(dissenting). The action is one against the defendant for conversion of certain ordinary live stock intrusted to it for shipment to ■a company at Chicago. The facts are quite fully stated in the majority opinion, and need not be restated here.
The shipment was made under a particular contract. The complaint, as well as the answer, pleads a contract. The contract offered in evidence is the contract upon which the shipment was made. It is the one relied upon by the plaintiff as well as the defendant.
The rights of the parties were fixed by the written contract and by. the Commerce Act. One of the provisions of the written contract, relied upon by defendants to defeat recovery, provides:
“As a condition precedent to the shipper’s right to recover any damages for delay in transit, or for loss' or injury to any of thq stock, the shipper must give notice in writing of his claim therefor, to some officer or station agent of the company, within ninety days after delivery •of such stock at destination.”
Section 8604a, U. S. Comp. Stat. provides “that it shall be unlawful for any such common carrier to provide, by rule, contract, regulation, or otherwise, a shorter period for giving notice of claims, than ninety days, and for the filing of claims, for a shorter period than four months, and for the institution of suits, than two years; provided, however, that, if the loss, damage, or injury complained of was due to delay or damage, while being loaded or unloaded, or damaged in transit,' by carelessness or negligence, then, no notice of claim, nor filing of claim, shall be required as a condition precedent to recovery.”
*545It is conceded that this is an interstate shipment, and that the whole transaction was interstate commerce, and one controlled by the acts of Congress, as far as they have application thereto. From this, it must necessarily follow that the construction of the bill of lading is a Federal question.
In this case, there was no notice of claim of loss or damage, or of failure to deliver,- or of misdelivery, given the defendant, as required by the bill of lading or contract, between the parties, nor is there any proof that a claim was filed therefor within four months.
The proof of notice required to be given within ninety days is, as we view the matter, a condition precedent, which the plaintiff must allege and prove, before he may maintain an action to recover for the damages alleged to have been sustained by him. That Avas á condition agreed to by him in the contract, and it was one authorized by the law under consideration. It was a term of the contract, which could not be Ayaived either by him or the defendant; and one which could not be ignored by either.
The responsibility of carrier is that fixed by the agreement made under the authorized and published tariffs, and under the regulations and requirements in § 8604a, and Commerce Luavs amendatory thereof.
This must be true, or otherwise opportunity would exist for discrimination, one of the abuses intended to be corrected.. This is virtually the conclusion which is reached by the Supreme Court of the United States in the case of Georgia F. & A. R. Co. v. Blish Mill. Co. 241 U. S, 197, 60 L. ed. 952, 36 Sup. Ct. Rep. 541.
In that case the court, speaking through Justice Hughes, discussing the requirement of notice of claim, said: “It is not to be doubted that if, in the case of an interstate shipment, under a through bill of lading, a terminal carrier makes a misdelivery, the initial carrier is liable; and when it inserts in its bill of lading a provision requiring reasonable notice of claims “in case of failure to make delivery,” a fair meaning of the stipulation is that it includes all cases of such failure, as well those due to misdelivery as those due to the loss of the goods.”
And the court, further, there said:
“The parties could not waive the terms of the contract, under which the shipment Avas made pursuant to the Federal act; nor could the car*546rier, by its conduct, give a shipper the right to ignore these terms, which were applicable to that conduct, and hold the carrier to a different responsibility from that fixed by the agreement made under the published tariffs and regulations.
“A different view would antagonize the plain policy of the act, and open the door to the very abuses at which the act was aimed.”
In the majority opinion, the case of Hatch v. Minneapolis, St. P. & S. Ste. M. R. Co. 15 N. D. 490, 107 N. W. 1087, is relied upon to sustain the conclusion at which they have arrived. It is apparent, upon the most casual examination of the decision in that case, that the conclusion there is diametrically opposed to the purpose and intent of that part of the Commerce Act above set forth.
If the rule in the Hatch Case is correct, then the requirements of the Federal act, as to notice and filing of claims, and the time within which to bring an action, are of no real force nor effect, cither as expressed in the act, or as incorporated into a contract based upon its provisions, and hence the door would thereby be opened to all abuses sought to be prevented by the act; that is, a carrier, though it could not give a favorite shipper a different rate than that prescribed by the published tariffs, as fixed by the Interstate Commerce Commission, it could recognize damages claimed to have been suffered by such shipper, in a substantial amount, when no great amount of damage had been suffered; and if there were no formal notice or statement of amount of claim required to be filed with the carrier, there would be nothing in the carrier’s records from which it might be ascertained whether the claim was legitimate or not, and thus the opportunity is afforded the favorite shipper, of receiving, in effect, a rebate. This procedure, if carried on to any considerable degree, must necessarily result in other shippers paying a higher rate; in short, result in discrimination among shippers.
It may be true, as stated in the Hatch Case, that the notice required is not a part of the cause of action; and that the cause of action is complete before the condition becomes operative, but, in this case, it was necessary to serve the notice of claim pursuant to the act and the contract based upon it, before the court acquired jurisdiction.
It is a condition precedent to the bringing of an action, which must be observed, and this, upon the broad ground of public policy, to prevent discrimination and rebating among shippers.
*547It should also be remembered that the Hatch Case was decided prior to the time when the Carmack Amendment became effective. If this court follows the rule in that case, it appears to us it will be in the same position on principle as that stated by the Supreme Court of the United States in the case of Atchison, T. & S. F. R. Co. v. Robinson, 233 U. S. 173, 58 L. ed. 901, 34 Sup. Ct. Rep. 556. There, the court, in the syllabus, said: “A decree of a state court, denying to the defendant the benefit of a Federal statute, compliance with which was set up in the answer, and supported by testimony tending to show the truth of the allegations thereof, is an adverse ruling on a Federal right, which, under the Judicial Code, § 237 (36 Stat. at L. 1156, chap. 231, U. S. Comp. Stat. § 1014, 5 Fed. Stat. Anno. 2d ed. p. 723), warrants bringing the case up to the Federal Supreme Court by a writ of error.”
And so we are convinced, in this case, that the adherence to the rule in the Hatch Case is a denial of defendant’s rights, under Federal act, and the interpretation thereof, as contained in Georgia, F. & A. R. Co. v. Blish Mill. Co. supra.
In this case, it was no hardship for plaintiff to have complied with the contract and the requirements of the act. If he had pleaded and proved that he had served a proper notice upon any agent of the defendant (and there are thousands of them, and many near at hand where plaintiff resided), and had proved that he had filed a claim, the judgment which he has recovered might then properly be affirmed; but that was not done, and we think, for that reason, the judgment cannot stand.
It is evident that, if such notice and proof is not required, then the act becomes ineffective, and public policy, which is its basis, is entirely disregarded; and the abuses abolished by it will again rise and flourish.
In the construction of this law, we must apply one rule or the other. Either the one requiring pleading and proof of notice, which leads to order, uniformity of treatment of shippers, and the sustaining of the sound public policy of the act, or we must take the other, where pleading and proof of notice is immaterial, which leads to chaos, favoritism, discrimination, and rebating, and the throwing down of the sound public policy of the act.
The act is Federal. The legal construction of it has been ascertained *548and enunciated by the highest Federal judicial authority. I feel that our position is in harmony with that authority.
We think, for the reasons, above stated, and for those reasons only, the trial court should have directed a verdict for the defendant. We think the judgment appealed from should be reversed, and the case remanded for a new trial.