
    The J. B. Doppes Sons Lumber Co. v. The Cincinnati, New Orleans & Texas Pacific Railway Co.
    
      Railroads — Switching service determined, how — Sections 8998 and 9000, General Code — Transportation service rendered within terminal limits of city — Reasonable rate may be charged, when.
    
    1. A switching service, within the meaning of Sections 8998 and 9000, General Code, is one which precedes or follows a transportation service and applies only to a shipment upon which legal freight charges have already been earned or are to be earned.
    2. A transportation service may be rendered within the terminal limits of a city, and where a contract of carriage calls for the movement of a car from a point on one railroad to a point on a connecting road, both of which are within such limits, the railroad companies in their charge for service are not subject to the provisions of Section 9000, General Code, but may charge for such service a rate that is just and reasonable.
    (No. 14721
    Decided May 25, 1915.)
    
      Error to the Court of Appeals of Hamilton county.
    Plaintiff in error brought an action under Section 9002, General Code, in the court of common pleas of Hamilton county against the defendant in error and The Cleveland, Cincinnati, Chicago & St. Louis Railway'Co. to recover the sum of $150.
    The allegations of the petition in substance are as follows:
    The lumber yards of plaintiff are contiguous to the railroad tracks" of defendant in error and are connected (therewith by sidetrack leading therefrom and to the lumber yards, all of which tracks are within the proper terminal limits of the city of Cincinnati. The tracks of The Cleveland,. Cincinnati, Chicago & St. Louis Railway Co. are connected with the tracks of defendant in error and the distance from plaintiff’s tracks to the general freight house of defendant in error in said city does not exceed five miles.
    On October 2, 1911, plaintiff caused to be transported upon and over the road of The Cleveland, Cincinnati, Chicago & St. Louis Railway Co., from Fernbank, Hamilton county, Ohio, to its siding in the city of Cincinnati, one car of lumber, and requested that the shipment be made to its switch, known as the “Doppes switch, Cincinnati, New Orleans & Texas Pacific Railway,” and both the defendant railroad companies so transported it. Fernbank is within the switching limits of the city of Cincinnati. The Cleveland, Cincinnati, Chicago & St. Louis Railway Co. demanded and received from plaintiff for transporting said car the following amount, viz.: Trackage charge at Fernbank $2, switching from Fernbank to Cincinnati $5, and The Cleveland, Cincinnati, Chicago & St. Louis Railway Co. and defendant in error demanded and received from plaintiff for switching from the tracks of The Cleveland, Cincinnati, Chicago & St. Louis Railway Co. onto and over the tracks of the defendant to plaintiff’s siding the sum of $6.
    The railroad companies are entitled to demand and receive for said switching from the tracks of one onto and over the tracks of the other to the sidetrack of plaintiff the sum of $2 and no more, this sum being the rate fixed by Section 9000, General Code, for such service for that distance, to-wit, not exceeding five miles, and the railroad companies, their officers and agents, violated or permitted to be violated said Section 9000 and demanded, exacted and received of plaintiff the sum of $6 for said service, which sum is $4 in excess of the amount authorized by law therefor.
    Plaintiff in its petition says that it has been aggrieved by said overcharges and by reason thereof it is entitled to recover from the railroad companies the sum of $150, for which amount judgment is asked.
    The railroad companies each filed an answer in which practically all the allegations of the petition are admitted to be true, but there is the averment in each of the answers that the transportation described in the petition was transportation of freight between a local station on the line of The Cleveland, Cincinnati, Chicago & St. Louis Railway Co. and a local station on the line of the defendant in error, that the same was not a switching service, and that the statute mentioned in the petition does not apply.
    Plaintiff and each of the railroad companies filed a motion for judgment on the pleadings in their favor, respectively. The court of common pleas sustained the motion of The Cleveland, Cincinnati, Chicago & St. Louis Railway Co., and that company was dismissed from the case. The motion of defendant in error here was overruled and that of plaintiff in error was sustained, and judgment was rendered in favor of plaintiff in error against the defendant in error in the sum of $150.
    Defendant in error, The Cincinnati, New Orleans & Texas Pacific Railway Co., filed a petition in error in the court of appeals and the judgment of the court pf common pleas was reversed and final judgment was rendered in its favor. Plaintiff in error is here asking for a reversal of the judgment of the court of appeals and an affirmance of that of the court of common pleas.
    
      Messrs. Dolle, Taylor & O’Donnell, for plaintiff in error.
    
      Messrs. Harmon, Colston, Goldsmith & Hoadly, for defendant in error.
    
      Mr. Morison R. Waite and Mr. John R. Schindel filed brief for The Cincinnati, Hamilton & Dayton Railway Co., defendant in similar cases pending in lower courts.
   Newman, J.

Section 8998, General Code, requires a railroad company, whose tracks lie contiguous to sidetracks suitable for loading or unloading, to switch the cars of other railroad companies, at the request of such companies or shippers, over and upon the tracks so lying by such sidetracks, for the purpose of unloading freight into or from such sidetracks, without demurrage, for forty-eight hours. Section 9000 fixes the amounts which a railroad company owning such tracks lying contiguous to sidetracks and within the proper terminals of a city shall receive from the company whose cars are so switched, loaded or unloaded, at such sidetracks. For a distance over two and one-half miles and not exceeding five miles the maximum charge that may be made is $2 per car.

Plaintiff in error, claiming to be an aggrieved party within the meaning of Section 9002, predicates its right to recover the amount named in that section upon an alleged violation by defendant in error of the provisions of Section 9000 in charging $6 for what is alleged by it, plaintiff in error, to be a switching service, instead of $2, the maximum amount fixed by law for the switching of a car a distance not exceeding five miles. If the service rendered by defendant in error, as shown by the pleadings, was not a switching service, within the meaning of Section 9000, defendant in error is not liable under the provisions of Section 9002.

The court of common pleas in reaching its conclusion proceeded upon the theory that the transportation of the car of lumber was completed when it reached the terminal limits of The Cleveland, Cincinnati, Chicago & St. Louis Railway Co. But was the court correct in this in view of the express allegations of the petition ? It is alleged that plaintiff caused the car of lumber to be transported over the road of The Cleveland, Cincinnati, Chicago & St. Louis Railway Co. from Fernbank to its siding in the city of Cincinnati, that it requested the shipment to be made to its switch, known as the “Doppes switch, Cincinnati, New Orleans & Texas Pacific Railway,” and that both of the railroad companies so transported it. , It is true plaintiff calls the service rendered by defendant in error a switching service. It is equally true that it is termed transportation service by defendant in error. But the nature and character of the service is to be determined from the facts regardless of the designation given it by the parties.

As we view it, the contract of carriage involved a transportation from Fernbank to Doppes switch, such a transportation as is provided for in Section 8999, which reads: “When the tracks of two companies are so connected, either, when required, shall transport over its road to its destination thereon, any freight offered, in cars in which it is offered, at its local rates per mile as set forth in its freight tariff for the distance most nearly corresponding, and return the cars, with or without freight or. unnecessary delay.”

In this case the destination of the car was Doppes switch, and the fact that Doppes switch and Fernbank, from which the shipment originated, are both within the terminal limits of Cincinnati is immaterial. Mr. Justice McKenna, in Grand Trunk Ry. Co. v. Michigan Rd. Comm., 231 U. S., 457, in commenting on the decision of the United States court of appeals in the same case, uses the following language, which we think is in point here: “And it was remarked that the fact that freight movement begins and ends within the limits of a city does not take from it its character of ‘an actual transportation between two termini/ the other conditions obtaining. We concur in the conclusion of the court.” The United States court of appeals had held that a service does not cease to be a transportation merely because the movement begins and ends within a city, or is only between an intracity junction or teamtrack or sidetrack. 198 Fed. Rep., 1009.

In the present case the total amount charged for the shipment from Fernbank to Doppes switch was $13. As has been said by the interstate commerce commission, it is immaterial to the shipper how the carriers divide the charge provided it is reasonable. Whether or not it is reasonable in the case at hand is a matter with which we are not concerned, as plaintiff does not base its claim upon an excessive freight rate. It is to be presumed, however, that the railroad companies have followed the requirements of Section 512, General Code, and that the rate charged for the transportation of the freight over the connecting lines was reasonable.

In Dixon v. Central of Ga. Ry. Co., 110 Ga., 173, it is held: “A switching or transfer service is one which precedes or follows a transportation service, and applies only to a shipment on which legal freight charges have already been earned, or are to be earned.” We approve and adopt this definition. .

In the Georgia case, the court, in illustrating what would be a switching or transfer service, say that if the shippers had ordered freight over the Central Railway to be shipped to Savannah from Macon, Ga., they would be liable for regular rates for transportation from that point to the railway terminal at Savannah; and the Central Railway Co., in shipping the freight from its depot over the spur-track to the shipper’s place of business, would simply be entitled to the rates fixed for such transfer service. Or, if the shippers desired the Central Railway Co. to transport freight from their place of business in Savannah to Macon, and the Central Railway Co. transported the goods over its spur-track from the shipper’s place of business to its depot, it could only charge additional, for this part of the transportation, simply the switching-service rate.

The court of common pleas did not seem to question the holding of the Georgia court, but was of the opinion that the rule announced there has no application here because of the fact that the transportation in the present case was completed when the car of the plaintiff reached its destination within the terminal limits of The Cleveland, Cincinnati, Chicago & St. Louis Railway Co. But, as we have said, the court was in error in this, for the car did not reach its destination under the contract of carriage until it was delivered at Doppes switch.

The word “switching” is synonymous with “transferring.” We think that a switching service is rendered, within the meaning of Section 9000, when a car is transferred from a sidetrack, over the tracks of a railroad lying contiguous thereto, to the line of the company which is to have what is termed the “line haul,” or from the line of the company which has had the line haul, over the track of the company which delivers the freight, to the siding of the shipper. In such case the railroad company receiving the car from or delivering it to the company having the line haul would be limited in its charge to the amount fixed by statute for switching service.

We have no such case here. According to our view the movement of the car in question from Fernbank to Doppes switch was a transportation service for which a reasonable freight rate could be charged. The movement of the car by defendant in error was not incidental to the shipment as a whole, but was a part of it. Our holding is that the service rendered by the defendant in error was not a switching service, within the meaning of Section 9000, and therefore there could be no violation of its provisions. In view of this holding it is unnecessary to consider the other questions raised by counsel for defendant in error.

Judgment affirmed.

Nichols, C. J., Johnson, Donahue, Jones and Matthias, JJ., concur.  