This cause comes into this court on appeal from the court of common pleas of Huron county.
The plaintiff, the Public Utilities Commission of Ohio, seeks to enjoin the defendants from operating a truck as a common carrier without procuring a certificate of public convenience and necessity, as required by Section 614-84 et seq., General Code.
One who operates a truck or trucks upon the highways for compensation, and holds himself out to the public as being willing to serve the public indiscriminately to the limit of the capacity of his truck or trucks, is a common carrier. Hissem v.Guran, 112 Ohio St. 59, 146 N.E. 808; Craig v. Public UtilitiesCommission, 115 Ohio St. 512, 154 N.E. 795; Breuer v. PublicUtilities Commission, 118 Ohio St. 95, 160 N.E. 623; MotorFreight, Inc., v. Public Utilities Commission, 120 Ohio St. 1,165 N.E. 355; Public Utilities Commission v. Minniear Sons,123 Ohio St. 79, 174 N.E. 1. *Page 397
The facts in the instant case, however, are peculiar, and the precise question presented is an open one in Ohio.
The defendant, Edward Starkey, is and for some time has been engaged in the hauling of live stock raised by various farmers surrounding Boughtonville, Huron county, Ohio, to Cleveland, to be disposed of in the Cleveland Union Stockyards. The live stock has always been transported by him under a contract between him and the defendant, the Boughtonville Farmers Exchange Company, by the terms of which the defendant Starkey acted as an independent contractor in operating the trucks, and the defendant company made the arrangements for hauling with the farmers, and after the sale at the stockyards remitted the proceeds of the sale, less yardage and commission charged at the stockyards and sixty cents per hundred for the hauling by truck. The sixty cents was divided, ten cents to the defendant company and fifty cents to the defendant Starkey. There is no question that the defendant company furnished transportation for live stock to all farmers who sought it, up to the limit of the capacity of the trucks of the defendant Starkey. Counsel for the defendants do not contend that there is not a holding out to the public indiscriminately of willingness to carry all live stock that is offered, but maintain that in each instance there is a bona fide sale of the live stock to the defendant company, that then it merely transports the stock as its own, and that as the defendant Starkey hauls exclusively for that company the transaction does not come within the inhibition against operating *Page 398 without a certificate of public convenience and necessity.
The defendant Starkey has always, upon getting the load of live stock, given a statement showing what the load was composed of. Since the trial of the case in the court of common pleas, the defendant company has prepared a new form of statement to be used in future transactions, and this court has been requested by counsel for both the plaintiff and the defendants to consider the cause in the light of this paper, which has been introduced in evidence. The paper reads as follows:
"Sale Bill. ____________, 1930.
"Sold to The Boughtonville Farmers Exchange Co. the following livestock
Kind No. Head Marks or description
Hogs Cattle Sheep Calves Poultry Eggs
"The title passes to buyer from seller upon the signing of this instrument. Price to be computed at $.60 below the price received by buyer at Cleveland Union Stockyards, whose weights are accepted by both parties. Buyer has three days to make payment.
"_________________, Seller
"The Boughtonville Farmers Exchange Co.
"By ______________, Agent
"Buyer." *Page 399
It is true that if the defendant company purchased and paid for the stock and then caused it to be transported to Cleveland under special contract with an operator of a truck who did no other work of transportation, such truck operator would not be a common carrier.
The method of doing business in the instant case, however, amounted to nothing more or less than a plan of transporting live stock for the public in that vicinity at a charge of sixty cents per hundred. It was merely a device which enabled the truck owner to carry on the work of a common carrier through the defendant company. If such a device could be used to evade the law, all truck owners engaged in transporting goods to market as common carriers could operate under special contract with another person, or a corporation, and avoid the legal necessity of obtaining a certificate of public convenience and necessity.
The plaintiff is entitled to an injunction as prayed for in the petition.
Decree accordingly.
LLOYD and RICHARDS, JJ., concur. *Page 400