
    C. A. MOORE et al. v. AMERICAN RAILWAY EXPRESS COMPANY.
    (Filed 27 April, 1921.)
    1. Carriers of Freight — Railroads — Commerce — Contracts—Receipts— Stipulations — Written Demand — Federal Statute.
    The usual stipulations in the- bill of lading or contract of carriage, requiring written notice to the common carrier for damages as a condition precedent, and upheld as conditions on the right of recovery, -and not exemptions from liability for its negligent acts or torts, are changed as they affect interstate commerce by the Cummins’ Amendment to the Interstate Commerce Act.
    2. Same — Cummins’ Amendment — Reasonable Time.
    Under the Cummins’ Amendment to the Interstate Commerce Act, a written demand upon the common carrier for damage caused by its failure to deliver an interstate shipment, is to be made within a reasonable time from the date of shipment, which depends upon the facts and circumstances of each particular case.
    
      S. Same — War—Evidence.
    In order to show that a written demand for damages had been made within a reasonable time on a common carrier failing to make delivery of an interstate shipment, it is competent for the plaintiff in the action to show that all shipments were then delayed owing to a state of war and the Government’s control and pressing need of the carrier’s service, and also an epidemic which then affected transportation.
    Appeal by plaintiff from Ra,y, J., at tbe November Term, 1920, of DAVIDSON.
    This is an action commenced before a justice of tbe peace to recover tbe value of certain shoes shipped by express from Brockton, Mass., to Tbomasville, N. C., to tbe plaintiffs.
    Tbe shoes were never delivered, and in tbe express receipt executed by tbe defendant there was tbe following stipulation:
    “7. Except where tbe loss, damage, or injury complained of is due to delay or damage while being loaded or unloaded, or damaged in transit by carelessness or negligence, as a condition precedent to recovery, claims must be made in writing to tbe originating or delivering carrier within four months after delivery of tbe property or, in case of failure to make delivery, then within four months after a reasonable time for delivery has elapsed; and suits for loss, damage or delay shall be instituted only within two years and one day after delivery of tbe property, or, in case of failure to make delivery, then within two years and one day after a reasonable time for delivery has elapsed.”
    Tbe plaintiffs filed their claim against tbe defendant five months and four days after tbe shipment was delivered at Brockton, Mass., to tbe defendant.
    
      Tbe plaintiffs offered certain evidence on tbe question oí wbat was a reasonable time for delivery wbieb will be set out in tbe opinion.
    His Honor reserved tbe question as to tbe effect of tbe stipulation in tbe receipt and submitted an issue to tbe jury, and tbe jury returned tbe following verdict:
    “In wbat amount, if anything, is tbe- defendant indebted to tbe plaintiff? Answer: $103.75.”
    His Honor then beld that tbe plaintiffs were not entitled to recover upon tbe ground that tbirty-four days having elapsed after four months from tbe time of delivery to tbe defendant at Brockton that this was not within a reasonable time for delivery as provided in tbe receipt, and tbe plaintiffs excepted.
    Judgment was entered in favor of tbe defendant, and tbe plaintiffs appealed.
    
      H. R. Kyser for plaintiffs.
    
    
      Robt. Q. Alston and Walser & Walser for defendant.
    
   AlleN, J.

It is usual to insert in contracts of shipment stipulations that written notice of a claim for damages shall be given within a designated time, and these stipulations, if reasonable, are generally sustained in tbe State and Federal courts, and upon tbe ground that they are conditions on the right of recovery and not exemptions from liability. Culbreth v. R. R., 169 N. C., 725; R. R. v. Blish Milling Co., 241 U. S., 190; 10 C. J., 326 et seq.

“Tbe purpose of requiring such notice to be given is to enable tbe carrier, while tbe occurrence is recent, to inform itself of tbe actual facts occasioning tbe loss or injury, that it may protect itself against claims which might- be made on it after such lapse of time as to make it difficult, if not impossible, to ascertain tbe truth.” 10 O. J., 328.

There have been, however, important changes in tbe form of these provisions as related to interstate shipments, such as tbe one before us, brought about by tbe provisos to tbe Cummins’ Amendment to tbe Interstate Commerce Act, which are as follows:

"Provided further, 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 tbe filing of claims for a shorter period than four months, and for tbe institution of suits than two years: ■Provided, however, that if tbe loss, damage, or injury complained of was due to delay or da'mage 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.”

Tbe Cummins’ Amendment, approved 4 March, 1915, is reproduced in Mann v. Transportation Co., 176 N. C., 107.

It is evident that tbe express receipt relied on by tbe defendant was intended to conform to tbe last proviso, and that it contains its substance, wbicb was intended to relieve from tbe necessity of filing any claim if tbe loss or damage is caused by carelessness or negligence due to delay, or while loading or unloading or in transit. Hailey v. Oregon Short Line, 253 F., 569.

But tbe contract of tbe defendant goes beyond tbe Cummins’ Act by providing that claims must be made in writing “in case of failure to make delivery within four months after a reasonable time for delivery has elapsed,” a clause inserted because it is “very generally held that stipulations of tbe character under consideration have no application where tbe goods are never delivered.” 10 C. J., 335.

Tbe case of tbe plaintiffs must then depend on whether they presented their claim “within four months after a reasonable time for delivery bad elapsed,” as they have brought their action in contract, without allegation or proof of negligence, and are not in position to demand tbe benefit of tbe exceptions in the contract, because to do so would show an action in tort, wbicb would oust tbe jurisdiction of tbe justice, tbe amount involved being more than $50.

What is a reasonable time for delivery depends on tbe distance to be traveled, tbe situation of tbe parties, tbe character of tbe goods, and all tbe surrounding circumstances, and it is “Generally a mixed question of law and fact, not only where tbe evidence is conflicting, but even in some cases where tbe facts are not disputed; and tbe matter should be decided by tbe jury upon proper instructions on tbe particular circumstances of each case. . . . Tbe time, however, may be so short or so long that tbe court will declare it to be reasonable or unreasonable as a matter of law. Whether tbe question of reasonable time is one of fact or law must, ‘from tbe very nature of things,’ depend upon the circumstances of each particular case, as business affairs are so kaleidoscopic in their nature that it is seldom, if ever, that any two transactions are exactly alike.” Claus v. Lee, 140 N. C., 554.

One of tbe principal inducements to ship by express is quickness of transportation, and under ordinary conditions we would bold as matter of law that a delay of thirty-four days in tbe delivery of a shipment from Brockton, Mass., to Tbomasville, N. O., would be unreasonable, but this shipment was made in time of war, when tbe Government bad charge of and was operating railroads and express companies, and when every power and resource of tbe country was devoted to one end, tbe successful prosecution of tbe war, with consequent preferences given to one class of business and frequent embargoes on others; and tbe plaintiffs offered to prove “that at this time all shipments were delayed by reason of war conditions; that it was common for shipments to be delayed at this time by reason of the conditions arising by reason of war existing between the United States and Germany, and that thirty-four days was not an unreasonable time to wait for the delivery of this shipment in view of these facts, circumstances, and conditions.” Also, “that there was an epidemic of influenza in the United States' at the time of this shipment; the defendant company had many employees out by reason thereof, and shipments were being delayed by reason thereof.”

This evidence was excluded by the court, when it ought to have been received, as having an important bearing on the question whether notice of claim was filed by the plaintiffs within four months after a reasonable time for delivery had elapsed.

The objection that -the plaintiffs did not offer to show that other shipments were made under similar conditions is met by the statement that the plaintiffs proposed to prove by the witness then being examined that this condition applied to all shipments, and that thirty-four days was not an unreasonable time to wait for the delivery of this shipment.

If the witness knows the facts and will so testify, the evidence ought to be submitted to the jury under proper instructions.

New trial.  