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April 30, 1935

ARON et al.

The opinion of the court was delivered by: BYERS

BYERS, District Judge.

This is an action at law by several plaintiffs resident in this district, who seek to recover from the defendant, a corporation of Pennsylvania, allegedly unlawful freight charges paid by the plaintiffs as consignees of several interstate shipments of live stock or cattle.

The points of origin of these shipments were so remote from the destination (Jersey City) that, in compliance with the so-called 28 hour law, the carrier was required to unload the cattle and live stock at Pittsburgh for the 5 hour period therein stated, for rest, water, and feeding.

 The objectionable imposts were "service charges" in connection with that operation, paid by the carrier to the "Pittsburgh Union Stock Yards Co." and its successor, "Pittsburgh Joint Stock Yards Co.," a private or non-railroad operated stock-yard. The charges so paid were included in the waybills of the respective shipments and collected by the carrier from the plaintiffs.

 A jury was waived and the case was submitted to the court for determination, there being no controverted issues of fact respecting the status of the parties, or the amounts of the charges. The bases of the plaintiffs' claims are set forth in the stipulation upon which the cause was submitted.

 The said "service charges" were $1.00 for single, and $2.00 for double, deck cars, and the nature of the services will be explained in detail presently.

 The statute imposing the duty of resting, watering and feeding cattle and live stock in transit is found in title 45, U.S.C., §§ 71 and 72 (45 USCA §§ 71, 72), which seems not to require quotation; the latter section says that the duty of feeding and watering the animals rests upon the owner or person having custody thereof; and, in case of his default, the duty rests upon the carrier, at the reasonable expense of the owner; in that event, the carrier has a lien upon the animals for food, care and custody furnished, collectible at destination.

 In this connection, the following is included from the stipulation of facts:

 "The said shipments of ordinary live stock were billed from the points of origin through to destinations and without any instructions, written or oral, to the carriers as to the watering, feeding or resting in transit, and were not accompanied by attendants or caretakers. After the shipments were stopped en route at said public stock yards, said shipments were removed from the cars into the said public stock yards, and after a period of time were reloaded into the cars. During the intervening period of time the shipments were in the said public stock yards, but the plaintiffs do not concede that the shipments left the legal possession of the defendant. Upon such stopping neither the plaintiffs nor the owners of said live stock or any employees of either undertook to provide feed and water therefor and during said period feed, water and care were furnished."

 Under the foregoing circumstances, the plaintiffs paid to the carrier the service charges, as a separate item in each instance, and also the charge for feed; as to the latter, there is no attempt to recover.

 The plaintiffs' cause is based upon the Interstate Commerce Act, §§ 8, 9, 16 (title 49 U.S.C. §§ 8, 9 and 16 [49 USCA §§ 8, 9, 16]). The first provides substantially that, if a carrier shall violate any provision of the act, it shall be liable to the person injured "for the full amount of damages sustained in consequence of any such violation * *" together with a reasonable attorney's fee to be fixed by the court if recovery be had. The second is to the effect that the remedy may be sought either by complaint made to the Interstate Commerce Commission, or in any district court of the United States of competent jurisdiction, but both remedies may not be had, i.e., there must be an election.

 The third section contains provisions touching orders by the commission, and proceedings to enforce them; limitation of actions (not here involved) and many procedural paragraphs.

 The principal contention of the plaintiffs has to do with the failure of the carrier to include in its tariff filed with the Commission the amount of the charges which would be made for such service, in connection with stops at non-railroad operated stock-yards.

 The reference, in the tariff as filed, to such matters was in the following form:

 "Stops In Transit At Other Than Railroad Operated Stock Yards. * * *

 "Ordinary Live Stock. When ordinary Live Stock, as defined in Item 3 hereof, in carloads, in transit is stopped en route at other than railroad operated stock yards for feed, water and rest, in compliance with Federal or State laws, the actual charges made by such stock yards for unloading and reloading will be paid by the carrier to the stock yards company. [Note: This is in compliance with section 15, subd. 5, of the Interstate Commerce Act, 49 USCA § 15, subd. 5.] The charges of stock yards company for the feed [Note: No recovery is sought by the plaintiffs for the item of feed.] and service rendered, other than unloading and reloading, will be assessed against the ...

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