133. W. A. Gosline, Jr., and H. J. Heywood, Comprising W. A. Gosline & Company, a Partnership, Toledo, Ohio, Complainants, against Toledo, St. Louis and Western Railroad Company, and George K. Lowell, Benjamin S. Warren and Thomas D. Rhodes, Receivers of The Detroit, Toledo and Ironton Railway Company, The Detroit, Toledo and Ironton Railway Company and The Toledo Terminal Railroad Company, Defendants. Decided October 28, 1911. John R. Horst and H. D. Mannington, for Complainants; Lloyd F. Williams, Charles G. Cunningham and A. F. Ritchie, for Defendants.

FINDING AND ORDER.

This complaint was brought to secure payment for an alleged loss of coal during transit in a shipment consigned from Jackson, Ohio, February 20, 1909, by W. A. Gosline & Company to themselves at Toledo, Ohio, in D. S. Car 4949. The bill of lading shows that the coal was originally loaded in D. S. Car 6954 and afterwards transferred to D. S. Car 4949 before it was billed out. The shipment moved via The Detroit, Toledo and Ironton Railway, The Toledo, St. Louis and Western Railroad and The Toledo Terminal Railroad. Following the rule prevailing at that time, which rule was acquiesced in both by shipper and carrier, this car was billed at 1,000 pounds less than scale weight, that margin being provided for shrinkage from various causes, and no claim can therefore be made for payment for loss of that 1,000 pounds in this case.

The evidence shows and the Commission find, that there was delivered to complainant at point of destination but 51,200 pounds, therefore the loss sustained by complainant which defendants are obligated to recognize is 7,800 pounds. The value of the coal is shown to be $2.50 per ton, and the freight charges paid thereon $1.00 per ton. Therefore, the Commission find that the defendants owe to complainant the sum of $13.65.

The Commission further find that the claim was made by complainant on defendants for reimbursement for loss of coal in question; that defendants rejected said claim; that the same has not been paid; and that more than one hundred and twenty days have elapsed from the time demand was made on defendant for payment by complainant until complaint was filed with this Commission.

The Commission further find that The Detroit, Toledo and Ironton Railway Company, The Toledo, St. Louis and Western Railroad Company and The Toledo Terminal Railroad Company constitutes but one carrier in the movement of this coal, and that the said three

carriers jointly constituting one line are liable to complainant for the loss sustained. It is, therefore,

ORDERED, That the Detroit, Toledo and Ironton Railway Company, The Toledo, St. Louis and Western Railroad Company and The Toledo Terminal Railroad Company, be and they are hereby notified and directed to pay to the complainant herein, W. A. Gosline & Company, within thirty days from the receipt of this order, the sum of $13.65, as reparation for the loss of said coal.

134. W. A. Gosline & Company, Complainant, against The Hocking Valley Railway Company, Defendant. Decided July 18, 1911.

FINDING AND ORDER.

This case is submitted under the provisions of sectrons 579-80 of the General Code as amended May 9, 1910, O. L. Vol. 101, page 173. The complaint, with complainant's affidavits and exhibits was filed. May 22, 1911. The answer of defendant with counter affidavits was filed June 9, 1911, and affidavits in rebuttal were filed by the complainant July 3, 1911.

Upon examination of the pleadings, affidavits and exhibits, the Commission find: That there was forwarded from Nelsonville yards, Nelsonville, Ohio, January 5, 1911, a carload of coal via Hocking Valley Railway and Lake Erie and Western Railroad consigned to L. S. Armstrong, Lima, Ohio, H. V. car 29524, billing weight 101,000 pounds; that the affidavits show the gross weight to have been 142,800 pounds, tare 40,800 pounds, net 102,000 pounds; that shipment was billed at 101,000 pounds, in accordance with Hocking Valley Tariff R. C. O. No. 27 which provides for an allowance of 1,000 pounds for shrinkage; that shipment moved via Hocking Valley to Fostoria, Ohio, and was there turned over to the Lake Erie and Western Railroad in same car; that the Lake Erie and Western carried the shipment to Lima; that it arrived at Lima yards at 4:00 p. m., January 10, 1911; that at 9:00 a. m. January 11, 1911, car was placed at No. 5 team track; that the original consignee, L. S. Armstrong, refused the shipment and it was then taken from said team track at 10:00 a. m. January 17, 1911, and placed in the yards of J. B. Jackman & Sons, Lima, Ohio, to whom the coal was sold; that the car contained only 96,900 pounds of coal when placed for unloading; that complainant made claim for $6.12, the value of the coal alleged to have been lost, with freight charges and $3.00 demurrage alleged to have accrued by consignees' refusal to accept the shipment by reason of the apparent shortage, on the Hocking Valley Railway Company February 25, 1911, and that said claim was rejected May 9, 1911; that there was an

actual shortage of 5,100 pounds of coal at the time this car was placed for unloading, but that there was an allowance of 1,000 pounds, acquiesced in by consignor, for shrinkage, leaving a net shortage of 4,100 pounds; that freight was paid on 4,100 pounds of coal; that the value of the coal was $1.40 per ton, and the freight charges were $1.00 per ton; that the claim of $3.00 for an alleged unlawful demurrage charge is not established.

Therefore the Commission find that there is due complainant from defendant for loss of coal in shipment from Nelsonville yards, Nelsonville, Ohio, January 5, 1911, in Hocking Valley car No. 29524, consigned to L. S. Armstrong, Lima, Ohio, and subsequently reconsigned to J. B. Jackman & Sons, Lima, Ohio, the sum of $4.92 being the value of 4,100 pounds of coal and freight charges, with interest thereon from May 9th, 1911.

The Commission further find that the complainant, W. A. Gosline & Company, is located in the County of Lucas, in the State of Ohio, and it is ordered that the finding of the Commission in this matter be certified to the Clerk of the Court of Common Pleas of Lucas County, Ohio.

We, O. P. Gothlin, J. C. Sullivan and O. H. Hughes, constituting The Public Service Commission of the State of Ohio, do hereby certify the foregoing to be the finding of The Public Service Commission of Ohio in the above entitled matter, as shown by the records and files of said Commission.

In testimony whereof, we have hereunto set our hands and affixed the seal of said The Public Service Commission of Ohio this 18th day of July, 191.

THE PUBLIC SERVICE COMMISSION OF OHIO.

[SEAL]

By O. P. GOTHLIN, Chairman,

J. C. SULLIVAN,

O. H. HUGHES,

Commissioners.

135. The Henry Burkhardt Packing Company, Complainant, versus United States Express Company, Defendant. Decided July 6,

1911.

The complainant says:

That it is a company incorporated under the laws of the State of Ohio, engaged in butchering, packing and curing meats, and sale of

same.

That the above named express company is a common carrier, engaged in the transportation of property by railroad between points in the State of Ohio, and that as such common carrier said defendant is subject to the provisions of the laws of the State of Ohio relating to common carriers.

That on August 3, 1910, it delivered to the United States Express Company, Dayton, Ohio, at 7:10 a. m., two boxes of meat, weight 195 pounds, in good condition and received receipt for same from said express company to be delivered to G. W. Nickerson, Hillsboro, Ohio. Said goods marked "perishable." While the defendant admits shipment arrived at Hillsboro, Ohio, on August 3, 1910, at 6:05 p. m., same was not delivered to consignees until the following morning, August 4, 1910, when through this delay the weiners in one box were found to be spoiled and notice of same given by consignees. Credit for the amount of spoiled weiners was allowed by us to the consignees, and claim in the amount of $6.38, the actual amount of the loss, filed with J. F. Wilson, Agent of the defendant company at Dayton, Ohio, on December 13, 1910, and payment of claim declined by said company through said agent on February 2, 1911. Attached hereto please find copy of original shipping receipt, copy of original bill against express company, and letter from agent of express company under date of January 24, 1911, and February 2, 1911, declining claim.

Wherefore, the complainant prays that the aforesaid defendant company be required to answer the charges herein, and that after due hearing and investigation an order be made commanding said express company to pay $6.38 with interest at 6 per centum from date of arrival of shipment, August 4, 1910, and for such other and further order as the Commission may deem necessary and just in the premises.

Under date of July 6, 1911, the following entry was spread upon the Commission's Journal:

It appearing to the Commission that defendant has accorded. satisfaction to complainant, of the sum of six dollars and thirty-eight cents ($6.38), this case is, therefore, dismissed without further record.

136. James T. Bentley, Complainant, versus The Adena Railroad Company, The Wheeling and Lake Erie Railroad Company, and B. A. Worthington, Receiver of The Wheeling and Lake Erie Railroad Company, Defendants.

The complainant says:

Complainant, James T. Bentley, says he is a wool merchant and his address is St. Clairsville, Belmont County, Ohio, and that his attor

neys are Herbert W. Mitchell and George Thornburg, of St. Clairsville, Belmont County, Ohio.

The above named defendant, The Adena Railroad Company, is a common carrier, engaged in the transportation of persons and property by railroad between points in the State of Ohio, and that as such common carrier said defendant is subject to the provisions of the laws. of the State of Ohio relating to common carriers.

The defendant, The Wheeling and Lake Erie Railroad Company, is the lessee of the railroad of the said The Adena Railroad Company for the term of ninety-nine years, renewable for ninety-nine years, under and by authority of an agreement dated February 1, 1903, and recorded in Volume 26 at page 124, Record of Leases of Belmont County, Ohio. Under and by the terms and provisions of said lease or agreement the said The Wheeling and Lake Erie Railroad Company is required to operate said railroad and transport any persons, • property or thing, and to do and perform all other duties which the said The Adena Railroad Company is required to do and perform. under its charter and under the laws of the State of Ohio.

The said B. A. Worthington is the duly appointed and acting Receiver of the defendant, The Wheeling and Lake Erie Railroad Company and as such receiver is operating The Wheeling and Lake Erie Railroad and the railroad of The Adena Railroad Company.

That said defendant, The Adena Railroad Company, was incorporated March 5, 1901, and the record of its articles of incorporation may be found in Records of Incorporations, Volume 87, page 60, in the office of the Secretary of State, at Columbus, Ohio.

That said company acquired a right of way and in the year 1904 the line of railroad track was constructed and completed between Adena, Jefferson County, Ohio, and Neff, Belmont County, Ohio, a distance of about twenty miles, and extending through Robysville, Halls, Harrisville, Horton, Trolls Mine, Blainesville, Tolesburg, Wheeling Valley, Maynard, St. Clairsville Junction, Provident, St. Clairsville, North Neffs and Neffs.

That said line of railroad connects with The Wheeling and Lake Erie Railroad at Adena, Ohio, crosses The Cleveland, Lorain and Wheeling Railway at Maynard, Ohio, and extends to and connects. with The Baltimore and Ohio Railroad at Neffs, Belmont County, Ohio.

That since its completion, about seven years ago, the railroad of The Adena Railroad Company has been continuously operated, transporting large quantities of freight and property of various kinds, especially coal from the several mines situated along its right of way; that there has been no service whatever established for the transportation of persons nor any passenger service on said railroad, and there