delivered the opinion of the court.
We have carefully considered the arguments of counsel and have examined the cases submitted, among which are Bare v. The American Forwarding Co., 146 Ill. App. 388, and the same as reported in 242 Ill. 298; also, the Interstate Commerce Commissions Decisions in Export Shipping Co. v. Wabash R. R. Co. et al., 14 I. C. C. Rep. 437, and California Commercial Ass’n v. Wells Fargo & Co., 14 I. C. C. Rep. 422.
The facts before this court in the Bare case were *518very different from those in the case at bar, and may have warranted entirely different conclusions than can be reached in this case. In that case, the plaintiff in person took the goods to the freight depot of the railway company for shipment and there met one of the officers of the American Forwarding Company, who received the goods and issued a receipt therefor; and there is, also, testimony in the case (though denied by the defendant) to the effect that the officer of the forwarding company, thus receiving the goods, assured the plaintiff that the company would be responsible for the trunk if lost.
Upon the evidence in this case, and so far as this case is concerned, we regard the transaction by the defendant company as one in which it acted as a forwarding agent, and not as a common carrier.
The business of gathering from various small shippers their freight, and assembling it into carload lots, and thus enabling the forwarding company to secure the transportation of the various parcels of freight at carload rates—and, to secure this carload rate, waiving the protection which otherwise the shippers of less than carload rates would have—with the difference between the carload and less than carload rates distributed between the forwarding company and the shipper in such proportion as the forwarding company may find necessary to secure business, leaving to the railway company the burden of maintaining its equipment and expensive terminal privileges for such amounts as it can earn upon the less than carload lots of freight which it is compelled to handle for individual shippers to such places, as are not important terminal points, involves considerations upon which much might be said upon both sides.
It is clear, however, that if the forwarding agent, to get this business, is to be allowed to release the railway company from all liability, except such as is comparatively nominal, for losses or damages incurred by reason of the shipment, it should be done only with the *519assent of the shipper. Perhaps this should he in the form of a distinct notification to the shipper, at the time the goods are accepted, that, in order to secure the reduced rate obtained by shipping at carload rates, and of which reduced rate the shipper is a beneficiary, it is necessary that the shipment be “released and at owner’s risk,” but, in some manner, the shipper must be advised and assent.
In this case defendant in error (Minerva Blair), after packing the box, had a Mr. Stephens, a merchant of Peru, Indiana, call and mark it for shipment, and she authorized him to attend to the details of shipping it to California for her. ' The drayman for Stephens came and took it for that purpose, and turned it over to the Peru Teaming Company of Peru, Indiana, which billed it over to the Wabash Bailroad Company to plaintiff in error in Chicago, and enclosed the bill of lading to plaintiff in error in a letter, stating “Herewith enclosed find bill of lading for one box H. H. Goods, to be forwarded to Long Beach, California. The box is plainly marked for consignee, Deo Hank, with freight paid to Chicago.” The bill of lading enclosed, acknowledges receipt in good order from Jesse Stephens by the Wabash Bailroad Company, to be delivered to The American Forwarding & Mercantile Company of Chicago, Ill., one box H. H. Goods, weight 340 pounds, marked Deo Hank, Long Beach, California. On this bill of lading there appeared, among other things, the following:
“The consignor of this property has the option of shipping same at a higher rate without limitation as to value in case of loss or "damage, but agrees to the specified valuation named in case of loss or damage in consideration of the lower rate accorded for transportation.
Jesse Stephens, Consignor,
subject to all the terms and conditions of the bill of lading now in use by the Wabash Bailroad Company.”
Also the following:
“Beleased at owner’s risk.”
*520There was, also, evidence in this case to- the effect that it was the custom of forwarders to ship at the reduced rate, and to waive liability, as plaintiff in error did in this case.
We think the evidence in this case justified the act of the plaintiff in error in shipping the box at the reduced rate and in waiving liability on the part of the railroad company.
Jesse Stephens was the agent of defendant in error to attend to the shipment. He delegated the work to the Peru Teaming Company, which did ship to Chicago at the reduced rate, and waived liability, and the only instructions which the plaintiff in error had consisted of the letter and bill of lading it received from the Peru Teaming Co.—showing the goods were “to be forwarded,” and that the freight was “paid to Chicago.” Plaintiff in error, as sub-agent for defendant in error, in shipping at the reduced rate, did what her agent had already done within the scope of instructions, and, therefore, it was not liable.
The judgment of the court below is reversed, with a finding of facts.
Reversed.
Me. Justice Smith dissents.