No. MC-24403

SOUTHERN UNITED LINES, INC., COMMON CARRIER APPLICATION

Submitted December 1, 1941. Decided May 17, 1943

Upon further hearing, findings in prior report, 24 M. C. C. 241, reversed. Applicant, as successor in interest to Paramount Motor Lines, Inc., and to James B. Loyless, doing business as L. & C. Motor Lines, successively, found entitled to continue operation as a common carrier by motor vehicle of general commodities between Greenville, S. C., and Atlanta, Ga., over irregular routes, by reason of applicant's and its predecessors' having been so engaged on June 1, 1935, and continuously since. Issuance of a certificate approved upon compliance by applicant with certain conditions, and application in all other respects denied.

Appearances as shown in prior report; also H. F. Gillis, Edgar Turlington, and James E. Wilson for applicant; and J. E. Bullock, Frank X. Masterson, N. V. Hutchinson, Jr., Charles R. Miner, John M. Miller, C. H. Noah, Samuel Green, Jr., and H. L. Lewis for protestants.

REPORT OF THE COMMISSION ON FURTHER HEARING DIVISION 5, COMMISSIONERS LEE, ROGERS, AND PATTERSON BY DIVISION 5:

Exceptions were filed by applicant to the order on further hearing recommended by the examiner, and protestants replied. Our conclusions differ from those recommended.

By application under the "grandfather" clause of section 206 (a) of the Interstate Commerce Act, filed February 12, 1936, Southern United Lines, Inc., of Greenville, S. C., seeks a certificate of public convenience and necessity authorizing continuance of operation, in interstate or foreign commerce, as a common carrier by motor vehicle of general commodities, except loose bulk commodities, livestock, explosives, articles of unusual value, commodities injurious or contaminating to other lading, and commodities requiring special equipment, between points in South Carolina, North Carolina, Georgia,

1 The instant application was filed by James B. Loyless, of Wellford, S. C., doing business as L. & C. Motor Lines. By an order of October 28, 1936, in No. MC-FC-362, the substitution of Paramount Motor Lines, Inc., of Greenville, S. C., as applicant herein, in lieu of James B. Loyless, was approved. By another order, of July 22, 1937, in No. MC-FC-2151, the substitution of Southern United Lines, Inc., of Greenville, as applicant herein, in lieu of Paramount Motor Lines, Inc., was approved.

Virginia, Maryland, Delaware, Pennsylvania, New Jersey, New York, and the District of Columbia, over irregular routes. Rail lines and motor carriers operating in the affected territory oppose the application.

In the prior report herein, 24 M. C. C. 241, we found, on July 10, 1940, that applicant, as successor to Paramount Motor Lines, Inc., and to Loyless, had failed to establish the right to a "grandfather" clause certificate as a common carrier by motor vehicle, of general commodities, between any points whatsoever and denied the application. On applicant's petition, by order of December 19, 1940, the order of July 10, 1940, was vacated and set aside, and the matter was reopened for further hearing.

During a period of approximately a week in the early part of 1936, when Loyless was negotiating with one Witherspoon for the sale of the considered operation, Witherspoon actually conducted the operations under the supervision and responsibility of Loyless. The sale was never consummated. Witherspoon has no present interest whatsoever in the operation, and is not claiming any motor-carrier rights. The record is not too clear but also suggests that a receiver was appointed for Paramount at some time during its operation. Operations, however, appear to have been conducted at all times by Paramount, in its own name, and under its own responsibility. On the facts before us, neither of these matters merits any further discussion. For convenience the term applicant as hereinafter used will refer to either applicant or its predecessors, depending upon which one was conducting the operation at the time in question.

In 1933, James B. Loyless, under the trade name of L. & C. Motor Lines, instituted an operation in interstate or foreign commerce as a common carrier by motor vehicle. He was registered under the code of fair competition for the trucking industry, and on June 1, 1935, he was "licensed" to operate in South Carolina as a contract carrier of freight by motor vehicle and owned and operated three units of equipment. In 1935, he paid license taxes for the operation of motor vehicles in South Carolina and Georgia. He conducted operations over the most convenient routes and served the public generally within the limits of his equipment. His operations properly may be described as those of a common carrier over irregular routes. Both before and after the "grandfather" date, Loyless at times, when traffic exceeded the capacity of his own equipment, employed the services of other motor carriers. At other times, when there was not sufficient traffic to employ all of his equipment, he transported shipments for other motor carriers on their freight bills and under their responsibility.

Loyless testified that he operated continuously from prior to June 1, 1935, until his operation was acquired by Paramount Motor Lines, Inc., hereinafter called Paramount, in the latter part of 1936, and that, during the period of his operation, he transported the following commodities in the manner indicated: Cotton piece goods, and sheets and pillow cases, from Lyman, S. C., to Savannah, Atlanta, and Macon, Ga., Charleston and Columbia, S. C., Charlotte, Yadkin, Winston-Salem, and High Point, N. C., Norfolk, Va., Washington, D. C., Baltimore, Md., Philadelphia, Sunbury, Minersville, and York, Pa., Bound Brook, Newark, and Jersey City, N. J., and New York City, N. Y.; returned cotton piece goods from Philadelphia to Lyman; empty drums from Lyman to Bound Brook, Newark, and Jersey City; textile machinery between Tucapau, S. C., and Augusta, Ga., and Charleston, from Lyman to Columbia and Charlotte, and from Savannah to "South Carolina and North Carolina points"; cotton yarn from Fingerville, S. C., to Philadelphia; rayon from Greenville to New York City; burlap from Savannah to Lyman, Spartanburg, and Greenville, S. C.; pulpboard from Cedartown, Ga., to Lyman; matches from Cooleemee, Erwin, and Asheboro, N. C., to Spartanburg; mill supplies from Savannah to Lyman, from Charleston to "North Carolina points", from Norfolk to Lyman, and from Newark to Lyman and Columbia; paper from Philadelphia to Raleigh, N. C.; linoleum rugs from Marcus Hook, Pa., to Atlanta and Charleston; rugs from New York City to Atlanta and Greenville; stoves from Atlanta and Rome, Ga., to Mullins, Spartanburg, Greenville, Columbia, Florence, and Gaffney, S. C., and Raleigh, Rocky Mount, Gastonia, Marion, Goldsboro, Henderson, and Roseboro, N. C.; asphalt from Charleston to "various points in South Carolina and Georgia"; oil and grease, in containers, from Wilmington, N. C., to Spartanburg and Greenville, and from Philadelphia to Spartanburg; canned goods and food products from Roanoke, Va., and Baltimore to Greenville, Union, Woodruff, Spartanburg, and Gaffney, S. C., and from New York City to Spartanburg and Greenville; cranberries from Hammonton, N. J., to Spartanburg, Greenville, Greenwood, Chester, and Columbia, S. C., and Asheville, N. C.; lard, cooking oil, and sugar from Savannah to "practically every point in North Carolina and South Carolina"; coconuts from New York City to Columbia, Chester, Greenville, Gaffney, Greenwood, Spartanburg, Union, and Woodruff, S. C., and Asheville; and apple products from Winchester, Va., to Spartanburg, Gaffney, Union, Woodruff, Greenville, and Columbia. Loyless also transported a substantial volume of cotton factory products from Lyman to Charleston for movement beyond by boat to points in other States and to points outside the United States.

42 M. C. C.

It will be observed that Loyless, according to his oral testimony, conducted various operations in North Carolina, South Carolina, and Georgia, but that all traffic to any point north thereof consisted of cotton or rayon textile products and empty drums. Return loads consisted of miscellaneous commodities. In those instances where no arrangements had been made for a return load, the driver was "instructed to pick up a load of any commodity going anywhere in the States that I served."

In support of its claims, applicant at the initial hearing herein placed in evidence an abstract listing approximately 2,300 shipments which were purportedly transported by its predecessor, Loyless, between October 3, 1933, and August 31, 1936, from and to various points, which were said to be illustrative and representative of the nature and extent of the operation on June 1, 1935, and since. The shipping papers from which the abstract was compiled were available at the hearing for the inspection of the parties but were not placed of record. It was testified that Loyless retained freight bills or receipts covering shipments which he transported prior to June 1, 1935, but that his wife burned some such records during the latter part of 1935 or in the first part of 1936. Such records as were preserved were released to applicant upon acquiring the operation, and, from these, the above-described abstract was compiled. Multiple shipments moving ultimately to various destination points were transported practically every day from Lyman to Charleston. Of the total shipments transported by Loyless during the period of his operation, approximately 1,050 were handled between June 1, 1934, and June 1, 1935. Of these, approximately 970 consisted of cotton factory products which moved from Lyman to Charleston. Of those remaining, approximately 25 moved between points in South Carolina and so far as the record indicates were intrastate in character. It was admitted that certain other shipments were not transported on bills of lading issued by Loyless but were handled for other carriers on their bills and under their responsibility. With applicant's consent, these were stricken from the abstract.

The abstract shows that between June 1, 1934, and June 1, 1935, the bulk of the shipments of cotton factory products from Lyman to points other than Charleston moved to Macon and Savannah. However, cotton factory products were also transported from Lyman to High Point, Yadkin, Cooleemee, Charlotte, and Winston-Salem, N. C., and Washington, from Spartanburg to Macon, and Charlotte, and from Cooleemee and Taylors, S. C., to Macon. In addition, petroleum products, in containers, were transported from Baltimore to Columbia, S. C., empty barrels from Lyman to Charlotte, sugar

from Port Wentworth, Ga., to Laurens, Gaffney, and Woodruff, S. C., lard and lard substitute from Savannah to Spartanburg, household goods from Spartanburg to Marion, winding boards and labels from Greenville, N. C., to Hartsville, S. C., textile machinery and "B T Gum" from Lyman to Charleston and "tierces of MFB" from Savannah to Spartanburg. Only single or sporadic shipments of the abovedescribed commodities were shown to have been transported, except cotton factory products, which were transported with some degree of regularity and substantiality from Lyman to Charleston, Macon, and Savannah.

Between June 1 and August 31, 1936, the bulk of the shipments transported continued to be cotton factory products from Lyman to Charleston, although a substantial number were also transported to Savannah, Baltimore, and Sunbury. One shipment was transported from Lyman to Macon. The only other commodities which moved between the same points, as during the year immediately prior to the statutory date, were one shipment of sugar which was transported from Port Wentworth to Laurens and three of textile machinery from Lyman to Charleston. Numerous shipments of cotton factory products were transported from Lyman to Baltimore, and of cooking oil from Savannah to points in North Carolina and South Carolina. Single or sporadic shipments of the following commodities were transported in the manner indicated: Drums of asphalt from Lyman to Metter, Ga., soap and paste from Newark to Lyman, empty drums from Lyman to each of Newark and Jersey City, cotton factory products from Lyman to Philadlephia, cylinders from Lyman to Bound Brook; and oil and grease (in containers) from Petty Island, N. J., to Spartanburg.

A former driver for Loyless testified that during the period of his employment, for approximately a year from the spring of 1934, he transported the following commodities in the manner shown, and that they were representative of the operations then conducted by Loyless: Cotton piece goods from Lyman to Charleston, Philadelphia, Baltimore, Savannah, and Macon; steel drums from Lyman to Jersey City and Newark; rayon from Greenville to New York City; cotton yarn from Fingerville to Philadelphia; textile machinery between Tuca pau, S. C., and Augusta; lard from Savannah to "a number of places in North Carolina and South Carolina"; sugar from Savannah to Greer, S. C.; pulpboard from Cedartown to Lyman; stoves from Rome, Ga., to Whiteville, Henderson, and Charlotte, N. C.; tapioca from Savannah to Lyman; cornstarch from Sayannah and Norfolk to Lyman; soap paste from Newark to Lyman; dried apples from Winchester to Spartanburg and Greenville; and cranberries from Hammonton, N. J., to Asheville, Greenville, and Greenwood.