
    The Cincinnati Union Stock Yard Co., Appellee, v. The New York Central Rd. Co., Appellant.
    (Decided April 12, 1937.)
    
      Messrs. Paxton é Seasongood, for appellee.
    
      Messrs. Harmon, Colston, Goldsmith S Hoadly, for appellant.
   Hamilton, J.

This law suit grows out of a claim on account for services rendered by plaintiff, appellee, The Cincinnati Union Stock Yard Company, to defendant, appellant, The New York Central Railroad Company, in loading and unloading livestock from the cars of defendant into the stockyards of plaintiff. The amount charged in the account is on a basis of one dollar per car .deck.

For some years prior to January 1, 1935, the charge had been 75 cents per car deck. This’ charge was made under contract between the stockyard company and the railroad.. The contract contained a provision giving the right to either party to terminate the contract on 30 days notice. The stockyard company notified the railroad more than thirty days preceding January 1, 1935, of its termination of the contract and that ‘ ‘ on and after J an. 1, 1935, its charge for loading and unloading would be $1.00 per car deck.” The railroad continued to tender its cars of stock for the service of loading and unloading and that service was rendered by tbe stockyard company. Upon being billed at the one dollar rate, the railroad failed and refused to pay the bill but offered to pay at the old rate of 75 cents per car deck. This was refused and hence this law suit. ^ •

The main defense is that the operations of the stockyard company in the loading and unloading service consist of transportation service as a common carrier and as such is subject to control by the Interstate Commerce Commission; that under the Interstate Commerce Act, the company is required to file a schedule of charges for loading and unloading, subject to the approval of the Interstate Commerce Commission as to reasonableness ; and that, by reason thereof, the plaintiff may not maintain this action in court, plaintiff not having complied with the provisions of the act.

Our conclusion is that under the facts presented the plaintiff is not a common carrier engaged in transportation and is not subject to control under the Interstate Commerce Act. The test is, as stated by the United States Supreme Court, what does the company do? Nothing is presented by the facts tending to show a common carrier operation in loading and unloading the stock. The company neither owns a railroad line nor uses any, nor does it have any interest in any operating railroad.

We have read the very concise and able- opinion of Judge Hess, the trial judge, in which he reviews the cases in point and applies the law to the facts of the case, and we are in accord with the reasoning and analysis of the law enunciated in that opinion, together with his conclusions. We, therefore, affirm the judgment of the Court of Common Pleas, affirming the judgment of the Municipal Court of Cincinnati.

Judgment affirmed.

Ross, P. J., and Matthews, J., concur.  