
    No. 22945.
    Yellow Cab, Inc., a Colorado corporation v. Malibu Motor Hotel, Inc., doing business as Malibu Motor Hotel, and Apex Investment, Inc., doing business as Glisan Manor Motel.
    (473 P.2d 710)
    Decided August 10, 1970.
    Walter M. Simon, for plaintiff in error.
    C. Hamilton Evans, John P. Thompson, for defendants in error.
    
      George T. Ashen, for amicus curiae.
    
      In Department.
    
   Opinion by

Mr. Justice Day.

This action was commenced in the district court of the City and County of Denver. Yellow Cab sought an injunction to restrain the defendant motel operators in the Denver area from providing guests of their respective motels with transportation to and from Stapleton International Airport.

Introduced before the trial court, both in connection with a motion to dismiss and as an affirmative defense, was decision No. 55240 of the Public Utilities Commission of the State of Colorado, entitled Yellow Cab v. Skyways Service Co. In that proceeding Yellow Cab had requested the Commission to order other motel operators — not the ones named in the present litigation — to cease and desist identical acts complained of in the district court law suit or, in the alternative, to require said motels to obtain P.U.C. authority for their operation. In that decision the Commission decreed that such transportation was not in violation of the statutes governing the operation of public utilities in this state; was not within the jurisdiction of the Commission; and found, inter alia,

“* * * that such transportation services rendered are so limited and restricted, and so integrated to, and so incidental a part of, the Motel business operations of the Respondents, that they do not constitute common carrier transportation of persons as contemplated under the statute; that the transportation services rendered by the Respondents are not offered and provided ‘indiscriminately’ to the public at large, and are not rendered by the Respondents ‘for hire’ in the sense that the words are used in the statute.”

The Commission dismissed the complaint.

The trial court, we hold, properly denied the injunctive relief requested and dismissed the complaint after a hearing on the merits presented to the court on stipulation of facts. The court’s decision was correct, but we affirm for another reason.

Available to the Yellow Cab plaintiff were the appellate procedures to review the Public Utilities Commission decision in Yellow Cab v. Skyways Service Co., supra. They waived their right of appeal and accepted as final the Commission determination. By the mere expediency of naming other motels not named before the Commission, Yellow Cab seeks to relitigate collaterally a matter properly before and finally decided by the Commission. The court should have held that' they were estopped to bring the suit and should have dismissed the complaint on that ground.

The judgment is affirmed.

Mr. Justice Pringle, Mr. Justice Hodges and Mr. Justice Groves concur.  