ON MOTION FOR A REHEARING. The defense in this case has always been (1) that Pablo was beer under the meaning of the Constitution of Arizona, and (2) that if it was not beer, its appearance deceived defendants into thinking that it was beer. Some confusion has arisen as to whether we meant to say in the foregoing opinion that there was evidence that the beverage was beer and not Pablo or whether it was Pablo and that Pablo is beer. In this connection plaintiff contends that defendants are bound by the testimony of plaintiff's brew master and chemist, put on the stand by them, to the effect that Pablo is not beer. Our opinion may not be as plain as it should be on the point. However, we were of the belief that defendants were not bound by the testimony of said witnesses in view of the evidence that tended to contradict them and undoubtedly this is the law. [Frankel v. Hudson, 271 Mo. 495, 503; Dinstore v. St. Louis, 192 Mo. 255; Brannock v. Railroad,147 Mo. App. 301, 320, 322.] In the opinion we had this rule in mind when we said "while Pablo as described by the brew masterand chemist was not beer . . . there was some slight testimony . . . that the car of beverage shipped was beer" and "there is an inference from the testimony that the liquid was not a beverage that the brew master and chemist described as Pablo." We intended to be careful not to say that what the chemist and brew master described as Pablo was in fact Pablo. What we meant to say was that there was evidence that the Pablo examined by Dr. Meserve was beer and was not either good or spoiled Pablo such as the chemist and brew master testified to as Pablo.
The defendant, Southern Pacific Company, has filed a motion to modify the opinion to such an extent as to allow it to interpose the defense of deceptive appearance of the shipment, contending that it is not bound by the knowledge of the defendant, Chicago, Milwaukee St. Paul Railway Company, as to the appearance of the shipment *Page 345 when the latter received it. There exists authority to the effect that in forwarding goods over the line of a connecting carrier the initial carrier acts as agent of the consignor and if this rule is to be applied, the knowledge coming to the initial carrier in making the contract of carriage would not be knowledge of the connecting carrier, but the weight of authority is that in forwarding the goods the connecting carrier is the agent of the initial carrier and in making the contract of carriage the initial carrier is the agent of the carrier undertaking to complete the carriage. [Halliday v. Railway, 74 Mo. 159, 163; Cobb v. Brown, 193 F. 958; Hachadoorian v. Railroad,112 N.Y.S. 660; Alcorn v. Express Co., 148 Ky. 352, 354, 355, 356; Ill. Cent. R.R. Co. v. Curry, 127 Ky. 643, 649; B. O. Southwestern Rd. Co. v. Clift, 142 Ky. 573, 576; Nashville, etc., Rd. v. Carrico, 95 Ky. 489, 491; 10 C.J., p. 543.] So defendant, Southern Pacific Company, is undoubtedly bound by the knowledge obtained by the initial carrier, Chicago, Milwaukee St. Paul Rd. Co. in making the contract of carriage.
The motions for a rehearing and to modify are overruled.