This is the second appeal of this case, the issue before was raised by demurrer and decided in appellees’ favor, the complaint being held sufficient. Cumbie v. St. Louis, I. M. & S. Ry. Co., 105 Ark. 406.
The suit was for damages to thirty-five ears of peaches shipped over appellant’s line from Greenwood, this State, to Cleveland, Ohio, and various other points, because of the negligent delay in transportation and failure to ice properly in transit.
The bill of lading issued by appellant, the initial carrier, provided: “Claims for damages must be reported by consignee in writing to the delivering line within thirty-six hours after the consignee is notified of the arrival of the freight at place of delivery. If such notice is not there given, neither this company nor any of the connecting or intermediate carriers shall be liable.”
This stipulation was pleaded in the complaint passed upon with an allegation that it was unreasonable and void and constituted a restriction or limitation upon the railway’s liability and without any allegation that the notice was given. But it was alleged in the amendment to the complaint that the delivering carrier examined said peaches upon arrival and knew for itself the condition of the consignment on delivery, and that its general agent, for such shipments, naming him, and its local agent at Greenwood, knew all the foregoing facts.
It was there held that the complaint was sufficient and that it was not necessary as a condition of recovery that the ¡shipper give the delivering carrier the notice of an intention to claim damages to the peaches since such carrier through its agents examined and knew the condition of the 'shipment .of peaches while in its possession at their destination, according to the allegations of the complaint, which were admitted by the demurrer. The court said, “Where the facts stated show that the delivering carrier had actual knowledge ¡of all the conditions that a written notice could give it, the written notice is not required and a provision requiring it under such circumstances would be unreasonable.”
*481It was also ¡held that it made no difference whether the provisions of the contract of shipment required the notice “of loss or damage to he given” or whether its language provided for written notice of an intention to claim damages, .the purport of these provisions ¡being .alike and having the same legal effect and also that they were not limitations upon or exemptions from liability of the carrier but only conditions precedent to recovery.
On this trial appellees introduced testimony in support of its allegation that the delivering carrier examined the shipment on .arrival at destination iand ascertained the damaged condition thereof. Such testimony was to the effect that 'the depot manager in one instance had an opportunity to see the condition of the fruit, although no employee of the railroad was with the .consignee When he inspected the car that had been opened for him before delivery. In .another, that no claim for damages was put in, but he notified the delivering carrier verbally that the car was in bad condition. Relative to another car, that it was the custom of the delivering carrier to inspect peaches before delivery and that one of the clerks did inspect it. In other instances, that .some yard clerk or some employee of the road saw the car unloaded and knew the damaged and rotten condition of the peaches.. 'The agents of the different delivering carriers, the local freight agents in .some instances and the agents to whom the notices of intention to claim damages should have been given, or to. whom they would finally have come, as well as the general freight claim agent of the appellant company, all testified that no notice in writing was given to the delivering carrier of the damaged condition of the .shipment of peaches nor of an intention to claim damages within thirty-six hours .after the arrival of the shipment and that they had no notice of any ,sudh damaged condition or intention to claim damages until the bringing of these suits. Said general claim agent .stated that he caused an investigation to be made of the handling of the thirty-five cars embraced in this suit and no written notice was given within thirty-six hours after the notice of arrival of cars *482at destination ¡or ¡at all upon the delivering lines, as to any claim for-damages ¡by tbe consignee to tbe agent of tbe delivering line. His first knowledge ¡of any such claim was the bringing of tbe siuit. That no exceptions or objections were made by tbe consignees at the time of tbe delivery of tbe Cars and tbat they were delivered upon receipts of tbe connecting carriers and tbe consignees, showing them to be in good order.
No attempt was made to show that any written notice was given to .any delivering carrier of 'an intention to claim damages within thirty-six hours of the arrival of tbe shipment, or at all, nor was any testimony introduced tending to show that the local agents of appellant at G-reenwood knew of any such material facts as .alleged in the complaint and they both testified that they had no knowledge of tbe peaches arriving in a damaged condition or that tbe appellee claimed damages on account thereof, until tbe filing of tbe ¡suit.
(1-2) The court has not only frequently held that such a provision requiring tbe written notice of tbe intention to claim damages given to tbe delivering carrier is reasonable and a condition precedent bo recovery, but has so held in this case on the former appeal as already said. Such notice can only be dispensed with by ¡showing that tbe delivering carrier bad actual knowledge of the damaged condition of tbe shipment on arrival and necessarily that a claim therefor would be made. The purpose of requiring such notice to be given is to enable the carrier, while the occurrence is ireeent, to inform itself ¡of the actual ¡facts occasioning the loss or injury that it may protect itself against claims Which might be made upon it, •after such lapse of time as to make it difficult if not impossible, to ascertain the truth. St. Louis & S. F. Rd. Co. v. Keller, 90 Ark. 313; St. Louis, I. M. & S. Ry. Co. v. Furlow, 89 Ark. 404; St. Louis, I. M. & S. Ry. Co. v. Cumbie, 101 Ark. 172.
In this last cited case, the ¡consignee or his agent, declined to receive the .shipment, thinking it damaged in its entire value, and sent ¡a telegram to that effect to tbe con*483signor, a copy of which, was given to the delivering carrier and it was held that that was a sufficient compliance with the provision requiring written notice of .an intention to claim damages. The purpose of the ¡clause requiring notice would he utterly defeated and such requirement rendered ineffectual and worthless if it could be disregarded and a recovery had, notwithstanding the failure to give it, upon .the testimony of appellee introduced in the trial. The most it tends to show is that some agent or some employee of the delivering carrier saw, or could have seen, if he had endeavored to do so, the damaged condition of the shipment of peaches on arrival and delivery. Nowhere does any one of said witnesses say or intimate that he notified any agent of sudh carrier in authority that the shipment was so damaged, and that a claim for damages would be made. Of course, the delivering carrier could inspect for itself each oar load of perishable freight upon delivery to the consignee and .ascertain its condition, and if the testimony was sufficient to show that this had been done and that such carrier had actual 'knowledge of such damage as must cause a reasonable inference that a claim would be made therefor, it might be required to ■answer for such damage without the written notice. But here was a reasonable provision of its contract of carriage upon the compliance with which it had the right to rely ■and which was not attempted to be performed by the consignee who relies for his failure to give the notice upon the alleged fact that such carrier had actual knowledge of the damaged condition of the shipment on arrival at destination and must take notice that a. claim would be made for such damages.
(3) The burden of proof was upon the shipper, Who failed to give the written notice, to show such actual ¡knowledge of the damaged condition of the shipment on arrival .and delivery to the consignee as would cause such delivering carrier to know that a claim for damages would be made, ¡that it might investigate and discover the true condition 'and protect itself against unjust claims.
*484■ The fact that some employee whose duties were not shown to include the investigation of such matters or to report to some agent in .authority ¡anything relating to ¡the condition of the shipment was present upon the delivery -and saw the damaged condition of the fruit shipped, or could have seen it, is not sufficient to show actual 'knowledge upon the part of the delivering carrier that would excuse the failure to give ¡the written notice of intention to claim damages as a condition precedent, to recovery. It might he that some employee or some .agent who had no duty whatever relative to such matters could he present and see the shipment ¡and know of its damaged condition, and still the agents or employees, whose duties required attention to such matters, never be informed about it.
The proof is not sufficient to support the findings and judgment. The judgment is therefore reversed ¡and the cause having been fully developed, must be dismissed. It is so ordered.