining the demurrer, and for this error the judgment is reversed, and the cause is remanded with directions to overrule the demurrer and for further proceedings.