(concurring). I concur that the appellant should lie held liable for the destruction of the property contained in car numbered 1,004, and this because he had not divested himself of his liability as insurer by delivery of the car and its contents to the next succeeding carrier. The owner or shipper of goods to be carried over connecting lines of railway is entitled to the protection afforded by the common-law liability of a carrier until the goods have arrived at their destination, and a reasonable time has elapsed after their arrival to accept delivery of them; and, with respect to connecting lines, each carrier assumes the responsibility of an insurer while the goods are in transit over its particular line, and until delivery to the next succeeding carrier. Railroad Co. v. Manufacturing Co., 16 Wall. 318; Railroad Co. v. Jones, 155 U. S. 338, 339, 15 Sup. Ct. 136. What shall constitute a delivery which relieves the one carrier from, and imposes upon the succeeding carrier, the burden of an insurer of the property in transit, has been the subject of some contention in the *82courts. The result of the discussion has been, as I think, to establish a rule that is at all times protective to the shipper or owner, and imposes the burden of insurer upon the carrier, with whom it should properly be lodged. No better expression of the rule can be found than that declared by the supreme court of Alabama (Clopton, J., delivering the opinion) in Mt. Vernon Co. v. Alabama G. S. R. Co., 92 Ala. 296, 298, 8 South. 687:
“Tlie duties and obligations of tbe common carrier do not commence until there lias been a complete delivery of tbe goods — until they are placed in his custody, and under his exclusive control, — for immediate transportation. Though the goods may be delivered, if transportation is to await shipping orders or directions, or some act to be done by the consignor before they are forwarded, or if they cannot be at once put in transitu, becau.se of the failure of the shipper to give shipping orders or directions, the carrier is liable only as bailee until such orders and directions are given, or until he is informed to what place the goods are to be forwarded, and to whom delivered. The strict responsibility of a common carrier arises concurrently with the duty of immediate transportation, and this duty does not arise so long as anything remains to be done by the consignor before the goods can be intelligently started on the route to their destination. Barron v. Eldredge, 100 Mass. 455; O’Neill v. Railroad Co., 60 N. Y. 138; Hutch. Carr. §§ 3282-3288. The same rule is applicable in the case of connecting carriers. The responsibility peculiar to the common carrier is not devolved on the next connecting carrier until the receiving carrier has delivered the goods to the former, with directions for their shipment, — the place of destination, and to whom consigned. Until this is done the relation of common carrier is not established between the shipper and the connecting carrier.”
The facts iu that case are similar to those in the cases under consideration. The East Alabama Railway Company received certain cotton, and issued a bill of lading for through transportation from Gadsden, Ala., to Mt. Vernon Switch, Md., over its own and connecting roads. The receiving carrier transported the cotton from Gadsden to Attalla, at which place the lines of the two companies connected; and the car containing the cotton was placed upon a side track of defendant, — the East Alabama Railway Company having no side track at that point. No notice was given to defendant’s agents at Attalla that the cotton was placed on a side track for through shipment, nor was there any name or address of the consignee, nor any waybill or shipping directions, sent with the cotton, or to the agent of defendant, until after the cotton was burned, which occurred during the night of the third day after its arrival at Attalla. It was held that there had been no delivery, and that the liability of insurer had not been assumed by the defendant company. See, also, Reynolds v. Railroad Co., 121 Mass. 291; McDonald v. Railroad Corp., 34 N. Y. 497; Condon v. Railroad Co., 55 Mich. 218, 21 N. W. 321; Conkey v. Railway Co., 31 Wis. 619. The result of this rule is that before a delivery can be deemed completed the succeeding carrier must be invested by the preceding carrier with the possession and exclusive control of the property, and that for immediate transportation. The liability of the succeeding carrier commences only when that of the preceding carrier has terminated. A delivery is not consummated by merely placing the car upon the tracks of the succeeding carrier; for such-carrier is not by that act informed of the destination of the car, and cannot, therefore, give it immediate transportation. The delivery of a bill of lading or waybill without delivery of possession would confer, *83at most, only a right to ultimate possession (California Ins. Co. v. Union Compress Co., 133 U. S. 387-415, 10 Sup. Ct. 365), and would not impose upon the succeeding carrier the liabili tv of an insurer until delivery of actual and exclusive possession and control. Railway Co. v. Knight, 122 U. S. 79, 93, 7 Sup. Ct. 1132; St. Louis, I. M. & S. Ry. Co. v. Commercial Union Ins. Co., 139 U. S. 223, 11 Sup. Ct. 554; Railway Co. v. McFadden, 151 U. S. 155, 160, 11 Sup. Ct. 990. So, also, the mere physical possession, without shipping directions, would uoi. impose such liability, although the company might be liable for ¡he goods as bailee, because the goods must be delivered into the earner's exclusive possession and control, for immediate transportation, and the duty of immediate transportation could not arise until the delivery of proper shipping directions. There must concur the possession and exclusive control, and the necessary directions essential to immediate transportation, before the character of insurer can attach to the connecting*carrier. Until these conditions have been performed by the delivering carrier, he is not absolved from liability as insurer. In the eases before us it appears that the appellant was without yard faciliiies or switching engines at the end of his line at East St. Louis. Under contract with the terminal association, the latter undertook, for a consideration stated, to furnish him with yard facilities and with switch engines to break up his incoming trains, and to place his cars upon certain designated tracks belonging lo the terminal association, there to await further directions with respect to their destination. The terminal association had no means of knowing the destination of the cars until such further directions were given. This’ was accomplished by means of the delivery of. waybills stating the name of the consignee and the place of destination. In doing this work of switching and placing the cars, the terminal association acted as the agent of and for and in behalf of the receiver. While the cars so stood upon the designated tracks they were in the possession and under the control of the receiver, and not of the terminal association. A completed delivery could only be made, according to the usual course of business between the two lines, by the delivery of a waybill indicating the destination of the goods, the amount of advance charges, the name of the consignee, and talán?- receipts for them. Then, and not until then, was the terminal association invested with the possession and exclusive control of these goods. Then, and not until ¡hen. was the duty of immediate transportation imposed. This was the uniform course of business between the connecting carriers, concerning which there is no disputation in the evidence, fortified by the fact that the receiver’s company, accustomed to make daily reports to other companies of delivery of their cars to connecting carriers, did not report such cars as delivered until waybills had been given to the terminal association, and its receipts taken for the cars. The initial placing of the cars by the terminal association upon its tracks under its contract with the receiver’s company was merely the act of an agent performing for ihe principal a duty devolving upon him, and which he was unable to perform except in that way. It wa.s the act of the receiver by his agent, and was not a delivery of the car for transportation to a succeeding carrier.
*84As I read the case of Pratt v. Railway Co., 95 U. S. 43, the facts being considered, it is in full accord with the position here assumed. Without doubt the custom of business established between two connecting carriers may largely control in the application of the rule, since such custom may determine the agreement of the carriers with respect to acts which shall constitute a delivery. In that case, as not here, the goods were placed within the exclusive control of the succeeding carrier. There the presence of the goods in the precise locality agreed upon for the deposit of goods for transportation over the lines of the succeeding carrier, with the address of the consignees upon them, sufficiently indicated that they were for transportation over its line of railway. Not so here, for the cars were placed upon tracks set apart for the accommodation of the receiver, and the terminal association was without knowledge of consignee or destination of the cars, or whether they were to be transported over its line at all. There the goods were deposited by the one party, and received by the other, for transportation. Not so here, because the car was placed by the terminal association under its contract for the accommodation of the receiver, and without further direction it was not possible for the terminal association to know whether the car was foi; transportation at all over its lines, or whether it should be transferred to the Wiggins Ferry Company. There, by the custom of business, it was the duty of the succeeding carrier, with respect to goods deposited in the particular place for transportation, to call upon the preceding carrier for waybills. Not so here, for the duty of delivering a waybill was cast upon the receiver. There the liability as insurer was denied because the goods had been delivered to the succeeding carrier for proper carriage.
• I am of opinion that the like rule should be applied with respect to the car loads of barley consigned to parties in the city of St. Louis, un-' less the liability of insurer had been interrupted by some act of the consignor or consignee. It will be observed that the transit of the barley was not ended upon the arrival of the cars at the end of the receiver’s line of road at East St. Louis. It was still to be transported over other and connecting lines to its destination. The barley was still in transitu. The record discloses that it was the custom of the receiver, with respect to goods consigned to the city of St. Louis, upon their arrival at East St. Louis to give immediate notice to consignees, and take their directions to what^part of the city of St. Louis the goods should be forwarded, and by what line, — whether by the lines of the terminal association, or by the lines of the Wiggins Ferry Company, two rival companies, whose' lines of railway connected with the road of the receiver. The master’s report in the principal case states “that no notice was sent to the owner, shipper, or consignee, of the arrival of said cars at St. Louis, or of the delivery of them to the terminal railroad.” The appellant has cast upon him the burden of showing that he has fulfilled his contract of carriage; that upon the arrival of goods, according to the custom of business, he had notified the consignees, and taken their directions with reference to the further carriage of the goods. It is not shown that this notice was given, and the master reports that it was not. This phase of the case, however, need not be dwelt upon; for, assuming that notice had been given, *85and no instructions received within a reasonable time, the liability of the receiver as a common carrier was discharged, hut liability as warehouseman was assumed. The goods were still in his custody and under his control. They had not been delivered to the terminal association for further carriage, or for any other purpose. The cars were placed upon the tracks designated as the yard tracks of the receiver, and were there for his accommodation. The terminal association had no control over them. It was not advised of the destination of those cars, or of the consignees. Until such advice, it could not rightfully take possession of them, nor rightfully transport them, nor safely deliver them. They might be for transportation over the Wiggins Ferry Company, its rival; and the terminal association was bound by its contract: with the receiver to furnish switch engines for the transportation of those cars, and their delivery to the Wiggins Ferry Company, when so ordered. If, in the case supposed, the receiver held them merely as warehouseman, he is still liable, for bis answer asserts that the cars were placed in close proximity to a "veritable Are trap”; so (hat, whether the receiver is to he regarded, with respect to his obligation, as insurer or as warehouseman of these goods and these ears, he is liable for their desí rue! ion.
It is held by tbe presiding judge that by reason of a ceriain supposed agreement between consignees in St. Louis and (he terminal association, to the effect that the latter, as an inducement to barley dealers to ship over its lines, would hold cars containing shipments to such consignees on the tracks of the terminal association at East St. Louis, the i oceiver was absolved, and liability under such agreement imposed upon ihe terminal association, so soon as these cars had, under the contract with the receiver, been placed upon ihe tracks designated for (he accommodation of tbe receiver’s cars. I am unable to concur in this conclusion. 1 have sought to show that (here had been no delivery of these cars to the terminal association. It had not knowledge of their destination. It liad not knowledge of the consignees of them. They were subject to the direction and control of the receiver. The terminal association, under its contract with the receiver, had placed these cars upon these tracks for the receiver, and for a compensation agreed upon. It therein was the agent of the receiver. It could not know whether these cars were to he transported over its line, or the lines of the Wiggins Ferry Company. It could not know in what dired ion they were to be transported, or their ultimate destination. When it had placed the cars on these tracks pursuant to its contract with the receiver, it had nothing further to do with them until the receiver had dispossessed himself of possession and control, and had invested the terminal association therewith. I cannot comprehend that the general agreement between the terminal association and consignees can become operative, with respect to the contents of these ears, until delivery to the terminal association, and it had been invested with the exclusive possession and the exclusive control of them. The force of the reasoning is not perceived, whereby it is held that, because in fact these goods were ultimately to go to persons who bad contracted with tbe terminal association, — of which contract the receiver had no knowledge, — therefore these goods were held under that con*86tract before delivery in fact to the terminal association, and. before it was invested with exclusive control of them. I do not undertake to say that the terminal association may not be liable to the receiver for its negligent acts causing the fire whereby this property was destroyed. Neither the question nor the party is before us. The question here is whether the receiver is absolved from liability; whether, failing a delivery of the cars to the terminal association, failing a surrender by the receiver of control over them, with ignorance upon the part of the terminal association of their destination or their consignees, the agreement between the terminal association and the consignee had become operative with respect to these goods. I think not. If the receiver had directed that the terminal association, under its contract with him, should transfer these goods to the Wiggins Ferry Company, his order must have received recognition and have been carried out by the terminal association; and it cannot be doubted that up to the time of the fire in question the goods were so subject to the receiver’s direction and control. For these reasons I think that the decrees appealed from should be affirmed.
SHOWALTER, Circuit Judge.The failure of appellant touching any obligation on his part to give proper shipping directions to the connecting carrier is not set up as a ground of action in any one of the petitions. The cause of action alleged in each is that he was a common carrier, and that the property therein specified, which was negligently or accidentally destroyed by fire, was at the time of such destruction still in his possession as bailee for carriage. Counsel for appellees say:
“The pleadings raise a single issue: Were the cars and their contents, at the time they were destroyed, in the possession of appellant, as receiver of the Chicago, Peoria & St. Louis Eailroad Company, or had they been delivered by him to the next succeeding carrier, the Terminal Eailroad Association of St. Louis? Appellees claim that the cars and their contents had not been delivered to the terminal railroad association at the time of the fire, but were in the possession of appellant, while appellant contends that he had made a delivery of them, and therefore is not responsible for the loss and damage which the fire caused. The sole question for decision, therefore, is, had there been a delivery of the cars and their contents by appellant to the terminal railroad association at the time of the fire?”
Referring to all the cars in question, other than the one mentioned next below in this opinion, they say further:
“These cars and their contents having been consigned to St. Louis, a point beyond the end of the receiver’s route, the duty of the receiver was, when he received them into his possession at Peoria, to carry them safely to Bast St. Louis, the end of his road, and there deliver them to the terminal association, the next succeeding carrier.' The obligation to safely deliver these cars and their contents to the terminal association was just as imperative as the obligation to carry them safely, and until he made such a delivery he held this property as a carrier.”
On October 20, 1894, tbe Carr, Ryder & Engler Company, a corporation of Dubuque, Iowa, delivered to the Chicago, Milwaukee & St. Paul Railway Company a quantity of doors, sashes, and blinds, loaded in a car numbered 1,004, which belonged to the Rock Island & Peoria Railway Company. This freight was consigned, by way of *87East St. Louis, to the May & Thomas Hardware Company, Birmingham, Ala. The Chicago, Milwaukee & St. Paul Railway Company hauled this ear to Rock Island, Ill., and there delivered it to tin; Rock Island & Peoria Railway Company. This laller company hauled Hie car to Peoria, and there delivered ii: to the Peoria & Pekin Union Railway Company. By this latter company Pie car was taken io Pekin, Ill., and diere delivered to Hi its appellant receiver, operating the road of the Chicago, Peoria & St. Louis Railway Company, who hauled the same to a point immediately beyond die terminus of his own rails at East St. Louis, and on (he rails of die Terminal Railroad Association of St. Louis; reaching that point about 3 o’clock on (he afternoon of October 28, 1894. Servan Is of the Terminal Railroad Association of St. Louis, in the usual course of their employment by that company, then hauled (he car to a certain customary halting place on the premises of their employer; using for the purpose an engine which belonged to their employer. Here they left said ear stationary till the evening of that day, when it was destroyed by fire. In the usual course of business the terminal association, after obtaining from the receiver a waybill or memorandum indicating the ultimate destination of said car, would have hauled the same over its own rails in East Rt. Louis, or over rails subject to Its control for that purpose, and delivered the same to a carrier on whose line (he transit south was to continue. When the initial carrier, the Chicago, Milwaukee & St. Paul Railway Company, received this car, ii gave a receipt to the shipper, containing certain terms and conditions expressly applicable to the transit over its own line. Each intermediate and connecting carrier took the car, not by virtue of any express contract witli the shipper or consignee, but of its legal obligation as a carrier to accept and carry, and safely deliver at the end of its line to the next succeeding carrier. The appellant here is not liable for the loss of the car by any express contract with the shipper or consignee. From the standpoint of the shipper or consignee of car 1,001, the terminal association, was a connecting carrier to haul the car from the terminus of appellant’s rails to the point in or near East Rt. Louis whence the next succeeding carrier would take it south. Appellant was bound for the safety of the car until it went into the care of the terminal association. Appellant was also required to indicate to the terminal association the destination, and possibly (he route selected south from East Rt.'Louis. This information would be given by means of a memorandum called a “waybill.” The strong contention by appellees is that, because no waybill was tendered by appellant to the terminal association before (he destruction of the car, appellant must be deemed in possession at (he time of the loss’; in other words, that the terminal association could not be treated as in possession until it had received the waybill. The terminal association, as said, in,fact took, and at the time of the loss had, the custody and care of the property. Ro far as appears, the haul over its tracks from the point where appellant’s servants parted from the car to the point where the loss occurred, was a portion of the transit to be made, in any case, no matter what the ultimate destination of the car might be. For the purpose of moving the car thus far, the *88information as to the ultimate destination which a waybill would have given was not needed. It does not appear that the lack of such information contributed in any way to the loss. It does appear that, in the peculiar carrying business conducted by the terminal association, the car in question would remain for a time stationary, and thereafter be hauled, probably with other cars grouped for the purpose, to the starting place of the carrier who was to take it south. Information as to the ultimate destination and route had not as yet been actually imparted by appellant to the terminal association. But the latter was content for the time being to treat such information then in the possession of appellant as sufficiently available to itself. The theory that appellant remained constructively bailee for carriage, it is fair to say, is urged in connection with a document showing certain contract relations between appellant and the terminal association. The first, fourth, and fifth sections of that document have been quoted in the opinion of the presiding circuit judge. The preamble is in words following:
'“Wliei’eas, the party of the first part undertakes to give the party of the second part terminal facilities at East St. Louis, Illinois, for the handling of its trains, care of its engines and cars, ap'd the handling and care of its freight, under the following terms and conditions,” etc.
The second and third, sections and the last paragraph, being the remainder of the contract in question, are quoted below:
“Second. Oars made ‘bad order’ by and during the making up .and breaking up of trains of the party of the second part to be repaired by the party of the second part, and the party of the second part shall furnish its own car inspectors. All cars made ‘bad order’ outside of the yards set aside for the use of the party of the second part shall be repaired by the party causing the damage. Third. For all loads to and from the National Stock Yards, the party of the second part is to pay the party of the first part one (1) dollar per car in and out, inclusive of the charge for making up and breaking up of trains, but not the track-age charge at National Stock Yarks. This contract to be in force from and after the 1st day of August, 1892, and to continue for six months from that date, and to be renewed from time to time, as desired, at the expiration thereof, if satisfactory to both parties.”
No yards, nor any special place or territory in any yards, were “set aside” by the terminal association “for the use of” the receiver, in the sense that he exercised any dominion over, or had any possessory right to, the same. The servants of the terminal association may have been accustomed to haul cars from the receiver’s road to some special territory in the yards of the terminal association, and that territory may for the time being have been “the yards set aside for the use'of” the receiver, within the sense of the second section of the contract. But said servants did not do this .by any direction from the receiver; nor wras any right in him to direct or control them, or to designate the place on the grounds or rails of the terminal association where any car received from his road should be at any given time, in any way recognized. This was the construction given to the contract and acted on by the parties. The document in question was not a conveyance. I do not find in it any transfer of any estate in its grounds or tracks, or any part thereof, or of any possessory interest in its engines, or control over its servants, from the *89terminal association to the receiver. That the receiver had no such interest or estate is more obvious here than that in Pratt v. Railway Co., cited below, the Grand Trunk Railway Company had no proprietorship of any kind over any part of the si at ion house of the Michigan Central Railway Company. The fifth paragraph of the contract apparently licenses the receiver to enter the premises of the terminal association to look after such of his engines as may be them for the time being. But the receiver had no possessory estate of auv sort in any part of the property of the terminal association.
A shipper who sends freight over a given line of road, whether operated by a single carrier, or by independent and connecting carriers, has the right to needful terminal facilities for unloading his goods. In paying the freight charge, he pays for such facilities, if in ids case they are needed. But what carrier provides them is, from his standpoint, an immaterial matter. If the goods are carried to the neighborhood of the place of destination by one carrier, and the terminal facilities made use of there to haul the goods from the terminus of such carrier’s rails to the place of destination, or to a new starting place for furl her transit, are provided by another, the freight charge to the shipper will be the same for the two as if both the road of the iirst carrier, and the property, rails, fixtures, and equipment of the second, belonged to a single carrier. Assuming that the rails of this receiver terminated at a point in East St. Louis, but that at this point they connected with the rails of the terminal association, and that the latter company owned or possessed terminal facilities, and a system of what may be called intramural roads, by which it hauled cars to points in Si. Louis, and to the termini in and about St. Louis or East St. Louis of the roads of various other carriers leading from ■these cities in different directions, and that the terminal association was in the business of receiving and hauling freight over its lines to oilier lines, and to various points of ultimate destination in the neighborhood, then the terminal association would be a connecting carrier, and would be subject to all rules of law governing that business. The case of Walker v. Keenan, 34 U. S. App. 691, 19 C. C. A. 668, and 73 Fed. 755, concerned the matter of terminal facilities. Counsel for the defeated party in that case made application to the supreme court of the United States for a writ of certiorari. The sole matter of controversy was the true meaning and significance of the Covington Stock Yards- Case, here called to our attention by appellees’ counsel, and referred to below in this opinion. The certiorari wras denied. 164 U. S. 706, 17 Sup. Ct. 1002. A contract between tills appellant and thé terminal association regulating the charges which the terminal association might receive for the business done by it on its own road is nothing more than a division of the freight charge between the two connecting carriers. As said above, the shipper pays no more than if the appellant had himself owned and operated the lines of the terminal association. Such a contract could not interfere with or modify the legal obligation of either carrier to a shipper whose goods are handled successively by both. Neither appellant nor the terminal association could evade or alter any legal obligation to a third party by any contract between themselves. If *90the terminal association had alienated to appellant an actual ownership or possessory right over that portion of its tracks where the cars in controversy were destroyed, and such a control over its employés and engines that said employés when engaged in handling the cars in question were the servants of appellant, and the engine used by them his engine for the time being, the case would be different. On this hypothesis the tracks where the cars were destroyed would have been appellant’s tracks, the employés who hauled the cars to that point his servants, the engines used by them his engines. He would have continued to be the bailee of the property, and the matter of waybills or junction reports would have signified nothing. But in my judgment, as said, the contract in question had no force as of alienation by the terminal association to appellant of any possessory right, interest, or estate in or over any property of the former company, or of any control over its servants. Neither the relation of lessor and lessee, nor that of licensor and licensee, existed between these parties, as resulting from said contract, so far as it concerned the cars and contents in question.
In the Covington Stock Yards Case, 139 U. S. 128, 11 Sup. Ct. 461, it was ruled, in effect, that a carrier bringing cattle to a consignee who had provided himself with structures connecting his yards with the railroad track, whereby cattle might be unloaded directly from the cars into his yards, could not refuse to unload the cattle of such consignee into the yards, and by means of the appliances provided by him, for the mere purpose of compelling him to pay a terminal fee at the cattle yards provided by the company, or provided by an independent corporation. This case, as I conceive, has not here the application and significance suggested by counsel for appellees. Of the cars in question, one was to go to Birmingham, Ala.; the others, loaded with barley, to different points in and about St. Louis, as directed by the consignees. Appellant did not engage to furnish unloading facilities for these cars. He was under no obligation to these appellees to provide terminal facilities for unloading. He handled the cars and freight as an entirety. So far as concerns any one of the cars here in question, when the terminal association took possession the appellant, as a carrier or bailee, no longer had any control. No one of these cars would again come into his custody, unless the owner of such car, or of the property the'rein contained, should see fit to reship the same back over his road. Appellant had brought the cars in controversy safely to the end of his line, and the terminal association had hauled them over its tracks to the place of loss. Appellant had ceased to be bailee of these cars, or any of them, and the terminal association had become such bailee. The terminal association had voluntarily accepted all these cars from appellant, knowing them to be at the time of such acceptance in transit. They were upon the tracks of that company, and would be moved thereafter by that company, by its servants using its engines, and over its tracks, or over tracks under its control for that purpose. It matters not that the information upon which the latter company would act in the further transit of car 1,004 was still to come from appellant, or that the information touching the different points in St. Louis where the cars *91of barley were wanted by the consignees might also come through appellant. Ultimate shipping directions, as between appellant and the terminal association, were regulated by an understood course of dealing between them. Such a car, for instance, as 1,004, would in any case, and by reason of the peculiar character of the carrying business conducted by the terminal association, remain for a time stationary on its iiranises. It mattered not whether the ultimate shipping directions were contemporaneous with the delivery, or some hours later. Following the custom which had prevailed between the two carriers, appellant had not at the time of the loss sent ihe ultimate shipping directions. But for the destruction of this car, appellant would have giveii the shipping directions within ample time to suit ihe convenience of the terminal association in moving the ear on to the starting place of the next succeeding carrier. Buck shipping directions as appellant was able to give concerning any of these cars were at all times available to the terminal association. Concerning some of the cars consigned to parties in St. Louis, the evidence seems to show that by arrangement between the consignees and the terminal association the place on the premises of the company where the loss occurred might be, or might become, the place of final destination.
As between an intermedíale and a, connecting carrier, that one, I take it, 'which was in fact bailee of the goods when the loss occurred, is answerable to the owner. The owner is not required to work out theories of constructive possession, or of constructive nondelivery, resting on some understanding or mode of dealing between the two which he might have difficulty in finding out or proving. But' the method or course of dealing whereby an intermediate carrier conveys shipping directions to a connecting carrier is a different matter. It is due to the owner that such directions be given, so that his goods may go on, and’without needless delay. If this requirement be answered, I do, not see how the owner is concerned with the method or custom of dealing on that matter which the two carriers find convenient. As between the owner or shipper and the initial carrier, goods are not in transit until the destination has been made known, so that tiie transit: may commence. But, when goods are once in transit:, then, barring exceptional circumstances not necessary to the discussion, they remain in transit until the final destination is reached, and some one carrier in the line of connecting carriers is always subject to the obligations of a bailee for carriage. A connecting curlier may receive and load into his own cars goods which he knows are to be carried by him, and thereafter take from the preceding carrier the shipping directions. He may even carry such goods to a specified point on his own road, to which he knows they must be carried iu any event, and there receive the shaping directions. If he be content with such a course of dealing between himself and the previous carrier on the matter of shipping directions, I do not see why he did not become bailee for carriage when he received the goods, why the delivery by the preceding carrier was not then complete, or how the owner could sustain any hurt from such method of dealing between the two carriers. In Pratt: v. Railway Co., 95 U. S. 43, the goods had been shipped from Liverpool to St. Louis. The packages were marked, *92“P. & F., St. Louis.” The goods were carried by the defendant, the Grand Trunk Railway Company, from Montreal to Detroit, and there they were destroyed by fire. On a state of facts as quoted in full below, delivery to the connecting carrier, the Michigan Central Railroad Company, was predicated, and the defendant held clear of liability:
“At the time the fire occurred the defendant had no freight room or depot at Detroit, except a single apartment in the freight depot of the Michigan Central Eailroad Company. Said depot was a building several hundred feet in length, and some three or four hundred feet in width, and was all under one roof. It was divided into sections or apartments, without any partition wall between them. There was a railway track in the center of the building, upon which cars were run into the' building, to he loaded with freight. The only use which defendant had of said section was for the deposit of all goods and property whieh came over its road,’ or was delivered for shipment over it. This section, in common with the rest of the building, was under the control and supervision of the Michigan Central Eailroad Company, as hereinafter mentioned. The defendant employed in this section two men, who checked freight which came into it. All freight whieh came into the section was handled exclusively by the employes of the Michigan Central Eailroad Company, for which, as well as for the use of said section, said defendant paid said company a fixed compensation per hundredweight. Goods which came into the section from defendant’s road, destined over the road of the Michigan Central Eailroad Company, were at the time of unloading from defendant’s ears deposited by said employes of the Michigan Central Eailroad Company, in a certain place in said section, from which they were loaded into the cars of said latter company by said employes when they were ready to receive them, and after they were so placed the defendant’s employés did not further handle said goods. Whenever the agent of the Michigan Central Eailroad Company would see any goods deposited in the section of said freight building set apart for the use of the defendant, destined over the line of said Central Eailroad, he would call upon the agent of the defendant in said freight building, and from a waybill exhibited to him by said agent he would take a list of said goods, and would then, also, for the first time, learn their ultimate place of destination, together with the amount of freight charges due thereon.' That from the information thus obtained from said waybill in the hands of the defendant’s agent a waybill would he made out by the Michigan Central Eailroad Company for the transportation of said goods over its line of railway, and not before. These goods were on the 17th of October, 1865, taken from the cars and deposited in the apartment of said building used as aforesaid by the defendant, in the place assigned as aforesaid for goods so destined. At the time the goods in question were forwarded from Montreal, in accordance with the usage in such cases, a waybill was then made out In duplicate, on which was entered a list of said goods, the names of the consignees, the place to which the goods were consigned, and the amount of charges against them from Liverpool to Detroit. One of these waybills was given to the conductor who had charge of the train containing the goods, and' the other was forwardedsto the agent of the defendant in Detroit. On arrival of the goods at Detroit the conductor delivered his copy of said waybill to the checking clerk of defendant in said section, from whieh said clerk checked said goods from the cars into said section. It was the practice of the Michigan Central Eailroad Company before forwarding such goods to take from said waybill in the custody of said checking clerk, in the manner aforesaid, the place of destination and a list of said goods, and the amount of accumulated charges, and to collect the same, together with its own charges, of the connecting carrier.”
It will be seen from the foregoing statement that on the course of dealing between the two carriers shipping directions had not been received by the connecting carrier. The court mentions the mark on the goods, but not as a controlling factor in the decision. The Michigan Central Railroad Company did not look at the marks on the goods for the shipping directions upon which it acted. Under the *93mode of dealing between the two carriers, the case was the same as though there had been no marks on the packages. The goods were on the platform of the connecting carrier at the time of the loss. The defendant did not own of have any possessory right over that portion of the connecting carrier’s station house. Defendant’s servants were not privileged either to unload the goods there, or to handle the goods afterwards. The servants of the connecting carrier placed all goods which were to be forwarded, as identified by defendant’s checking clerk, at a particular locality on the platform in question. The defendant ceased to be, and the connecting carrier became, the bailee of the goods; and this before the shipping directions had been given by the one carrier to the other according to the understood mode of dealing between them. This was a case in which the defendant did not own or possess the unloading platform. If the defendant had owned or possessed that section of the station where the goods were unloaded, the mere placing the goods in controversy at a particular locality on the platform, from which the servants of the connecting carrier would afterwards, without special license from the defendant, take them, would not have changed the custody of such goods. The law upon this point is clear. Ñor would the connecting carrier have become bailee, even if its agent had received the shipping directions before the destruction of the goods. The fact that the goods were still in the custody of the defendant would, from the standpoint of the shipper, have determined the matter. I may add that the Grand Trunk Railway Company had no terminal (that is to say, unloading) facilities at Detroit, so far as concerned the owner of the goods in question. The section of the station in which the freight of the Grand Trunk Railway Company was unloaded wTas owned and possessed by the connecting carrier. In the case at bar. the connecting carrier not only took exclusive possession of the cars in controversy at the terminus of appellant’s rails, but hauled them to a point on its own rails to which appellant had, neither in law nor by contract, even a right of access. In Conkey v. Railway Co., 31 Wis. 619, the defendant carried goods marked with the name of the consignee, and with the place of destination, “Preston, Minn., via La Crosse & Lanesboro,” from Milwaukee to La Crosse, and there unloaded the same into its own station or freight house. From the latter point the goods were* to be taken by the connecting carrier, the Southern Minnesota Railroad Company. These goods were deposited upon a certain portion of defendant’s premises, from which, according to the course of business between the two carriers, the connecting carrier would take them without further notice or request. So far as appeared, the connecting carrier, knowing that the goods so placed were for transit over its road, looked only to the marks on such goods for further shipping directions. The connecting carrier failed to remove the goods in question, and they were destroyed by fire. The court ruled that defendant was still the bailee for carriage, and so answerable to the owner for the loss. In this case there was no lack of shipping directions, and on the course of dealing between the two carriers the defendant would not again have handled the goods. But they were still on defendant’s premises. The custody or possession in fact had not *94passed to the connecting carrier. In Mt. Vernon Co. v. Alabama G. S. R. Co., 92 Ala. 296, 8 South. 687, the place of junction between the connecting carriers was Attalla. The car in question -was laden with cotton brought to Attalla over defendant’s road, and there placed by defendant’s servants on a side track belonging to the connecting carrier, whence the latter was expected to move it on towards the place of ultimate destination. No notice of this was given to the connecting carrier, and the car while so placed was destroyed by tire. Defendant undertook unsuccessfully to prove that, by a course of dealing between itself and the connecting carrier, the latter was accustomed to receive on said side track, and haul over its rails to the Chattanooga Compress, cars laden with cotton, and there await the waybill, or ultimate shipping directions. The court was evidently of opinion that, if the car in question had been so taken .and hauled to the Chattanooga Compress, it would have been delivered, but suggested that such a course of dealing would have been tantamount to a shipping direction to the connecting carrier to haul the car as far, at least, as the Chattanooga Compress. So in the case at bar the terminal association knew that each of the cars in controversy Was to be hauled over its own rails, in any case, as far as to the place of loss. For that much of the transit over the rails of the terminal association no special shipping directions were needed; and whether that company received, before or after the haul to the.place of loss, the waybill indicating the ultimate destination of the car, was, on its peculiar method of business, and course of dealing with appellant, an immaterial matter. From the ruling of this court that appellant must be held for the loss of the car numbered 1,004, consigned to Birmingham, I dissent. I concur in the conclusion that the decree against appellant as to the barley and the destroyed cars be reversed.
It is ordered by the court that the decree in case 454 be affirmed, and that the decrees in the other cases numbered 442, 452. and 453, in favor, respectively, of the Chicago, Milwaukee & St. Paul Railway Company, Jacob Rau, and the Huntting Elevator Company, be reversed, and the causes remanded, with direction in each case to dismiss the petition.