* Motion for rehearing denied, with $25 costs, on July 27, 1943. *Page 162 Action commenced June 25, 1941, by Chicago, St. Paul, Minneapolis Omaha Railway Company, plaintiff, against Edward T. Kileen and Thomas Kileen, copartners doing business as Kileen Construction Company, defendants, to recover freight charges on shipments of sand and gravel from the Wissota Sand Gravel Company, from its pit at Haugen, Wisconsin, to defendant Construction Company at Ashland Junction and Dauby, Wisconsin. All shipments were intrastate. Plaintiff's claim was in the sum of $3,040.69. Defendants filed a counterclaim for damages alleged to have been sustained by the loss of sand and gravel while being transported, through the negligence of plaintiff carrier. The case was tried to the court and jury. The jury found for the plaintiff and assessed its damages at $960.73. On motions after verdict the court awarded plaintiff the full *Page 163 amount of its claim. From a judgment accordingly entered on November 20, 1942, defendants appeal. The material facts will be stated in the opinion. Plaintiff carrier brings this action to recover freight charges for the transportation of sand and gravel shipped by Wissota Sand Gravel Company from its pit at Haugen, Wisconsin, to the defendant Construction Company at Ashland Junction and Dauby, Wisconsin. There were in all eighty-eight separate shipments. The carrier furnished its cars at the Wissota Sand Gravel Company's pit when and as ordered by defendant Construction Company. Each shipment moved under a separate bill of lading. The bills of lading were made out at the Wissota Sand Gravel Company's pit by its employees. The cars were receipted for by the carrier's agent at Haugen. There being no scale, either at the pit or at the railroad station at Haugen, the cars were weighed at Spooner, Wisconsin, seventeen miles north of Haugen. On each bill of lading was printed, "received, subject to the classifications and tariffs in effect on the date of the issue of bill of lading." Sec. 2 (b) of the Uniform Bill Lading, under which each shipment moved, provides as follows: "As a condition precedent to recovery, claims must be filed in writing with the receiving or delivering carrier, or carrier issuing this bill of lading, or carrier on whose line the loss, damage, injury or delay occurred, within nine months after delivery of the property (or, in case of export traffic, within nine months after delivery at port of export) or, in case of failure to make delivery, then within nine months after a reasonable time for delivery has elapsed; and suits shall be *Page 164 instituted against any carrier only within two years and one day from the day when notice in writing is given by the carrier to the claimant that the carrier has disallowed the claim or any part or parts thereof specified in the notice. Where claims are not filed or suits are not instituted thereon in accordance with the foregoing provisions, no carrier hereunder shall be liable, and such claims will not …
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