
    CARRIERS.
    [Hamilton (1st) Court of Appeals,
    February 14, 1916.]
    Jones, Jones and Gorman, JJ.
    
      James F. Bennett v. Pennsylvania Co. and Pittsburg, C. C. & St. L. Ry.
    Agreement by Carrier to Render Additional Service does not Render Contract Void.
    The waiver by a carrier of one of the provisions of a uniform contract of shipment, thereby giving to the shipper a service other and greater than that specified in the contract, does not render the contract void ■ under the Ohio statute relating to unlawful preferences for transportation wholly within the state, unless the discrimination thereby given to the shipper is unjust or unreasonable and can fairly be considered as granting some privilege or concession not enjoyed by others similarly engaged.
    ERROR.
    
      Blade, Swing & Bloch, for plaintiff in error.
    
      Maxwell & Ramsey, for defendants in error.
    
      
      Motion to certify record overruled, Pennsylvania Co. v. Bennett, 61 Bull. 182.
    
   JONES, E. H., J.

The discrimination inhibited by Sees. 508, 564, 567 and 568 G-. C., is such an one as is unjust or unreasonable and can fairly be considered as giving some substantial privilege or concession not enjoyed by others similarly engaged.

Our statutes are practically libe tbe provisions of tbe Interstate Commerce act, and are to be alike construed. In. Union Pac. Ry. v. Grain Co. 178 Fed. Rep. 223, it was beld:

- “Tbe interstate commerce does not prohibit tbe giving of all preferences and advantages or the production of all prejudices and disadvantages. It prohibits only those that are undue and unreasonable. ’ ’

Hutchinson, Carriers (3d ed.) See. 538:

“All special contracts or traffic arrangements between carrier and shipper are not forbidden or condemned, but only such as operate unfairly and evidence undue favoritism towards one, or deprive another of his just rights. ’ ’

The facts stated in the petition are not alone sufficient to warrant therefrom a conclusion that there was an unlawful discrimination in this case. The burden rests upon the railway company to prove that the favor shown the shipper constitutes an undue preference or unjust discrimination. Interstate Commerce Commission v. Railway, 43 Fed. Rep. 37:

“Where a railroad company is charged with violating the interstate commerce act, by the issuance of ‘party-rate tickets’ at less than the rates charged single passengers, the burden of proving that such lower charge constitutes an undue preference is upon the person making the charge.”

The judgment is reversed and the cause remanded to the superior court for further proceedings.

Jones, 0. B. and Gorman, JJ., concur.  