No. MC-49126 1

LUCY F. ZIMMERMAN, ADMINISTRATRIX OF THE ESTATE OF ORLANDO ZIMMERMAN, CONTRACT CARRIER APPLICATION

Submitted April 11, 1940. Decided March 5, 1941

1. Present and proposed operations found to be those of a common carrier. 2. Applicant in No. MC-49126 found entitled to continue operation as a common carrier by motor vehicle, of special commodities, between specified points in Indiana, Illinois, Ohio, and Missouri, over irregular routes, by reason of applicant's having been engaged in such operations on June 1, 1935, and continuously since.

3. Public convenience and necessity found to require operation by applicant as a common carrier by motor vehicle of paper boxes, knocked down, scrap paper, wood pulp, strawboard, paper-mill machinery and parts thereof, and animal and poultry feeds, between specified points or areas in Michigan, Indiana, Illinois, Ohio, and Missouri, over irregular routes.

4. Issuance of a certificate approved upon compliance by applicant with certain conditions, and applications denied in all other respects.

Edwin C. Boswell for applicant.

0. R. Livinghouse, George O. Cowan, and T. J. Minich for protestants.

REPORT OF THE COMMISSION

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

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

By application in No. MC-49126, filed February 12, 1936, under the "grandfather" clause of section 209 (a) of the Interstate Commerce Act, Orlando Zimmerman, of Knightstown, Ind., doing business as Zimmerman Trucking Service, sought a permit authorizing continuance of operation in interstate or foreign commerce as a contract carrier by motor vehicle of nails, barbed wire, fence posts, bale ties, fence wire, pipe and other steel and wire products, canned goods, paper stock, feed, meat scraps, tankage, fertilizer, and packing-house

'This report also embraces No. MC-49126 (Sub-No. 2), Lucy F. Zimmerman, Administratrix, Extension of Operation-Michigan.

byproducts, between points in Indiana, Ohio, Michigan, Kentucky, and Illinois, and St. Louis, Mo., over regular and irregular routes.

By another application in No. MC-49126 (Sub-No. 2), filed June 20, 1938, the same applicant also sought a certificate of public convenience and necessity to operate as a common carrier of paper boxes, knocked down, in truckload lots, from Anderson, Ind., to points in Michigan; strawboard and boxboard from Carthage, Ind., to points in Illinois; scrap paper, in bales, from points in Michigan, and Cincinnati, Ohio, to Carthage; and wood pulp from Detroit, Mich., to Carthage.

These applications were heard on separate records, but they will be disposed of in one report. Rail and motor carriers opposed the granting of the application in No. MC-49126, and in No. MC-49126 (Sub-No. 2) only rail carriers opposed the application.

Subsequent to the filing of the applications, Orlando Zimmerman died, and Lucy F. Zimmerman was, by court order, appointed administratrix of his estate, and has continued to conduct the transportation business of the deceased. We will consider the applications as amended to show the administratrix as applicant.

Applicant's predecessor commenced motor-carrier operations in 1931, and has operated under appropriate authority from the States of Indiana, Ohio, and Michigan. Applicant testified that operations into St. Louis require no authority from Missouri. Her predecessor was registered under the code of fair competition for the trucking industry. At the time of hearing applicant owned 16 tractors and 16 trailers. She testified that all of the transportation service rendered by her predecessor was rendered under contract with various shippers, and that this transportation had always been confined to paper goods, canned goods, wire and steel products, feed, and fertilizer; that there had been no general solicitation; and that there was no intention to change in any way this mode of operation. At the time of filing, applicant's operations were being conducted under written contracts which have since been filed with this Commission.

Protestants contend that the operations of applicant and her predecessor are and have been those of a common carrier. The record does not show that the services rendered by applicant are special or individual services which are adapted to the peculiar needs of the shippers, or are in any way different from those offered by common carriers. We are of the opinion that the past and proposed operations are those of a common carrier.

Applicant submitted schedules of representative shipments transported between April 7, 1934, and December 31, 1938. These schedules indicate that applicant has transported various commodities as

set forth in our findings herein prior to and since July 1, 1935. They, also indicate that prior to July 1, 1935, applicant transported animal and poultry feed from Riverdale, Ill., and St. Louis to four Indiana points. To avoid duplication of authority, this transportation is included in our findings herein under No. MC-49126 (Sub-No. 2). Applicant also transported boxboard from Cincinnati to Anderson, Ind., and Marion, Ind. However, a witness for applicant testified that such transportation was discontinued on January 1, 1938. Transportation of fencing materials, strawboard, feed, and canned goods is shown to have been performed to a number of points prior to July 1, 1935, to which points no transportation has been rendered since. It therefore cannot be found that these operations have been continuous within the meaning of section 206 (a) of the act. It is also shown by the schedules that transportation of these commodities has been rendered to a number of points subsequent to the statutory date which were not being served prior thereto.

Representatives of three concerns dealing in animal and poultry feed testified that applicant has transported animal and poultry feeds from Chicago, Riverdale, and St. Louis to various Indiana points prior to and since the statutory date. An assistant traffic manager of the Container Corporation of America, located at Chicago, Ill., testified that since prior to June 1, 1935, he has employed the services of applicant in the transportation of strawboard, boxboard, pulpboard, and knocked-down paper boxes. The testimony of these witnesses substantiates facts contained in applicant's exhibits. Extension application.-At the hearing in No. MC-49126 (Sub-No. 2), the same witness who represented the Container Corporation of America in No. MC-49126 testified that that corporation is the manufacturer of various types of boxboard and paper boxes and that it maintains plants at Cincinnati, Red Bank, Circleville, Dayton, and Middletown, Ohio, and Carthage and Anderson, Ind. He stated that applicant's terminal was conveniently located to these Indiana plants and her services had proved satisfactory to the corporation, and that the corporation desired to employ applicant for the transportation of its products and scrap paper, wood pulp, and paper-mill machinery and parts thereof, between points in Indiana, Ohio, Illinois, and Michigan in the territory outlined in our finding herein. He stated that the present motor-carrier service from Anderson and Carthage is not as well adapted to the needs of his corporation as that offered by applicant, and that sufficient motor-carrier service was not available at all times properly to meet the requirements of the corporation's plants. No motor carrier opposed the granting of the authority sought, and there is nothing in the record to indicate

any adverse effect upon such carriers in the event such authority is granted.

This witness further testified that the rail service between Anderson and Michigan points was not suitable to the needs of his corporation because of the fact that applicant was able to render overnight service to all Michigan points intended to be served, whereas rail deliveries were 2 to 4 days after the date of shipment. Witnesses presented by rail protestants did not controvert this statement but did testify that the railroads possess sufficient equipment to perform the contemplated service. As the application requests authority to transport paper boxes, knocked down, in truckloads, and the record indicates that the minimum shipments will be 12,000 pounds, the authority granted will contain such a restriction.

Applicant professes knowledge of the motor-carrier safety regulations, has shown a willingness to comply with other existing regulations, and is fit and able, financially and otherwise, properly to perform the contemplated transportation.

We find that prior to June 1, 1935, and continuously since that time, applicant or her predecessor in interest was and has been in bona fide operation as a common carrier by motor vehicle, in interstate or foreign commerce, of strawboard, boxboard, and pulpboard from Carthage, Ind., to Chicago, Ill., and Red Bank, Ohio, and from Circleville, Ohio, to Anderson, Ind., fencing materials from Knightstown, Ind., to Chicago, and from Sterling, Ill., to Knightstown, fence posts from St. Louis, Mo., to Knightstown and Columbus, Ohio, animal and poultry feed from Chicago to Huntington and Indianapolis, Ind., and canned goods from Carthage and Mount Summit, Ind., to Chicago, over irregular routes; and that applicant is entitled to a certificate authorizing continuance of such operations.

We further find that the present and future public convenience and necessity require operation by applicant as a common carrier by motor vehicle of paper boxes, knocked down, in shipments of 12,000 pounds or more, from Anderson to points in Ohio on and north of U. S. Highway 30 and U. S. Highway 30S and to points in Michigan on and south of a line formed by U. S. Highway 10 from Ludington, Mich., to Saginaw, Mich., U. S. Highway 23 from Saginaw to Bay City, Mich., and the shores of Saginaw Bay and Lake Huron from Bay City to Port Huron, scrap paper from points in that portion of Michigan above described, Chicago, Ill., and Cincinnati, Ohio, to Carthage, and from Anderson, Indianapolis, Muncie, and Marion, Ind., to Cincinnati and Red Bank, wood pulp from Toledo, Ohio, Detroit, Mich., and Chicago to Carthage, strawboard from Carthage to Alton and Streator, Ill., and from Circleville to Marion, paper-mill

machinery and parts thereof between Carthage, on the one hand, and Cincinnati, Circleville, Dayton, and Middletown, Ohio, on the other, and animal and poultry feeds from Riverdale, Ill., and St. Louis to points in Indiana, over irregular routes; that applicant is fit, willing, and able properly to perform such service and to conform to the provisions of the act and our rules and regulations thereunder; and that a certificate therefor should be granted.

Upon compliance by applicant with the requirements of sections 215 and 217 of the act and our rules and regulations thereunder, an appropriate certificate will be issued to applicant in her capacity as administratrix of the estate of Orlando Zimmerman. An order denying the applications except to the extent indicated will be entered.

LEE, Commissioner, dissenting:

The examiner recommended the issuance of authority to this applicant to operate as a contract carrier over a much wider territory. In my opinion, the evidence establishes a contract-carrier operation prior to, on, and since the "grandfather" date, over the wider territory recommended by the examiner.

28 M. C. C.