Alabama, Georgia, Kentucky, Ohio, and Tennessee, over the regular routes described in the appendix, and also over irregular routes between Akron and Cincinnati, Ohio, and points in Alabama, Georgia, and Kentucky. The application also contains a prayer for the issuance of a permit, under the "grandfather" clause of section 209 (a) of the act, authorizing the continuance of all or any part of its operations which may be found to be those of a contract carrier by motor vehicle. In accordance with the provisions of section 205 of the act, the application was referred to the examiner for hearing and the recommendation of an appropriate order thereon. Hearing has been held. The granting of the application was opposed by Blue and Gray Transportation Company, Dixie-Ohio Express Company, and the principal railroads operating in the territory described above. Applicant was incorporated in March 1933 and immediately thereafter commenced motor-carrier operations. On June 1, 1935, it had in its service 6 trucks, 49 tractors, and 54 semitrailers. It owned 40 and leased 69 of these vehicles. On that date from 55 to 65 percent of its transportation revenue was received from the transportation of general merchandise for the Universal Carloading and Distributing Company of Cincinnati. While some of that traffic originated or terminated at points north of Cincinnati, most of it moved between Cincinnati and the larger southern points on its routes. From 28 to about 40 percent of its revenue was received from the transportation of cotton fabrics from the textile mills in Alabama and Georgia to the manufacturers of automobile tires and other rubber articles at Akron and other points in Ohio. Specific reference was made to the movement of fabrics from Milstead, Roanoke, Shawmut, and Tallassee, Ala., and Athens, Banning, Cartersville, Cedartown, Columbus, LaGrange, Rockmart, and Thomaston, Ga. So far as indicated, the remaining traffic transported by applicant consisted of shipments in intrastate commerce and of automobile tires and tubes and other rubber products from Akron to Atlanta, Ga., Birmingham, Ala., Columbus, Ga., Chattanooga, Nashville, and Knoxville, Tenn., and Bowling Green, Corbin, and Lexington, Ky., with an occasional movement of scrap tires or other rubber products from southern points to Akron, and sporadic movements of other commodities. None of such other commodities are shown to have been transported both before and since June 1, 1935. Operations over the principal routes between Cincinnati and the southern points named were conducted daily in both directions. The operations north of Cincinnati were extensive, but they do not appear to have been as regular as those south thereof. Applicant at that time maintained offices at Akron, Atlanta, and Cin cinnati and so-called checking stations at numerous other points. The evidence clearly shows, however, that, with few exceptions, applicant had no means of making contacts with the general shipping public at most of the intermediate points on its routes. That is, it neither maintained terminals nor had arrangements with local motor carriers to secure traffic for it. It does not appear, therefore, that applicant was serving points other than those named above; it transported only general merchandise for the Universal Carloading and Distributing Company, and fabrics and rubber products for other shippers. In July 1935, during the consideration by Congress of the proposed measure to regulate motor transportation, applicant concluded that it had been engaged in both common and contract carriage of property and proceeded through its officers and stockholders to organize another corporation, known as G. S. E., Incorporated, to take over the operations which were deemed to have been those of a contract carrier, as defined in the bill. That corporation was issued a charter on July 24, 1935. Applicant apparently leased equipment to G. S. E., Incorporated, with which the latter corporation conducted its operations. The record does not clearly indicate just what operations were taken over by the new corporation, and there is no indication that there was any material change in applicant's method of operating at the particular time. It continued to conduct its business and add equipment until on January 28, 1936, it was operating 10 trucks, 46 tractors, and 63 semitrailers. It owned 67 of these vehicles. Applicant became involved in financial difficulties and on February 1, 1936, filed a petition in the District Court for the Northern District of Ohio seeking relief under section 77B of the Federal Bankruptcy Act. Subsequently a plan of reorganization was submitted and approved by the court. Following the filing of the petition some of applicant's equipment was seized, its insurance was canceled, and it lost the business of the Universal Carloading and Distributing Company. It retained only about six trucks, six tractors, and six semitrailers, of which vehicles it owned only five semitrailers. Protestants claim that applicant entirely ceased operations at times during the period from February 1, 1936, to about June 1, 1936. Applicant was offered the opportunity to submit within a period after the hearing the delivery receipts covering its operations on and after February 1, 1936. There is no proof of the transportation by applicant of any shipment between February 9, 1936, and May 10, 1936. Applicant submitted what purports to be delivery receipts covering one shipment of rubber articles on March 5, 1936, and four shipments of the same articles on March 10, 1936, from Akron to Albany, Ga. Those alleged receipts were not signed and cannot be accepted as evidence. It also submitted, among numerous other delivery receipts covering shipments after May 10, 1936, certain signed delivery receipts on the forms of G. S. E., Incorporated, covering shipments made between March 5, 1936, and June 6, 1936, between certain points. The explanation offered for presenting those receipts is that, since applicant's insurance had been canceled, it was necessary to use G. S. E., Incorporated, as a broker in the transportation of the particular shipments. It is noted that the numbering of the receipts does not correspond to the numbering of the receipts of later date on the forms of applicant. As G. S. E., Incorporated, at that time was a claimant to "grandfather" operating rights as a motor carrier and claimed no authority to engage in brokerage operations, the explanation by applicant is not convincing that the shipments covered by G. S. E., Incorporated, billing were in fact transported by applicant. At any rate, any such operations as claimed would not be bona fide, because of the resort to concealment and deception. It is clear, therefore, that there was an interruption in the service by applicant from February 9, 1936, to May 10, 1936. Such interruption was not due to the court proceedings but rather to applicant's failure to maintain insurance coverage in conformance with the requirements of one or more of the States in or through which it had been operating. The matter of providing the required insurance was within the control of applicant. There was an interruption in service which cannot be said to have been beyond the control of applicant. The examiner finds that applicant has not conducted the described operation continuously since February 9, 1936, and that it is therefore not entitled to either a certificate or a permit as a carrier of property by motor vehicle, in interstate or foreign commerce, between the points described or over the routes set out in the appendix. The application should be denied. It is recommended that the appended order be entered. APPENDIX Regular routes specified in application Route 1, between Cleveland, Ohio, and Mobile, Ala.: From Cleveland over U. S. Highway 42 to Louisville, Ky.; U. S. Highways 31-E or 31-W to Nashville, Tenn.; thence U. S. Highway 31. Route 2, between Cleveland, Ohio, and Columbus, Ga.: From Cleveland over U. S. Highway 21 to its junction with Ohio Highway 5 near Barberton, Ohio; Ohio Highway 5 to Wooster, Ohio; Ohio Highway 3 to Columbus, Ohio; U. S. Highway 62 to Ripley, Ohio; U. S. Highway 68 to Lexington, Ky.; thence U. S. Highway 27. Route 3, between Toledo, Ohio, and the Alabama-Mississippi boundary near Cuba, Ala.: From Toledo over U. S. Highway 25 to Corbin, Ky.; U. S. Highway 25-W to Knoxville, Tenn.; thence U. S. Highway 11. Route 4, between Cleveland, Ohio, and Delaware, Ohio: From Cleveland over U. S. Highway 422 to Youngstown, Ohio; U. S. Highway 62 to Canton, Ohio; U. S. Highway 30 to Marion, Ohio; thence U. S. Highway 23. Route 5, between Youngstown, Ohio, and Dayton, Ohio: From Youngstown over Ohio Highway 18 to Akron, Ohio; U. S. Highway 224 to Findlay, Ohio; U. S. Highway 68 to Springfield, Ohio; thence Ohio Highway 4. Route 6, between Washington Court House, Ohio, and Cincinnati, Ohio, over U. S. Highway 22. Route 7, between Lafayette, Ohio, and Springfield, Ohio, over U. S. Highway 40. Route 8, between Akron, Ohio, and Canton, Ohio, over Ohio Highway 8. Route 9, between Georgetown, Ky., and Frankfort, Ky., over Kentucky Highway 40. Route 10, between Horse Cave, Ky. and U. S. Highway 31-E, over U. S. Highway 68. Route 11, between Nashville, Tenn., and Valdosta, Ga., over U. S. Highway 41. Route 12, between Murfreesboro, Tenn., and Columbus, Ga., over U. S. Highway 241. Route 13, between Chattanooga, Tenn., and Columbia, Tenn.: From Chattanooga over U. S. Highway 72 to Sheffield, Ala.; U. S. Highway 43 to the Alabama-Tennessee boundary; thence Tennessee Highway 6. Route 14, between Cleveland, Tenn., and Dalton, Ga.: From Cleveland over Tennessee Highway 60 to the Georgia-Tennessee boundary; thence Georgia Highway 71. Route 15, between U. S. Highways 11 and 27, over U. S. Highway 70. Route 16, between U. S. Highways 11 and 25-W west of Knoxville, Tenn., over county road. Route 17, between Dothan, Ala., and Montgomery, Ala., over U. S. Highway 231. Route 18, between Tallassee, Ala., and U. S. Highway 80, over county road. Route 19, between Livingston, Ala., and Columbus, Ga., over U. S. Highway 80. Route 20, between Jasper, Ala., and Augusta, Ga.: From Jasper over U. S. Highway 78 to Atlanta, Ga.; thence Georgia Highway 12. Route 21, between Georgia-South Carolina boundary near Hartwell, Ga., and Tuskegee, Ala., over U. S. Highway 29. Route 22, between Athens, Ga., and Augusta, Ga., over U. S. Highway 78. Route 23, between Macon, Ga., and Savannah, Ga., over U. S. Highway 80. Route 24, between Griffin, Ga., and Thomasville, Ga., over U. S. Highway 19. Route 25, between Cedartown, Ga., and Austell, Ga., over Georgia Highway 6. Route 26, between Rome, Ga., and Cass, Ga., over U. S. Highway 411. Route 27, between Lawrenceville, Ga., and Buford, Ga., over U. S. Highway 23. Route 28, between Covington, Ga., and Porterdale, Ga., over Georgia Highway 81. 9 M. C. C. No. MC-43169 WILLIAM BARHITE CONTRACT CARRIER APPLICATION Decided July 30, 1938 1. Applicant's operation found to be that of a common carrier. 2. Applicant found entitled to continue operation as a common carrier by motor vehicle, of fertilizer, in truckloads, from Carteret, N. J., to Lyons and Medina, N. Y., over specified routes, by reason of having been engaged in such operation on June 1, 1935, and continuously since that time. Certificate granted. 3. Public convenience and necessity found to require continuance of operation by applicant as a common carrier by motor vehicle, of canned goods, in truckloads, from Medina, N. Y., to Pittsburgh, Pa., over specified routes. Certificate granted. Ralph W. Simson for applicant. REPORT OF THE COMMISSION DIVISION 5, COMMISSIONERS EASTMAN, CASKIE, AND ROGERS BY DIVISION 5: On June 30, 1938, the following recommended report and a recommended order appended thereto, filed with us by joint board No. 67, were served on the parties. No exceptions to the order were filed, but on July 20, 1938, we postponed to July 30, 1938, the date on which the said order should become the order of the Commission and become effective. Not having been stayed or further postponed by us, it has become effective as our order. REPORT AND ORDER RECOMMENDED BY JOINT BOARD NO. 67, COMPOSED OF THOMAS L. HANSON OF NEW JERSEY AND RICHARD J. BEAMISH OF PENNSYLVANIA By application1 filed February 11, 1936, William Barhite, of Medina, N. Y., seeks a permit authorizing operation, in interstate or foreign commerce, as a contract carrier by motor vehicle, of canned goods and fertilizer, between Medina and Lyons, N. Y., on the one hand, and Carteret, N. J., and Pittsburgh, Pa., on the other, over specified routes. In accordance with the provisions of the Motor Carrier Act, 1935, the application was referred to joint board No. 67 for hearing and 1 Under the "grandfather" clause of section 209 (a) of the Motor Carrier Act, 1935. |