as unnecessary upon any grounds of public policy, and have held that, in the absence of any other contract than such as is generally to be implied from the acceptance of the goods for carriage, the obligation of the carrier extends only to the transportation to the end of his route and a delivery there to the next succeeding "So long ago as 1860 this court, in the case of this same company against Copeland, 24 Ill. 332, expressed a decided partiality for the rule in Muschamp's Case, 8 Mees. & Wels. 421, so much relied on by the appellee, and in which case all the authorities, both English and American, were fully examined, and we said, though this point was not in the case, we were inclined to yield to the force of the reasoning of the English courts on principles of public convenience, if no other, and to hold when a carrier receives goods to carry, marked to a particular place, he is prima facie bound to carry and deliver at that place. By accepting the goods so marked he impliedly agrees so to do, and he ought to be answerable for the loss. "Again, in the case of the same company against Johnson, 34 id. 389, there was an express understanding to transport the goods to Wheeling, but the court, referring to Copeland's Case, supra, considered that case as holding that a carrier who receives goods to carry, marked to a particular place, was bound to carry to and deliver at that place-that it was on an agreement implied from the mark or direction on the goods, and accepting them so marked that the liability arose. "Now, on the point of public convenience, which consideration had great weight with us in de termining which rule should be adopted, it seems to us that consignors of the productions of our country or other property by railroad should not be required in case of loss or damage, to look for remuneration to any other party than the one to which they delivered the goods. It would be a great hardship, indeed, to compel the consignor of a few barrels of flour delivered to a railroad in this state, marked to New York city, and which are lost in the transit, to go to New York, or to the intermediate lines of road, and spend days and weeks, perhaps, in endeavors to find out on what particular road the loss happened, and, having ascertained it, in the event of a refusal to adjust the loss, to bring a suit in the court of New York for his damages. Far more just would it be to hold the company who received the goods in the first instance as the responsible party, and the intermediate roads its agents to carry and deliver; and it is the most reasonable and just, for all railroads have facilities not possessed by a consignor of tracing losses of property conveyed by them, and all have, or can have, running connections with each other. Above all, when it is considered the receiving company can, at the outset, relieve itself from its common-law liability by a special and definite agreement, such a rule cannot prejudice them. The rule carrier to further or complete the transportation. In order to be bound further there must be a positive agreement, either express or implied, extending the liability,11 and the burden of proof will being known, all parties can readily accommodate their business to it, and no inconvenience can result to any one from its operation." A contract exempting the carrier from liability was, however, enforced. 11. See United States: Railroad Co. v. The Manuf. Co., 16 Wall. 318; Railroad Co. v. Pratt, 22 id. 123; Myrick v. Railroad Co., 107 U. S. 102; Stewart v. Railroad Co., 1 McCrary, 312; Railway v. Fairbanks & Co., 90 Fed. 467, 33 C. C. A. 611; Railroad Co., v. Jones, 155 U. S. 333, 15 Sup. Ct. R. 136. California: Cavallaro v. Railway Co., 110 Cal. 348, 42 Pac. Rep. 918, 52 Am. St. Rep. 918, citing Hutchinson on Carr. See also, Pereira v. Railroad Co., 66 Cal. 92. Connecticut: Hood v. The Railroad, 22 Conn. 502; Elmore v. The Railroad, 23 Conn. 457. Florida: Savannah, etc. R'y Co. v. Harris, 26 Fla. 148, 7 So. Rep. 544. See also, Bennett v. Filyaw, 1 Fla. 403. Indiana: Railway Co. v. Bryant, 829. Kentucky: Railroad Co. v. Crozier, 13 Ky. Law Rep. 175; Railway Co. v. Foster, 13 id. 637; Railroad Co. v. Cooper, 19 Ky. Law Rep. 1152, 42 S. W. Rep. 1134; Thomas v. Railway Co., 25 Ky. Law Rep. 1051, 76 S. W. Rep. 1093. Louisiana: Vincent & Hayne, 114 La. 1021, 38 So. Rep. 816. Maryland: Balt. & O. R. R. v. Schumaker, 29 Md. 176; Hoffman v. Railroad Co., 85 Md. 391, 37 Atl. Rep. 214. Maine: Perkins v. The Railroad, 47 Me. 589; Skinner v. Hall, 60 id. 477; Plantation v. Hall, 61 id. 517. Massachusetts: Nutting v. The Railroad, 1 Gray, 502; Darling v. The Railroad, 11 Allen, 295; Burroughs v. The Railroad, 100 Mass. 26. Michigan: McMillan v. The Railroad, 16 Mich. 120; Detroit, etc. R'y v. McKenzie, 43 Mich. 609; Rickerson, etc. Co. v. Railroad Co., 67 Mich. 110; Smith v. Express Co., 108 Mich. 572, 66 N. W. Rep. 479. Minnesota: Irish v. The Railroad, 19 Minn. 376. Mississippi: Crawford v. The R. R. Association, 51 Miss. 222. New Hampshire: Gray v. Jackson, 51 N. H. 9. New York: Van Santvoord v. St. John, 6 Hill, 158; Condict v. The Railroad, 54 N. Y. 502; Roct v. The Railroad, 45 id. 524; Klein v Dunlop, 16 Misc. Rep. 34, 37 N. Y. Supp. 947; Bishawaiti v. Railroad Co., 92 N. Y. Supp. 783; Soviero v. Express Co., 94 N. Y. Supp. 375. North Carolina: Phillips v. The Railroad, 78 N. C. 294; Knott v. Railroad Co., 98 N. Car. 73; Mere dith v. Railway, 137 N. Car. 478, 50 S. E. Rep. 1, citing Hutchinson on Carr. Oklahoma: Church v. Railroad Co., 1 Okl. 44, 29 Pac. Rep. 530. Oregon: Taffee v. Railroad Co., 41 Or. 64, 67 Pac. Rep. 1015, 58 L. R. A. 187, citing Hutchinson on Carr. Pennsylvania: Camden, etc. R. R. v. Forsyth, 61 Penn. St. 81; Rhode Island: Harris v. Railway Co., 15 R. I. 371; Knight v. Railroad Co., 13 R. I. 572. only part of the distance, and that it was necessary for it to transfer its freight for New York to another line, which it did in this instance, taking a receipt for it from the connecting carrier. It was further admitted that the defendant company was paid for the carriage only to the end of its own line and that there was no connection in business between the two lines. In giving the judgment of the court, Metcalf, J., said: "In our judgment the obligation is nothing more than to transport the goods safely to the end of their road and there deliver them to the proper carriers to be forwarded towards their ultimate destination. . . . But the plaintiff seeks to charge the defendant on the receipt given by Clarke, their agent, as on a special contract that the boxes should be safely carried the whole distance between Northampton and New York. We cannot so construe the receipt. It merely states the fact that the boxes had been received for transportation to New York; and the plaintiff might have proved that fact, with the same legal consequences to the defendIn a number of these cases, ant, by oral testimony, if he had however, the point was not in- not taken the receipt. The receipt volved or there was an express in our opinion imposed on defendexemption from liability. See ant no further obligation than the 232. Texas: Hunter v. Railway Co., 76 Tex. 195; Railway Co. v. Gallagher, (Tex. Civ. App.) 64 S. W. Rep. 809, citing Hutchinson on Carr.; Gulf, etc. R'y Co. v. Jackson & Edwards, Tex. 89 S. W. Rep. 968, reversing (Tex. Civ. App.) 86 S. W. Rep. 47. Vermont: Farmers & M. Bank v. The Trans. Co., 23 Vt. 186; Brintnall v. The Railroad, 32 Vt. 665; Hadd v. Express Co., 52 Vt. 335. Virginia: McConnell V. Rail road Co., 86 Va. 248, 9 S. E. Rep. 1006. Nutting v. The Connecticut River Railroad may, perhaps, be considered as the leading case in opposition to the English rule. The receipt for the goods, so far as material to the question of liability, was, "Received of E. Nutting for transportation to New York." The proof was that the defendant company's line extended law imposed without it." And in reference to the rule as laid down in Muschamp v. The Railway, which was urged upon the court, he went on to say: "We cannot concur in that view of the law, and we are sustained in our dissent from it by the court of errors of New York and by the supreme courts of Vermont and Connecticut." be upon the shipper to prove that such an agreement was made.12 And this is frequently called the American rule, in distinction to that of the English courts. Sec. 232. (§ 149a.) Further of this rule. This conflict in the cases respecting the rule of Muschamp's Case seems, however, to be more apparent than real, and to be based in many instances upon an entire misapprehension of the true effect of the decision in that case.13 In many of the American cases in which it is referred to, it was wholly foreign to the issue, inasmuch as the contract involved in those cases, whether imposing or excluding the liability, was in writing and clearly express, while in Muschamp's Case the contract was neither in writing nor express, but was wholly implied from circumstances.14 Cases of 12. Taylor v. Railroad Co., 87 Me. 299, 32 Atl. Rep. 905. 13. In Gray v. Jackson, 51 N. H. 9, 34, Doe, J., after reviewing substantially all of the English and American cases down to that date (1871), says: "These are some of the principal American cases usually cited on the question of the liability of a carrier beyond his own route, in the absence of an express written contract. Some of them are not in point. Many contain nothing but dicta on the subject. Some turn on writings held to be, or treated as, express contracts, the construction of which by the court show the understanding of the parties, without the finding of a jury on parol or circumstantial evidence. Some are based on the mistake of supposing that in Muschamp's Case the defendants were held liable by the court as a matter of law. Some are controlled or influenced by the mistake of supposing that in Muschamp's Case the opinions of the judges on the prima facie weight of the evidence were opin ions on the law. It would seem that in no one of them has the question been to be, or been treated as, a question of law, where it was claimed to be a question of fact or where the attention of the court was called to the distinction between law and fact,-a distinction which has been clouded by misapprehensions of Muschamp's Case. In nearly all of them, when there is no decisive contract in writing, it is held to be, or practically treated as, a question of fact. There is much in the American authorities going strongly to show that Lord Abinger was right, and there is nothing in them having any considerable tendency to show that hc was wrong when he said, in Muschamp's Case, "The whole matter is therefore a question for the jury, to determine what the contract was, on the evidence before them."" 14. How true this is can be best determined by a careful examination of the cases cited in the two preceding sections, but of the this nature should and doubtless would have been decided in the same way in any of the states. The rule in Muschamp's Case has also been regarded in many of the American cases as constituting a part of the common law in the same manner as the rule fixing the carrier's liability as an insurer, and, like that liability, placed beyond the reach of contracts limiting the responsibility for negligence.15 Rut this it clearly is not. The whole liability of the carrier beyond his own line is based upon contract, express or implied, and unless such a contract appears there is no liability16 A fortiori is there no such liability where there is not only no implied contract creating it but an express contract excluding it.17 "There is really no great difference," said the court in the case of Piedmont Manufacturing Company v. The Railroad,18 between the English and American doctrine on this subject. The one holds that to exempt a carrier from liability beyond its terminus there must be a special contract to that end. The other, that to make the first carrier responsible there must be a special contract to that end. Both admit that the carrier is not bound to go beyond the terminus, but that he may do so; and if he undertakes to do so he is bound by his undertaking. In the one cases in which there was an express exemption, the cases of Hunter v. Railway Co., 76 Tex. 195; McConnell v. Railroad Co., 86 Va. 248, 9 S. E. Rep. 1006; Ortt v. Railway Co., 36 Minn. 396; Berg v. Railroad Co., 30 Kan. 561; Harris v. Railway Co., 15 R. I. 371; Myrick v. Railroad Co., 107 U. S. 102, will furnish illustrations, while of the other class such cases as Falvey v. Railroad Co., 76 Ga. 597; Hansen v. Railroad Co., 73 Wis. 346; Mobile, etc. Railroad Co. v. Copeland, 63 Ala. 219, are examples. 15. See Condict v. Railroad Co., 54 N. Y. 501. 16. See Berg v. Railroad Co., 30 Kan. 561; Cincinnati, etc. R. R. Co. v. Pontius, 19 Ohio St. 221; Detroit, etc. R. R. Co. v. Bank, 20 Wis. 122; Gray v. Jackson, 51 N. H. 9; Piedmont Mfg. Co. v. Railroad, 19 S. C. 353; Marmonstein v. Railroad Co., 13 Misc. Rep. 32; 34 N. Y. Supp. 97, reversing 11 Misc. Rep. 725, 32 N. Y. Supp. 1146; Railway Co. v. Viers, 24 Ky. Law Rep. 356, 68 S. W. Rep. 469; Pennsylvania Co. v. Dickson, 31 Ind. App. 451, 67 N. E. Rep. 538, citing Hutchinson on Carr. 17. See cases cited in following section. 18. Piedmont Mfg. Co. v. Rail road, 19 S. C. 353. |