#### John M. Gallagher and Maurice Ascher, copartners, trading as Gallagher & Ascher, Appellants, v. Grand Trunk Western Railway Company, Appellee.

Gen. No. 22,607.

(Not to be reported in full.)

Appeal from the Municipal Court of Chicago; the Hon. Jacob H. Hopkins, Judge, presiding. Heard in this court at the March term, 1917.

Reversed and judgment here.

Opinion filed October 2, 1917.

Rehearing denied October 15, 1917.

Statement of the Case.

Action by John M. Gallagher and Maurice Ascher, copartners, trading as Gallagher & Ascher, plaintiffs, against the Grand Trunk Western Railway Company, the terminal carrier, defendant, to recover damages due to the freezing of canned tomatoes in transit. *317From a judgment against them for costs, plaintiffs appeal.

Abstract of the Decision.

1. Carriers, § 189 * — what is liability of carrier of interstate shipment. Every carrier connected with an interstate shipment is liable for damage or loss to the property so received or transported, caused by its own negligence.

2. Carriers, § 189* — when bill of lading of interstate shipment construed as contract of connecting carrier. The bill of lading for an interstate contract issued by an initial carrier is to be construed, under the provisions of the Carmack Amendment to the Interstate Commerce Act, as the contract of the connecting carrier.

3. Carriers, § 197* — when action for breach of contract may be maintained against terminal carrier. An action for breach of contract for failure to properly transport and deliver goods, instead of an action in tort only, may be maintained against a terminal carrier, where goods are received by the consignee in a frozen condition, since the contract of the initial carrier is. the contract of the terminal carrier.

4. Carriers, § 196*- — when evidence shows receipt of canned goods by terminal carrier in unfrozen condition. In an action for breach of contract by a consignee against a terminal carrier for failure to transport canned tomatoes in safety, where it appeared that ten per cent, of the goods were examined by the federal authorities at an eastern port, to which they had been shipped from a foreign country, and found to be in good condition; that goods in the cases would not freeze unless' exposed to a temperature of 6° Fahr. or lower, and that the initial carrier delivered bills of lading which recited that the goods were in apparent good order, evidence held sufficient to sustain a finding that the goods were not frozen at the time of their receipt by the terminal carrier from an intermediate carrier.

Baker & Holder, for appellants.

L. L. Smith, for appellee.

*

See Illinois Notes Digest, Vole. XI to XV, and Cumulative Quarterly same topic and section number.

Mr. Justice Dever

delivered the opinion of ’the court.

*3185. Carriers, § 199* — when hill' of lading is prima facie proof of condition of goods at time of receipt hy initial carrier. Bills of lading issued by an initial carrier reciting that the goods are in apparent good order are prima facie proof of the condition of the goods at the time they were received by the initial carrier, for shipment, in an action by a consignee against a terminal carrier for breach of contract in failing to transport the goods safely.