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March 1973, inability to secure motor common carrier service from Kansas City forced a shutdown of his entire plant. This witness indicated that his company could substantially reduce its inventory if it could secure overnight service, that if the application is granted, he would tender all of his transportation business to the applicant, amounting to about 20 shipments a month, averaging 1 00 to 19,000 pounds a shipment, and that this would not affect Bethany Express as that carrier does not presently handle his company's business.

Larry Barton of Bethany, who operates a farm machinery and implement supply business there, supports the application, particularly for overnight service from Kansas City to Bethany. At present he uses the services of Bethany Express for incoming shipments of about 70 to 80 shipments a year, averaging about 2,500 pounds a shipment, but is dissatisfied with the service of Bethany Express because of delays in delivery. For example, in June 1972, witness Barton learned from Bethany Express that his merchandise had remained on the docks of Bethany Express for 7 days and the delay cost him the loss of a sale. Again, in December 1972, a connecting carrier refused to deliver his shipment to Bethany Express because the latter did not pay the connecting carrier its portion of the freight charges.

Ray Bartlett, who operates a ready-to-wear store in Bethany, receives one to five shipments a month, averaging 150 pounds, from various States, mostly via the St. Louis gateway. He uses Bethany Express, but has been experiencing problems with that carrier and is not satisfied with its service. On three occasions, involving interline shipments in Kansas City, the connecting carriers required Bartletí to prepay the freight as a condition to delivering it over to Bethany Express. Witness Bartlett supports the application in the belief that he would receive better service than he has now, stating prompt delivery service is an important factor in his business and that he is in need of overnight service.

Witness Bauer operates a retail shoe business in Bethany and receives 20 to 30 shipments a year, each weighing 200 to 300 pounds, from the States of Illinois, New York, and California. He supports the application herein, and although he uses the service of Bethany Express, he avoids using it if at all possible because of his past experience with that carrier regarding the settlement of claims and delivery delays. Witness Bauer no longer makes a claim against Bethany Express because it has not "paid a claim in 25 years."

Witness Powell, who operates a jewelry and music store in Bethany, receives 12 to 15 shipments a month from various States, breaking his orders down into small shipments and using the facilities of United Parcel Service. He has not used the services of Bethany Express for the past year and a half because of unsatisfactory claims experience with that carrier and delays in deliveries, stating that he has five or six unpaid damage and loss claims of 2 years standing against Bethany Express. Witness Powell supports the application, and stated that he would use the applicant's service from St. Louis, Kansas City, and St. Joseph to Bethany for all of his inbound shipments, thereby enabling him to receive larger shipments via the applicant.

Richard Smith of Bethany, who operates an oil and gas business, sells those products at wholesale and retail, as well as tires, batteries, and automobile accessories. Most of the items originate in States other than Missouri and are transported by motor common carrier to Kansas City and thence via Bethany Express to the consignee. He receives on the average of one shipment a month, totally about 50,000 pounds a year. Like other witnesses preceding him, witness Smith indicated that he has experienced difficulty in getting interline carriers to exchange freight with Bethany Express due to the latter's failure to settle freight charges. As a result, delivery delays have occurred, and Smith's business has lost customers. Mr. Smith supports the application and indicated that he would instruct suppliers to use the services of the applicant, and is particularly interested in the proposed overnight service of the applicant from Kansas City to Bethany.

Neil Norris of Bethany, manager of the General Distributing Company, a warehouse distribution center for a chain of variety stores, deals in numerous commodities for some 24 stores. Many of the stores are located in the area covered by the application. Most of the products handled originate in New York and the Southeastern States and reach Bethany through the St. Louis gateway. On the average, witness Norris indicated that his business receives from one to two trailerloads a day, 5 days a week, much of which is routed through the St. Louis and the Kansas City gateways and thence to Bethany via Bethany Express. He indicated that there is no direct common carrier service from St. Louis to Bethany and that it takes from 5 to 6 days for shipments to reach Bethany from St. Louis by way of Kansas City. Witness Norris stated that he has difficulty in adjusting claims against Bethany Express, and although the new management of Bethany Express has settled claims in the amount of $425, he still has some $2,000 worth of unsettled claims against that carrier. Also, this witness stated that unless he prepaid the freight charges from Kansas City to Bethany via Bethany Express, interlining carriers refused to release the freight to Bethany Express, citing numerous recent instances of this type of problem and delays in delivery. To avoid these problems, witness Norris has been picking up shipments in his company's trucks in Kansas City for delivery in Bethany, on the average of one to two trailerloads a week. In support of the application, he represented that he would tender to the applicant all of his transportation business in the event the application is granted.

Robert Brenizer, who operates a meat-processing plant in New Hampton, Mo.. receives one to two shipments a month, primarily spices and paper, weighing 400 to 900 pounds. He uses the facilities to some extent of United Parcel Service for small shipments, and also Bethany Express. However, he uses Bethany Express as little as possible because of poor delivery service by that carrier. He supports the application as he feels that overnight service proposed by the applicant from St. Louis to New Hampton would greatly benefit his business.

John Stevenson, who operates a hardware, propane, and fertilizer business in Hampton, receives an average of three out-of-State shipments a month, weighing from 2,000 to 3,000 pounds, via the St. Louis and Kansas City gateways. From Kansas City, witness Stevenson receives his merchandise via Bethany Express, there being no direct service from St. Louis. He has experienced problems in securing the release of shipments to Bethany Express at Kansas City. Additionally, this witness expressed the view that routing via Kansas City for most of his merchandise is circuitous, time consuming, costly, and causes unnecessary delays in delivery. Although he supports the application in its entirety, he is particularly interested in obtaining the proposed overnight service from St. Louis to New Hampton, as such service would enable him to reduce his inventory substantially.

Witness Kimberling, president of K & W Farm Services of Jamesport, has need for the transportation of inbound shipments of various farm supplies and equipment, and while the applicant presently rves Jamesport from Kansas City, the witness supports the application for overnight service from St. Louis as such service would be more direct and expeditious. Neither Bethany Express nor Circle M serves Jamesport. Over the years, witness Kimberling has found the service of the applicant to be excellent. and indicated that he has control over the transportation needs of his company and would use the applicant substantially if the application is granted.

Witness Saunders operates a general store in Jamesport and receives about two shipments a month mostly from States east of Missouri. Most of his merchandise is routed via the Kansas City gateway where it is interlined with the applicant for delivery in Jamesport. Witness Saunders supports the application for proposed overnight service from St. Louis as it would provide direct line and faster service, and eliminate the more lengthy circuitous routing via Kansas City. From past experience, this witness has found the service of the applicant to be very good."

Donald B. Graham operates a gas and fertilizer business in Pattonsburg and sells heating appliances and hardware. He receives about three shipments a week. In the past, witness Graham has experienced difficulties and delays in the service of Bethany Express because of the fact that interlining carriers are reluctant to release the freight to Bethany Express, unless the freight charges are prepaid. For these reasons, this witness supports the application as he believes the proposed service would be beneficial to his business.

Witness Briggs operates a plumbing and furniture store in Eaglesville, and presently receives his interstate shipments by common carrier at Kansas City, Mo., at which point he picks up the shipments in his own vehicles for further transportation to Eaglesville. He prefers using his own vehicles rather than using Bethany Express because of unsatisfactory claims experience and delays in service with that carrier, citing specific instances of his inability to collect on his claims and poor service on the part of Bethany Express. For these reasons, witness Briggs supports the application.

Phillip Burmeister, superintendent of the Ridgeway School system in Ridgeway, Mo., indicated that the school receives out-of-State shipments two or three times a week from February to September, and about once a week during the remainder of the year, and that it has need for outbound service since 10 percent of the shipments are damaged and must be returned. The school presently uses the services of Bethany Express and United Parcel Service, but witness Burmeister indicated dissatisfaction with the service of Bethany Express in regard to careless handling, damaged shipments and difficulty in the settlement of claims. He supports the application as he believes overnight service from St. Louis to Ridgeway would facilitate shipments and be of great benefit to the school.

124 M.C.C.

248-348 0. 77 - 59

No. MC-123965 (SUB-No. 7)

KEAL DRIVEAWAY COMPANY, EXTENSION-BRIGHTON

MOTOR HOMES

Decided June 14, 1976

On reconsideration, findings in prior order (not printed), decided October 25, 1974,

reversed. Public convenience and necessity found not shown to require operation by applicant as a common carrier by motor vehicle, over irregular routes, of motor homes, in secondary movements, in driveaway service, between points in the United States on and east of U.S. Highway 81, subject to certain restrictions. Application denied.

Thomas R. Kingsley and William P. Sullivan for applicant.
Daniel B. Johnson and John Wilkinson for protestant.

REPORT OF THE COMMISSION ON RECONSIDERATION

DIVISION 1, ACTING AS AN APPELLATE DIVISION, COMMISSIONERS

MURPHY, GRESHAM, AND CLAPP

MURPHY, Commissioner:

By application filed September 5, 1973, as amended, Keal Driveaway Company, a corporation, of Cleveland, Ohio, seeks a certificate of public convenience and necessity authorizing operation, in interstate or foreign commerce, as a common carrier by motor vehicle, over irregular routes, of motor homes, in secondary movements, in driveaway service, between points in the United States on and east of U.S. Highway 81, restricted against the transportation of vehicles which have previously been transported in initial movements from Bridgeport, Conn., Fort Wayne, Ind., Pontiac, Mich., Mount Clemens, Mich., or Springfield, Ohio. The application is opposed by Auto Driveaway Company, a common carrier.

The modified procedure was followed. In a prior order, decided October 25, 1974 (not printed), Review Board Number 2 granted the application in its entirety. In reaching this conclusion, it found that although Auto Driveaway holds authority to provide the service proposed, shipper's variable transportation needs warrant certification of a carrier capable of meeting shipper's complete requirements. Thereafter, upon consideration of the record, a petition for reconsideration (or in the alternative, for rehearing) filed by protestant, and the reply thereto by applicant, and for good cause shown, we reopened the proceeding for reconsideration on the present record by order entered February 2, 1976.

In its petition, protestant argues that applicant has failed to establish a prima facie case; that the evidence does not indicate that applicant's service would be superior to that of protestant's or reveal other factors that would militate in favor of a grant of authority; and that protestant's service should be tested prior to the authorization of competing service. In reply, applicant contends that protestant has not affirmatively established that it is able to accommodate the need shown; that, in any event, a finding of inadequacy of existing service is not indispensable to a grant of operating authority, and that the evidence justifies the review board's decision.

The evidence, the review board's order, and the pleadings have been considered. Although we disagree with the review board's ultimate findings, we find its statement of facts to be substantially correct, and as supplemented and modified herein, we adopt that statement as our own. The facts will be restated only to the extent necessary for clarity of discussion.

THE PERTINENT FACTS

Applicant is a motor common carrier specializing in the transportation of various types of motor vehicles and offering both driveaway and truckaway service. As here pertinent, it holds certificated authority to transport commercial automotive vehicles, automobiles, trucks, and chassis, in secondary movements, in driveaway service, between the points sought herein.' It maintains a terminal at Cleveland, Ohio, as well as at Atlanta, Ga., and states that it is willing to establish additional driveaway facilities to serve the supporting shipper's Brighton, Mich., plant. For a number of years applicant held itself out to perform the involved service under its "commercial automotive" authority and conducted such

'Applicant also holds authority to transport motor vehicles and motor vehicle chassis, in initial movements, in driveaway and truckaway service, and bodies, cabs, and parts of and accessories for such vehicles, from the plantsite of supporting shipper herein in Pulaski County, Va., to points in the United States (except Alaska and Hawaii).

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