ON MOTION FOR REHEARING,
GOODE, J.A motion for rehearing has been filed in this case supported by an elaborate brief, contending the rules of law declared in the opinion are contrary to the' decided cases and of disastrous tendency. The propositions of law the opinion is said to contravene will be stated in their order. First, it is contended there is a presumption the last of several carriers which hauls a consignment of freight — in this *373case the Wahash Company — is to blame for damage occurring in transit, and as enforcing this presumption we are cited to Crouch v. Railroad, 42 Mo. App. 252; Jones v. Railroad, 115 Mo. App. 235, 91 S. W. 158; Hurst v. Railroad, 117 Mo. App. 38, 94 S. W. 794; Connelly v. Railroad, 133 Mo. App. 310, 133 S. W. 233. Said presumption does not apply to a case like the present, where the negligence of the carrier is charged to have caused the damage. We so ruled in Hurst v. Railroad, supra, and the other cases cited were based on the failure to perform contracts to deliver the freight at destination and not on tortious management. That a plaintiff who avers loss or damage to his .property while in shipment was caused by negligence, must prove the averment, has been decided repeatedly in this State and the decisions are reviewed in Stanard Mill Co. v. Transit Co., 122 Mo. 258, 275, 26 S. W. 704.
The second proposition adduced in the brief on motion for rehearing is that the presumption against the final carrier obtains in an action on. section 5222 of the statutes (1899) as amended in 1905', and we are charged with erroneously holding the amendment did away with the presumption. Our answer is the presumption never applied to actions on the statute when negligence was charged in the petition, as possibly it must always be; since the redress allowed by the statute is confined to losses caused by the negligence of a carrier.
The third contention is we erred in holding the bills of lading for shipments declared on in the third and fourth counts of the petition were not contracts for through shipment. Those bills of lading were so drawn as to bring them within express decisions of the Supreme Court of Missouri, as interpreted by the Supreme Court of the United States, as to what constitutes a contract by the initial carrier simply to transport to the end of its own line. [Railroad v. Mc-*374Cann, 174 U. S. 580; Western Sash. & Door Co. v. Railroad, 177 Mo. 641, 76 S. W. 998.] In Blackmer, etc., Co. v. Railroad, 137 Mo. App. 479, 504, 119 S. W. 13, we intimated doubt about the soundness of this construction of section 5222, which the writer thinks was enacted to hold the initial carrier answerable if the goods were received for carriage to a point beyond its own line, no matter in what form the bill of lading was issued. The construction began with Dimmitt v. Railroad, 103 Mo. 433, 15 S. W. 761, was retained in a modified form in McCann v. Eddy, 133 Mo. 59, 33 S. W. 71, and, right or wrong, is beyond the power of this court to alter.
Fourthly, it is contended in the motion for rehearing that where goods are hauled from the point of shipment to destination by several carriers and losses occur in transit, the shipper may recover from the initial carrier in an action in which all are joined as defendants, without introducing evidence to prove the loss was due to the negligence of the first carrier; that the amendment to the statute did not impose on the shipper the burden of proving the loss was due to the first carrier’s negligence in order to hold it responsible. In support of this proposition we are pointed to section 2870, E. S. 1899', which allows contribution among judgment defendants in an action for tort, to the same extent as such defendants in ah action founded on contract may have contribution. It is said if the first carrier is held responsible to the shipper without proof the loss was due to his negligence, section 2870 affords a remedy over against the carrier which was to blame; therefore it is argued the court reasoned unsoundly in Blaekmer, etc., v. Eail-road, that if the first carrier is held answerable in an action wherein it is joined with others, without proof the loss was due to its fault, it would be deprived of a remedy against the carrier in fault. What application section 2870 has to the point we fail to perceive. Said *375section only allows contribution among defendants in a tort case who have been held liable as joint tort-feasors. The redress contemplated in section 5222, before it was amended, was that if the initial carrier was held liable, when innocent, and hence not a joint-tortfeasor, it conld recover against the carrier who was in fault. The one statute contemplates contribution among two or more wrongdoers, and the other contemplates indemnity to an innocent carrier which has been held responsible for a loss. As said in the Blackmer-Post Pipe Company case, the amendment was, perhaps, so framed as to frustrate, in some measure, the policy of the statute, but we still think its language is such as to preclude any other interpretation than the one given to it in said case. It should be borne in mind the shipper may still confine his action to the initial carrier and get all the redress the statute afforded prior to the amendment; but if he chooses to unite several carriers in the action, he must do so cum onere; that is, take on himself the burden of proof imposed by the amendment;
The motion for rehearing is overruled.
All concur.