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that she owned one horse, one cow and calf, and a few chickens, and no other stock whatever; that she has no ready money and no available means with which to make her defense.

allowance, filed by appellant, it is shown | niture which she took with her when the that at the time of their marriage he owned separation occurred belonged to appellee; 80 acres of land then worth $45 an acre; that when appellee's father's estate was settled she received therefrom $2,400, and that appellant at that time bought 120 acres of land towards the purchase of which she gave her inheritance, and that some time thereafter he conveyed to her 50 acres of the land so purchased, and that it was then worth $100 an acre, exclusive of timber on it, which timber, it was stated, appellee had sold about three years before the application for allowance for $3,000, and had also sold wood to the amount of $500; that during the time they lived together appellee had the income from the milk, poultry, and garden produce, amounting to about $6 a week; that in addition to this she had horses and cattle to the value of $400 or $500; that appellant paid appellee the $1,000 allowed her on the separation and the $20 a month for a period of two years; and that when she left him she took household goods of the value of $200. It is admitted that appellant owned at the time 150 acres of land worth $90 an acre, $400 worth of personal property, and $2,000 in money. It is averred that appellant is willing to join appellee in mortgaging or selling her land to raise money to make her defense.

To this appellee responded by a verified statement, in further support of her application, in which it is averred that she possessed certain personal property at the time of her marriage with appellant; that she inherited 40 acres of land which she held for four years, during which it produced $1,000, after which she sold it for $2,500 on four years' time, at interest; that all this money, amounting to $3,500 or more, together with $50 in cash which appellee received from her mother, and $50 the value of a cow belonging to appellee which appellant had sold, was used by appellant in the purchase of the 120 acres of land referred to, which was purchased when appellee was sick in bed, and appellant took the title in his own name; that this purchase was made about 20 years before, and appellant had the possession and profits of all of the land until in 1904, when he deeded appellee 50 acres of it in consideration for the money so received from her, and since then had received the income of the residue of the 120 acres; that appellee used what she received from the farm while she lived with appellant for the support of the family, including the purchase of clothing for herself, the children, and appellant. It is admitted that appellee did sell timber and wood off the 50 acres deeded to her to the amount of $3,300, but it is averred $1,500 of it was loaned and not available, as shown in her application for the allowance, and that the residue was used in settling the two daughters of the parties when married, and in necessary expenditures for herself; that the household fur

[1-3] Thus is disclosed the most sordid bickering between two who should long since have learned the lesson of mutual forbearance and should be spending together a placid evening of life in a peaceful common home. Perhaps, if a divorce should be inevitable, conditions are also shown upon which the just hand of a court of equity should be laid in making a proper division of property between the parties. But the question before us is whether, upon the facts disclosed, the allowance can be sustained. It seems to be the contention of counsel for appellant that in a divorce action a trial court has authority to grant suit money or temporary alimony to the wife only when it is shown that she has neither means nor credit with which properly to prepare her suit or defense for trial, and that, when it appears that she has some means or credit, an allowance is an abuse of discretion which this court will review. court will review. Such is not the law either under our statute or the common law. Our statute relating to the question before us provides: "Pending a petition for divorce, the court, or the judge thereof in vacation, may make such orders rel


ative to the expenses of such suit as will insure to the wife an efficient preparation of her case and a fair and impartial trial thereof." Section 1080, Burns 1908.

The right of alimony, whether pendente lite or permanent, is founded on the commonlaw obligation of the husband to support his wife and was recognized in ecclesiastical law. Subject to certain conditions, the wife is, in suits for absolute divorce, whether she be plaintiff or defendant, entitled upon application to temporary alimony where no statute provides for it. And it may be awarded notwithstanding statutes which give her control of her separate property and the benefit of her own earnings, although such statutes materially lessen the force of the reason upon which it is granted, and in such case the allowance is not made so much as a matter of course. It must be made to appear, as one of the essential conditions upon which the wife will be granted the allowance, that she has not sufficient means to provide for her own support adequately and to pay the expenses of properly preparing and prosecuting or defending the action. The ability of the husband to pay should also be made to appear. 14 Cyc. 743 to 761; 3 Am. & Eng. Encyc. of Pl. & Pr. pp. 139 to 156; 2 Am. & Eng. Encyc. of Law, pp. 99 to 114; 2 Bishop on Marriage, Divorce, and Separation, §§ 965, 978, 979. Whether the necessity for the allowance exists, and the ability of the husband to pay, as well as the

amount to be allowed, is within the sound | E. 1101; Sellers v. Sellers (1895) 141 Ind. discretion of the trial court to determine 305, 40 N. E. 699; McCue v. McCue (1898) upon the facts before it. This judicial discretion is, it is true, subject to review on appeal, but it will be interfered with only when a clear abuse of it by unfair and arbitrary action is shown. 14 Cyc. 749, 762; 2 Bishop on Marriage, Divorce, and Separation, § 936.

Although the fact that the wife has some property is a matter to be considered by the court in determining whether an allowance shall be made, as well as the amount of it, still, if it is not sufficient properly to support her and at the same time afford her the means to secure her an efficient preparation of her case and a fair trial without exhausting her own resources, an allowance is within the discretion of the court. 2 Am. & Eng. Encyc. of Law, p. 106; Hoffman v. Hoffman (1868) 7 Rob. (N. Y.) 474; Merritt v. Merritt (1885) 99 N. Y. 643, 1 N. E. 605; Rose v. Rose (1884) 53 Mich. 585, 19 N. W. 195; Campbell v. Campbell (1887) 73 Iowa, 482, 35 N. W. 522; Harding v. Harding, 144 Ill. 588, 32 N. E. 206, 21 L. R. A 310; Cooper v. Cooper, 185 Ill. 169, 56 N. E. 1059.

149 Ind. 466, 49 N. E. 382. Counsel for ap pellant rely upon the case of Kenemer v. Kenemer (1866) 26 Ind. 330, as sustaining their contention for appellant in this case, but we think a careful consideration of what was there involved and decided shows that it does not. A case might be presented to this court for review where the relative financial condition of the husband and wife was such that an allowance of temporary alimony or suit money to the wife out of the husband's estate would be an abuse of discretion, and the wife would be compelled to resort to her own estate for her support and expenses, even though she would be com pelled to sell or incumber part of it to do so. But we cannot say that the facts upon which the trial court acted in this case are of such a character.


The judgment is affirmed.

(181 Ind. 87) CLEVELAND, C., C. & ST. L. RY. CO. v. HAYES et al. (No. 21,616.) 1 (Supreme Court of Indiana. June 5, 1913.) APPEAL AND ERROR (§ 1040*)-HARMLESS




In an action for damages sustained by an interstate shipment of mules, where two paragraphs of the complaint were based upon the common-law liability and two upon a written contract of shipment, made an exhibit of such paragraphs, the sustaining of demurrers to paragraphs of the answer alleging nothing in addition to the facts disclosed by the contract itself, except that defendant's line did not extend to the destination of the shipment, and that the shipper routed the shipment after it left dewith the contract in evidence, these facts could fendant's line, was not reversible error, since, have been shown under the general denial, as Acts 1905, c. 547, providing that any limitation by contract of a carrier's common-law liability is a matter of defense which shall be specifically set up by answer, and which shall not be provable under a general denial, is superseded as to interstate shipments by the Interstate Commerce Act.

The rule declared to be sound and just by Mr. Bishop in the sections of his work above cited is that, if the wife has no separate income or an inadequate one, the husband must contribute what, under the particular circumstances, is just. If she has sufficient in part, the husband must supply the residue. Practical equality being the end at which the proceeding aims, the "whole question is regulated by the judicial, not the arbitrary, discretion of the court, for the guidance whereof natural reason, judicial precedent, and the wife's wife's actual necessities blend." This statement of the law has heretofore met the approval of this court in the case of Davis v. Davis (1895) 141 Ind. 367, on page 374, 40 N. E. 803, on page 806, where, referring to the rule stated by Mr. Bishop, it was said: "This is a wise and humane provision of the law, and upon the trial court is enjoined the duty to carefully and properly exercise the discretionary powers thereby granted. The law does not contemplate that the husband shall be oppressed by the allowance; neither does it intend that where his means are ample the court shall weigh the amount awarded in the 104, 6, 24 Stat. 380 (U. S. Comp. St. 1901, p. Interstate Commerce Act Feb. 4, 1887, c. § scales of an apothecary.' The statute means 3156), requiring common carriers to file schedand intends a sum sufficient to insure an ules showing all rates between different points efficient preparation and a tair trial. And on its own route and points on the route of any what is sufficient for the wife to obtain these other carrier where a through route and joint rate has been established, and where no joint results the court, under all the facts and cir-rate over the through route has been establishcumstances in each particular case, must ed to file the separately established rates applydetermine."

Error, Cent. Dig. §§ 4089-4105; Dec. Dig. § [Ed. Note.-For other cases, see Appeal and 1040.*]


ing to through transportation, section 15, pro

[4] That an allowance of temporary ali-viding that where two or more through routes mony or suit money to a wife having some property or some credit is not necessarily an abuse of discretion on the part of the trial court has been decided by this court. Gruhl v. Gruhl (1890) 123 Ind. 86, 23 N.

and through rates have been established the shipper shall have the right to designate in writing by which of such routes the shipment shall be transported, and that where competing lines of railroad constitute portions of a through line or route the shipper shall have the right to determine over which of the competing lines the

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

shipment shall be transported, and section 20, making carriers receiving property for transportation to a point in another state liable for any loss or damage caused by any common carrier to which the property may be delivered or over whose lines it may pass, do not take the carrier's property without due process of law, since, even though the shipment is routed by the shipper, under sections 6 and 15 no through shipment can be lawfully undertaken, even where there are two or more competing lines on some portion of the route, unless a through rate is fixed over each, and the initial carrier's liability for the connecting carrier's negligence is based on the contract between the carriers and on the agency thereby created.

[Ed. Note. For other cases, see Carriers. Cent. Dig. §§ 775-789, 791-803; Dec. Dig. 8 177;* Constitutional Law, Cent. Dig. §§ 851856; Dec. Dig. § 302.*]


In an action involving a through shipment under a contract between carriers, carriers, fixing through rates, a carrier could not raise the moot question of whether Interstate Commerce Act Feb. 4, 1887, c. 104, § 20, 24 Stat. 386 (U. S. Comp. St. 1901, p. 3169) amended by Act June 29, 1906, c. 3591, § 7, 34 Stat. 593 (U. S. Comp. St. Supp. 1911, p. 1307), making initial carriers liable for loss or injury by connecting carriers, was constitutional, as applied to shipments under the local rates of each carrier.


In an action for damages to a shipment of mules, under a contract requiring claims for damages to be made within five days after the removal of the stock from the cars, it was proper to refuse an instruction that the failure to file such claim within five days relieved defendant of liability without any exception, and to charge that if an opportunity to inspect the mules when they were removed from the car was refused by the carrier the five-day period would not begin to run when the mules were unloaded. Cent. Dig. §§ 674-696, 927, 928, 933–949; Dec. [Ed. Note. For other cases, see Carriers, Dig. § 218.*]

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8. CARRIERS (§ 230*)

An instruction stating the proper elements of evidence to be considered in determining the question of what was a reasonable time in which to file claims for damages to a shipment was proper, although the question of reasonable time was for the jury, where the party complaining thereof had requested an instruction that the time fixed in the contract of shipment was reasonable, especially as the instruction did not determine the question, but simply informed the jury of the matters which might be considered in determining it.

[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. § 230.*]

[Ed. Note. For other cases, see Constitutional Law, Cent. Dig. §§ 43-45; Dec. Dig. 9. CARRIERS (§ 211*) CARRIAGE OF LIVE • 46.*]


Interstate Commerce Act Feb. 4, 1887, c. 104, § 20, 24 Stat. 386 (U. S. Comp. St. 1901, p. 3169) amended by Act June 29, 1906, c. 3591, § 7, 34 Stat. 593 (U. S. Comp. St. Supp. 1911, p. 1307), making initial carriers liable for loss or damage by connecting carriers, but permitting them to recover from the connecting carrier responsible for the loss or injury, is not invalid as imposing the costs, expenses, and attorney's fees incurred in defending a case, or ascertaining where and how the loss occurred on the initial carrier, since by vouching in the carrier responsible for the loss, or giving it notice to defend, the party responsible for the loss may be determined and the responsibility transferred to it. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 775-789, 791-803; Dec. Dig. § 177.*]

5. CARRIERS (§ 119*)-LIABILITY FOR INJURY OR LOSS-ACT OF GOD OR PUBLIC ENEMY. Interstate Commerce Act Feb. 4, 1887, c. 104, § 20, 24 Stat. 386 (U. S. Comp. St. 1901, p. 3169), amended by Act June 29, 1906, c. 3591, §7, 34 Stat. 593 (U. S. Comp. St. Supp. 1911, p. 1307), providing that common carriers receiving property for transportation to a point in another state shall be liable for any loss, damage, or injury thereto caused by it, or by any common carrier to which the property may be delivered, or over whose lines it may pass, does not render carriers liable for injuries caused by an act of God or the public enemy.

[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 523-530; Dec. Dig. § 119.*]


The twenty-eight hour law (Act June 29, 1906, c. 3594, 34 Stat. 607 [U. S. Comp. St. Supp. 1911, p. 1341]) is for the prevention of cruelty to animals, and is not primarily for the benefit of shippers of live stock, but is restrictive of their rights, and cannot be waived by them, except in the manner and upon the contingencies provided in the act.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 926-928; Dec. Dig. § 211.*] 10. APPEAL AND ERROR (§ 231*)-OBJECTIONS IN LOWER COURT-EVIDENCE-CARRIAGE OF LIVE STOCK-LIMITATION OF LIABILITY.

In an action for damages to a shipment of mules, where defendant relied on a contract limiting its liability, the admission of evidence that the shipper was not notified that there was more than one rate with differing liabilities, over an not reversible error, although the shipper was objection not stating any specific grounds, was bound to know of the two rates, and the carrier there was evidence that the carrier's agent had was not bound to inform him thereof, where no authority to accept shipments under the common-law liability, and if the shipper had declined to ship under the contract, although charging a higher rate, would still have used a contract which would have made the shipment at the shipper's risk, since if in view of that evidence the contract was void the evidence objected to was harmless, and if the contract was not void the evidence was nevertheless not inadmissible on its face, and could not be complained of in the absence of a specific objection.

[Ed. Note.-For other cases, see Appeal and 6. APPEAL AND ERROR (§ 928*)-PRESUMPTIONS Error, Cent. Dig. §§ 1299, 1352; Dec. Dig. § IN SUPPORT OF JUDGMENT.

Where the evidence was not set out, it would be assumed that instructions refused were inapplicable, and that those given fully covered and were applicable to the facts.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3749-3754; Dec. Dig. § 928.*]


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shipper has therefore no opportunity to ship, [ paragraph of answer is (a) that the contract except under a limitation of liability.

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[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 674-696, 927, 928, 933-949; Dec. Dig. § 218.*]

was fair and freely entered into by Hamilton after he had been given a bona fide and full opportunity to ship at a fair rate, without

limitation of the common-law liability by

Appeal from Circuit Court, Decatur Coun- which he secured a less rate, alleging it to ty; Marshall Hacker, Judge.

Action by Cephas S. Hayes and another against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. Judgment for plaintiffs, and defendant appeals. Affirmed. Davison Wilson, of Greensburg, and Carter & Morrison, of Shelbyville, for appellant. Hugh Wickens and John E. Osborn, both of Greensburg, for appellees.

MYERS, J. Action by appellees against appellant for damages alleged to have been sustained upon shipment of a car load of mules from Greensburg, Ind., to Atlanta, Ga., January 14, 1907.

The complaint is in four paragraphs. The first and third count upon a common-law liability, while the second and fourth count upon a shipment under a written contract, made an exhibit of each of those paragraphs. No question is presented as to the complaint. Appellant filed four affirmative paragraphs of answer, to the fourth and fifth of which demurrers for want of facts were sustained. A paragraph in general denial was also filed. The second paragraph of answer counts upon the same contract as the second and fourth paragraphs of complaint, a general bill of lading for the shipment of the mules from Greensburg, Ind., to Atlanta, Ga., by one Hamilton, who was made a defendant and filed a disclaimer, it being alleged in each paragraph of the complaint that immediately after the bill of lading was issued to Hamilton as consignee he had sold the mules to appellees before they were injured, though it is alleged in each of the two paragraphs counting upon the written contract that Hamilton delivered the mules to appellant for and consigned to appellees, and in the contract itself is a clause wherein appellees by name acknowledge their option to ship on a limited liability contract, in which respect the copy of the contract set out in appellant's brief does not correspond to the copy in the record, or the copy relied on by appellant.

The exhibit, with the complaint, sets out a written memorandum signed by Hamilton, directing the delivery of the mules to appellees. This memorandum is not set out as a part of the exhibit filed by appellant. There is also a discrepancy between the contract as set out by plaintiffs and the one counted on by appellant, in that in the copy set out by the latter, with its answer, is a copy of assumption by Hamilton, as man in charge, of all risk of injury in transportation, which is omitted from appellees' exhibit.

be the kind of contract usually made, and the consideration the agreement to transport according to the terms of the contract, and that the latter was reasonable; (b) that by the terms of the contract a verified claim for damages was required to be made within five days from the time the stock was removed from the cars, and that such claim was not filed; (c) that the damages arose from overloading, crowding, kicking, suffocating, and fright, which were released by the terms of the contract.

The third paragraph is the same as the second, except that it omits any allegations of damages from "overloading, crowding, kicking, suffocation, and fright," but avers that appellant did not undertake to carry beyond Cincinnati.

The fourth paragraph is the same as the third, except that it alleges that it only undertook to carry to Cincinnati, and there deliver to a connecting carrier, known by the terms of the contract as the Queen & Crescent Line, and that appellant had no line beyond Cincinnati, and the other line did connect Atlanta and Cincinnati, and that it delivered the stock in good condition to the connecting carrier, and that no loss or injury occurred while in appellant's possession, and that they were afterward injured, if at all, and that appellant did not undertake or contract for the negligence of another carrier, and that the clause of the Interstate Commerce Act attempting to make it responsible is invalid, because (a) it deprives appellant of its property without due process of law, and (b) it attempts to take its private property from it without its consent and give it to another.

The fifth paragraph is the same as the fourth, except that it alleges that "Hamilton selected the route over and by which said mules were to be shipped after they left defendant's road."

The errors relied upon are the action of the court in sustaining demurrers to the fourth and fifth paragraphs of answer.

[1] It has long been the settled rule prior to the going into effect of the Act of 1905 (Acts 1905, p. 58) that where a complaint, as the first and third paragraphs, counts upon an oral contract of shipment of property it may be shown under the general denial that it was under a written contract and defeat recovery. Snow v. Indiana, etc., Co., 109 Ind. 422, 426, 9 N. E. 702; Bartlett v. Pittsburgh, etc., Co., 94 Ind. 281; Hall v. Pennsylvania Co., 90 Ind. 459; Lake Shore, etc., Co. v. Bennett, 89 Ind. 457, 471; JeffersonThe basis of the defense under the second ville Co. v. Worland, 50 Ind. 339; Indian

apolis, etc., Co. v. Remmy, 13 Ind. 518; Pennsylvania, etc., Co. v. Walker, 29 Ind. App. 285, 64 N. E. 473; Parrill v. Cleveland, etc., Co., 23 Ind. App. 638, 55 N. E. 1026; Stewart v. Cleveland, etc., Co., 21 Ind. App. 218, 226, 52 N. E. 89; Sanders v. Hartge, 17 Ind. App. 243, 46 N. E. 604; Baltimore, etc., Co. v. Ragsdale, 14 Ind. App. 406, 42 N. E. 1106; Indianapolis, etc., Co. v. Forsythe, 4 Ind. App. 326, 29 N. E. 1138. This was only an application of the rule that where an oral or implied contract is declared on there can be no recovery upon a written contract, and whenever a written contract is sued on recovery cannot be had upon an oral or implied contract. Paris v. Strong, 51 Ind. 339; Pennsylvania, etc., Co. v. Walker, supra; Sanders v. Hartge, supra; 4 Encyc. Pl. & Pr. 922-927. We have recently held the act of 1905 superseded by the Interstate Commerce Act (Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]), as applied to interstate shipments. Wabash Ry. Co. et al. v. Priddy et al. (1913) 101 N. E. 724, No. 21,970, at last term.

As to the facts set up in the fourth paragraph, they were such and such only as the contract itself disclosed, except the fact that appellant had no line of its own from Cincinnati to Atlanta, and as to the fifth paragraph the only facts alleged which were not disclosed by the contract itself were that appellant's line did not reach Atlanta, and that Hamilton routed the shipment after it left appellant's line; but with the contract in evidence these facts could have been shown under it, and under the general denial, if they constituted a defense, under the rule that anything may be shown under that plea which will disprove what a plaintiff is bound to show, and if under the contract there was no liability, under those facts a defense would be made out, so that there could be no reversible error in sustaining the demurrers to those answers.

It is

Upon the motion for a new trial complaint is made of the giving of instructions Nos. 2, 3, and 4, requested by appellees. conceded by appellant that these instructions present the one question whether the Interstate Commerce Act, in fixing liability upon the primary carrier, violated the fifth and fourteenth amendments to the federal Constitution, as depriving appellant of its property without due process of law.

Instruction No. 2 is to the effect that, as the property involved in this suit was transported from a point in one state to a point in another state, this would constitute interstate commerce, and the liability and duty of the railroad company in regard to such shipment is regulated by the law of the United States, and that the act of Congress is as follows, and sets out the Carmack Amendment (Act June 29, 1906, c. 3591, § 7, 34 Stat. 593 [U. S. Comp. St. Supp. 1911, p. 1307]).

The third instruction informs the jury

mules for shipment from one state to another, it was liable for any loss, damage, or injury caused by appellant, or by any other carrier over whose line the shipment passed, whether such loss, damage, or injury occurred on appellant's line or on the line of some other carrier between the two points. The fourth instruction defines the duties prescribed by the act of Congress in regard to common carrier feeding, watering, and resting animals in shipment, and quotes section 1, Act of Congress June 29, 1906, c. 3594, 34 Stat. 607 (U. S. Comp. St. Supp. 1911, p. 1341).

The objection urged to these instructions involves the validity of the act, the grounds of objection being stated thus, with reference to all three, as raising the same ques(1) Because it assumes to make the appellant, as the initial carrier, liable for the wrongful act or default of the connecting carriers which were not the agents of appellant, and over which the appellant had no control. (2) Because it assumes to make the appellant, as the initial carrier, liable for a loss occasioned by the connecting carriers, and against which loss the appellant expressly contracted it should not be liable. (3) Because it assumes to make the appellant, as the initial carrier, liable for a loss occasioned by the act of God or the public enemy, while the property was in the possession and control of connecting carriers. (4) Because it assumes to make the appellant, as the initial carrier, liable for a loss occasioned by a connecting carrier, and assumes to give the appellant the right to recover from such connecting carrier the amount of the judgment obtained by the appellees against the appellant; but if the connecting carrier is insolvent, or is permitted to show that the loss was occasioned by the act of God or the public enemy, the appellant cannot recover against it, and is deprived of its property to the extent of the judgment obtained against it by the appellees. (5) Because it assumes to make the connecting carrier liable to pay the judgment obtained against the appellant, as initial carrier, and thus attempts to bind the connecting carrier by a judgment to which it is not a party, and to take from it the right to show that the property was not injured while in its possession or under its control, or that it was injured while in its possession or under its control by the act of God or the public enemy. (6) Because it assumes to compel the appellant, as the initial carrier, to enter into a contract or to assume a liability against its will, and concerning a matter that is not a regulation of commerce between states. (7) Because it assumes to allow the shipper to select the connecting carrier, and to compel the appellant, as the initial carrier, to ship the property over the road of such connecting carrier, and to become responsible for the acts of the shipper's agent. (8) Be

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