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No. MC-312851

TOWER TRUCKING COMPANY, INC., CONTRACT
CARRIER APPLICATION

Submitted November 30, 1942. Decided July 19, 1943

1. In No. MC-31285, upon further hearing, findings in prior report, 30 M. C. C. 139, reversed. Applicant found entitled to continue operations as a common carrier by motor vehicle of general commodities, with certain exceptions, from specified points in West Virginia and Ohio to certain portions of Georgia, North Carolina, and South Carolina, and of specified commodities from Pittsburgh, Pa., to Atlanta, Ga., and from certain portions of Georgia, North Carolina, and South Carolina to Wheeling, over irregular routes, by reason of its having been engaged in such operations 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.

2. In No. MC-31285 (Sub-No. 1), public convenience and necessity found not to require operations by applicant as a common carrier by motor vehicle of general commodities, between certain points and territories in Ohio, West Virginia, and Pennsylvania, on the one hand, and, on the other, points in Georgia, North Carolina, and South Carolina, over regular and irregular routes. Application denied.

Additional appearances: Donald Macleay for applicant; and W. O. Mason, Jr., N. V. Hutchinson, Jr., and C. H. Noah for protestants. Other appearances shown in prior report.

REPORT OF THE COMMISSION 2

DIVISION 5, COMMISSIONERS MAHAFFIE, ROGERS, AND PATTERSON BY DIVISION 5:

The title proceeding herein, after a prior report, 30 M. C. C. 139, was further heard with the subnumbered proceeding on a consolidated record, and both were made the subject of a single report and recommended order by an examiner. Exceptions were filed by applicant to the recommended order. Our conclusions differ from those recommended.

By application No. MC-31285, as amended at the hearing, filed February 3, 1936, under the "grandfather" clauses of sections 206 (a) and 209 (a) of the Interstate Commerce Act, Tower Trucking

1 This report also embraces No. MC-31285 (Sub-No. 1), Tower Trucking Company, Inc., Extension of Operations-West Virginia, etc.

2 On further hearing in No. MC-31285.

Company, Inc., of Wheeling, W. Va., seeks a certificate of public convenience and necessity, or a permit, authorizing operation, in interstate or foreign commerce, as a common or contract carrier by motor vehicle of general commodities, except those of unusual value, dangerous explosives, and commodities in bulk, between all points in West Virginia, and those in Pennsylvania and Ohio within 40 miles of Pittsburgh, Pa., on the one hand, and, on the other, all points in North Carolina and South Carolina, and those in Georgia on and north of U. S. Highways 80 and 280, over irregular routes, and certain regular routes, which need not be described in view of the conclusions reached. In the prior report, 30 M. C. C. 139, we found that applicant had failed to establish that it was in bona fide operation, in interstate or foreign commerce, as a common carrier by motor vehicle, on June 1, 1935, and the application was denied. Later, upon petition of applicant, the order was vacated and set aside, and the proceeding reopened for further hearing.

By application No. MC-31285 (Sub-No. 1), filed September 12, 1941, the same applicant seeks a certificate of public convenience and necessity authorizing operations, in interstate or foreign commerce, as a common carrier by motor vehicle of general commodities, between the same points and over the same routes as sought in the “grandfather" application. Motor and rail carriers operating between points in Ohio, Pennsylvania, and West Virginia, and points in the South, oppose both applications.

Preliminary issues.-The finding in the prior report that applicant was not engaged in bona fide operations as a common carrier by motor vehicle was based upon the conclusions that applicant, on June 1, 1935, was transporting freight only in vehicles belonging to others and that there was no evidence tending to show that the direction and control of such vehicles, or responsibility to shippers and to the general public was assumed by applicant. In the absence of such evidence, we were unable to find it to be a common carrier under the principles set forth in Dixie Ohio Exp. Co. Common Carrier Application, 17 M. C. C. 735. At the further hearing, however, it was established that, in February and March 1935, applicant purchased 2 tractors, 2 semitrailers, and 1 truck. These vehicles were operated under applicant's direction and control, and under its responsibility to shippers and to the general public on and prior to June 1, 1935. In addition, several units were leased from 2 owner-operators under oral agreements. Although the leased equipment did not bear applicant's name, cargo, public-liability, and property-damage insurance was paid for by applicant, which also assumed full responsibility to shippers and to the general public for the operation of such equipment and for the freight carried therein, in the same manner as if such

freight had been transported in its own vehicles. Applicant paid all loss and damage claims, regardless of whether the freight was carried in leased, or owned, equipment. The owner-operators were required to observe all instructions of applicant concerning routing and the disposition of freight. At the time of the second hearing, applicant operated 20 tractor-trailer units, of which 14 were owned and the balance operated under written leases with owner-operators. Under such leases, the vehicles are operated under the direction and control of the applicant, and it assumes full responsibility to shippers and to the public. On these facts, we conclude that applicant's operations, on and since June 1, 1935, were those of a common or contract carrier by motor vehicle as defined in the act.

Affidavits.-Applicant's president introduced a number of sworn statements made by certain shippers who were not present at the hearing, representing that their traffic had been transported by applicant prior to and since June 1, 1935, to and from several points and territories covered by the application. The objections of protestants to the admission of such statements in evidence were sustained by the examiner. Applicant excepted to this ruling, stating that its records prior to March 1936 were destroyed by the Ohio River flood during the spring of 1936, and that such affidavits were the best evidence available from those shippers. That the ruling of the examiner was correct is clear. The testimony of the affiants would have been received readily, but to accept the affidavits would deprive protestants of their opportunity to cross-examine.

Operations in general.-Applicant was incorporated in February 1935, under the laws of West Virginia, and has continuously since that time transported the traffic of certain shippers and manufacturers at Wheeling and at points in an area surrounding Wheeling.

Prior to 1937, it considered itself a contract carrier and entered into individual contracts with each shipper served. In that year, after a conference with certain representatives of the Commission, it revised its views as to its status and filed tariffs as a common carrier. It does not appear that the service offered by applicant on or subsequent to June 1, 1935, was restricted to specially selected shippers. On the contrary, such service appears to have been available to any shipper desiring it. In the circumstances, the operations considered appear to have been and to be those of a common carrier by motor vehicle, and we so find.

Although applicant seeks authority to operate over regular routes, it has never conducted a regular service over any route nor served any intermediate points on certain claimed routes. Its service is and has been one over irregular routes.

Six representatives of the shippers and manufacturers served by applicant, an owner-operator in applicant's employ, and its president testified, and various lists of shipments, supported by original shipping papers which were on hand for examination by all parties but not placed on record, were received in support of the application. Applicant's documentary evidence of operations prior to March 1936 were destroyed in the Ohio River flood of early spring of that year. The lists of shipments representative of the operations between January 1935 and March 1936 were compiled from a few shipping documents which several shippers were able to locate in their files. The abstracts covering the months from March 1936 to February 1942 list only representative shipments, and applicant's president stated that the abstracts covering 1936 are representative of its operations on and prior to June 1, 1935. Analysis of this evidence reveals that applicant's operations have been limited both as to points served and commodities transported, and that the service rendered in one direction has been different from that rendered in the other. Since the south-bound operations are essentially different from the north-bound operations in the commodities transported, they will be discussed separately.

South-bound operations.-On June 1, 1935, applicant's south-bound operations consisted of the transportation of finished cotton fabrics, chemicals, iron and steel products, floor and wall tile, paper articles, collapsible metal tubes, various products of tin, and food products. Most of this traffic originated at Wheeling. However, other origins near Wheeling were served, namely, Clarksburg, Mannington, Wellsburg, Follansbee, and Glendale, W. Va., and Martins Ferry, Ohio, hereinafter referred to as the Wheeling area. Such south-bound traffic moved to points in Georgia on and north of a line extending from Augusta westerly through Macon to Columbus, and to points in North Carolina and South Carolina, on, north, and west of U. S. Highway 1. Since June 1, 1935, applicant has continuously served the same general territories, although the range of commodities transported has widened to some extent and the volume of traffic has substantially increased. Many of the commodities are carried principally to certain points only, while other commodities are transported to varying destinations. It would, however, be impracticable to grant applicant authority to transport specific commodities from and to certain origins and destinations. Applicant has never restricted its south-bound operation to the transportation of specific commodities, and, in our opinion, the south-bound service has been and is that of a general-commodity carrier from Wheeling, Martins Ferry, Clarksburg, Mannington, and all points in West Virginia within 30 miles of Wheeling to all points in the portions of Georgia, North Carolina,

and South Carolina previously described. Authority will be granted accordingly.

Applicant also claims "grandfather" rights to transport general commodities between Pittsburgh, Pa., and all points in Pennsylvania and Ohio within 40 miles of Pittsburgh, on the one hand, and, on the other, all points in Georgia, North Carolina, and South Carolina. On June 1, 1935, the only points served in Ohio and Pennsylvania were Martins Ferry and Pittsburgh. Applicant's service from Martins Ferry was described in the preceding paragraph and need not be further alluded to. The service from Pittsburgh on June 1, 1935, consisted of the transportation of canned or preserved foodstuffs for H. J. Heinz & Company to Atlanta, which service has been continuously conducted since that time. There is also oral testimony that in addition, applicant transported occasionally for the same company to Atlanta other articles used in its warehouse at that city. However, there is nothing of record to indicate continuity of movement of commodities other than foodstuffs.

No other commodities are shown to have been transported by applicant from points in Pennsylvania until 1937. In that year the applicant began transporting occasional shipments of commodities, such as petroleum and electrical products from Pittsburgh and several other origins in adjacent territory. Although it claims to have held itself out to transport general commodities from these points during the critical period, no explanation was offered for its failure to transport traffic other than foodstuffs prior to 1937. It, accordingly, seems logical, taking into consideration its limited number of vehicles, to conclude that applicant made a practice of operating from other than its principal source of traffic, the Wheeling area, only when the Heinz Company offered shipments for transportation. Under such circumstances, its holding out, if any, to carry numerous other commodities from and to these points may be disregarded. It follows that applicant has failed to establish "grandfather" rights from and to points in the Pittsburgh area, other than for the transportation of foodstuffs from Pittsburgh to Atlanta.

North-bound operations.-Applicant's only service north-bound on or prior to June 1, 1935, and continuously thereafter, was and has been the transportation of unfinished cotton piece goods from mills in Georgia, North Carolina, and South Carolina to Wheeling for J. L. Stifel & Sons of that city. The cotton mills served are located at points in those portions of Georgia, North Carolina, and South Carolina which applicant serves in the south-bound movement. There is no claim of any general-commodity holding out north-bound. Even if there were, it could properly be disregarded in view of the limited nature of the operations actually conducted.

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