spect to the manner of their employment. None of the owner-operators retained any records of the transportation performed by them other than the bills for their service rendered to the company. They have always operated under the company's direction and control, with reference to the commodities to be transported and the routes to be followed. Those who testified made it clear that they have always received bills of lading, covering the shipments which they transported, from shipping clerks at the plants of the steel companies, and that the bills of lading designated routing in the name of the company. It appears that the owner-operator was not concerned with the weight of the shipment transported, so long as the bill of lading showed routing over the line of its employer.

The owner-operators apparently desire to continue working for the company, or some other carrier possessing operating rights, the same as they have done in the past. As indicated, they have had no direct contact or contractual relations with any shippers served while operating under the name of the company.

Conclusions and findings.-As seen, the company conducts its operations by the use of vehicles owned and operated by it, and also by means of owner-operators. Insofar as operations are carried on directly by its own vehicles, it is clear that to such extent the company is a common carrier under the act. We have for consideration, then, the company's status relative to operations conducted indirectly by the use of vehicles and services of owner-operators.

In Dixie Ohio Exp. Co. Common Carrier Application, 17 M. C. C. 735, we held that operations by owner-drivers when under a carrier's direction, control, and responsibility become the operations of such carrier. That finding is equally applicable with respect to the operations involved in the instant proceedings. If, while being used by the company the vehicles of the owner-operators were operated under its direction and control and under its responsibility to the general public as well as to the shipper, then its operations in which such vehicles were employed come within the phrase "or by a lease or any other arrangement" of section 203 (a) (14) of the act, and the company as to such operations was and is a common carrier by motor vehicle.

As noted, the traffic transported in the vehicles of the owneroperators moved under bills of lading issued by the company. The company held itself out to the shipping public to render the service performed by such carriers. It designated the commodities to be transported, the time when the transportation was to be performed, and the route to be used. So far as the shippers were concerned, but one service was held out, and that was the service of the company. The owner-operators furthered this holding out by displaying the

company's name on their vehicles. It has been observed that the various owner-operators operated under the State operating authorities held by the company, since they possessed none of their own, with the single exception of applicant in No. MC-44908, which claimed to hold a certificate from Ohio covering intrastate operations in that State. In the circumstances, we conclude that the ownerdrivers operated under the company's direction and control and under its responsibility to the general public as well as to the shipper, and that the company, as to its operations in which such vehicles were employed, was and is a common carrier by motor vehicle as defined in section 203 (a) (14). It is evident, therefore, that the company is entitled to authority based on the use of equipment of ownerdrivers. At the same time, we conclude that the owner-drivers herein have not established any right to a certificate or permit under the "grandfather" clauses of the act, and that their applications should be denied.

We find that applicant (the company) in No. MC-78228 was, on June 1, 1935, and continuously since has been, in bona fide operation as a common carrier by motor vehicle, in interstate or foreign commerce, of steel and steel products, nonferrous metals, machinery, supplies, and lumber, used by steel companies, between points in Ohio, those in that part of New York west of a line beginning at Lake Ontario and extending along U. S. Highway 15 to Lakeville, N. Y., thence along alternate U. S. Highway 20 to Geneseo, N. Y., thence along New York Highway 63 to its junction with New York Highway 16, thence along New York Highway 16 to Olean, N. Y., and thence along New York Highway 16A to the New York-Pennsylvania State line, including points on the indicated portions of the highways specified, those in Pennsylvania on and west of U. S. Highway 219, and those in West Virginia on and north of U. S. Highway 50 from the Maryland-West Virginia State line to the West VirginiaOhio State line; and between Ashland, Ky., on the one hand, and points in Ohio and those in the above-described New York, Pennsylvania, and West Virginia areas, on the other, over irregular routes; and that applicant is entitled to a certificate authorizing the continuance of such operations.

We further find that the other applicants herein have not established rights either to certificates as common carriers by motor vehicle or to permits as contract carriers by motor vehicle, in interstate or foreign commerce, between the points described in their respective applications, and that these applications should be denied. Upon compliance by applicant (the company) in No. MC-78228 with the requirements of sections 215 and 217 of the act, and with

our rules and regulations thereunder, an appropriate certificate will be issued. An order will be entered denying this application except to the extent granted herein.

LEE, Commissioner, concurring in part:

Applicant, The J. Miller Company, on and since June 1, 1935, owned approximately 40 vehicles, which were operated under its direction and control and under its responsibility to the general public. I am of the opinion that its operations, conducted in these vehicles, entitle it to the authority awarded.

I do not agree with the conclusion in the report that the vehicles of the owner-operators, used in connection with the J. Miller Company's operations, were operated under its direction and control and under its responsibility to the general public. The evidence as to the terms of its oral agreements with the owner-operators prior to 1936 is meager. However, in that year it began entering into written agreements, which designated it as the "Shipper" and the owneroperator as the "Carrier", and which contained, among others, the following provisions:

It is to be clearly understood and it is the intention of the parties hereto that Carrier shall employ all persons operating trucks hereunder and that such persons shall be and remain the employes of Carrier, and that the Carrier shall be an independent contractor and nothing herein contained shall be construed to be inconsistent with that relationship or status. *

Carrier agrees to receive from Shipper such quantities of Shipper's goods as may be tendered Carrier for transportation from time to time, that each and every shipment of Shipper's goods received by Carrier, either from Shipper direct or from a third person, firm, or corporation, shall be transported by Carrier under the terms and conditions of this contract, it being herein expressly agreed by the Carrier that the terms of this contract shall be incorporated by reference into each and every such contract of transportation or shipment by the acceptance by Carrier of the goods of the Shipper and or issuance of receipt therefor, either to Shipper or to the third persons.

Carrier agrees, upon receipt of the goods of the Shipper, whether direct from Shipper or from third persons, to transport and carry such goods without delay and deliver them in like good order and condition to the consignees at the destinations directed by Shipper.

Carrier whether a common, contract or private carrier hereby assumes the liability of an insurer of the prompt and safe transportation of all goods entrusted to its care, and shall be responsible to Shipper for all loss or damage of whatsoever kind and nature and howsoever caused to any and all goods entrusted to Carrier hereunder occurring, while same remains in the care, custody or control of Carrier or to any other person to whom the Carrier may have entrusted said goods and before said goods are delivered as herein provided or returned to shipper.

It is clear from these provisions that the transportation covered by the agreements was to be performed by the owner-operators as independent contractors and that they were to have complete direction and

control over the operation of the vehicles and assumed full responsibility to the general public for the operation of the vehicles, as well as to the J. Miller Company for the safe transportation and delivery of the goods. Consequently, the J. Miller Company was not a carrier by motor vehicle as to such transportation, and any operating authority based on the performance of such transportation should go to the owner-operators. See Dixie Ohio Exp. Co. Common Carrier Application, 17 M. C. C. 735.

APPENDIX

Names and residences of applicants and operations originally claimed (other than in title case)

No. MC-18235, Earl Bowman, of Alliance, Ohio, over routes in New York, Ohio, Pennsylvania, and West Virginia.

No. MC-19397, William L. Dickson, of Youngstown, Ohio, over routes im New York, Ohio, Pennsylvania, and West Virginia.

No. MC-44885, Ross W. Wallace and Robert H. Wallace, copartners, doing business under the name of Wallace Brothers, of New Bedford, Pa., over routes in New York, Ohio, Pennsylvania, and West Virginia.

No. MC-18491, Jacob G. Hartman, of Portersville, Pa., over routes in New York, Ohio, Pennsylvania, and West Virginia.

No. MC-18556, Luman M. Hunt, of Warren, Ohio, over routes in New York, Ohio, Pennsylvania, and West Virginia.

No. MC-7737, Leon W. Walker, of Akron, Ohio, over routes in Michigan, New York, Ohio, Pennsylvania, and West Virginia.

No. MC-19304, Rudolph Tannert, Jr., of Twinsburg, Ohio, over routes in Michigan, New York, Ohio, Pennsylvania, and West Virginia.

No. MC-19440, H. J. Casebeer, of Cleveland, Ohio, over routes in Michigan, New York, Ohio, Pennsylvania, and West Virginia.

No. MC-44902, Osber Wertenberger, of Alliance, Ohio, over routes in Michigan, New York, Ohio, Pennsylvania, and West Virginia.

No. MC-44908, Harry A. Whittlesey, of Atwater, Ohio, over routes in Michigan, New York, Ohio, Pennsylvania, and West Virginia.

No. MC-44985, George J. Lang, of Cleveland, Ohio, over routes in Michigan, Pennsylvania, Ohio, and West Virginia.

No. MC-18622, Marguerite Osterland, of Warren, Ohio, over routes in Kentucky, Ohio, Pennsylvania, and West Virginia.

No. MC-18205, Albert W. Bauman, Jr., of New Castle, Pa., over routes in Connecticut, Illinois, Indiana, Massachusetts, Michigan, New Jersey, New York, Ohio, Pennsylvania, Rhode Island, and West Virginia.

No. MC-80959, Butler County Transportation Company, Inc., of Zelienople, Pa., over routes in New York, Ohio, Pennsylvania, and West Virginia.

23 M. C. C.

No. MC-101096 (SUB-No. 1)

CONSTRUCTION SERVICE CORPORATION COMMON CARRIER APPLICATION

Submitted April 25, 1940. Decided May 27, 1940

Public convenience and necessity found not to require operation by applicant as a common carrier by motor vehicle, of steel, piling, tile, concrete forms, concrete, pipe, contractors' equipment, tools, rigging, booms, winches, machinery, transformers, electrical equipment, lumber, logs, poles, boilers, and tanks, between points in the Chicago commercial Zone, Chicago Heights, Kankakee, and Peotone, Ill., and South Bend and Hobart, Ind., on the one hand, and points in Indiana, Illinois, Ohio, Michigan, Kentucky, and Iowa, on the other, over irregular routes. Application denied.

Alvin C. Johnson for applicant.

Glenn W. Stephens, Kirkwood Yockey, Henry H. Rogers, B. C. Brile, Jerome D. Fenton, Jack Goodman, Vernon L. Stouffer, Jos. W. Weist, Lee S. Landon, George S. Mullins, Jos. H. Welker, T. J. Minich, and John R. Carroll for protestants.

REPORT OF THE COMMISSION

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

Exceptions were filed by applicant to the order recommended by the examiner.

By application filed December 4, 1939, as amended, Construction Service Corporation, of Gary, Ind., seeks a certificate of public convenience and necessity authorizing operation, in interstate or foreign commerce, as a common carrier by motor vehicle, of steel, piling, tile, concrete forms, concrete, pipe, contractors' equipment, tools, rigging, booms, winches, machinery, transformers, electrical equipment, lumber, logs, poles, boilers, and tanks, between points in the Chicago commercial zone as fixed in Chicago, Ill., Commercial Zone, 1 M. C. C. 673, Chicago Heights, Kankakee, and Peotone, Ill., and South Bend and Hobart, Ind., on the one hand, and points in Indiana, Illinois, and Ohio, points in the Lower Peninsula of Michigan, points in Kentucky north of Owensboro, and points in Iowa east of Mason City, on the other, over irregular routes. Certain rail and motor carriers opposed the application.

Applicant has had considerable experience in the transportation of construction materials and equipment in intrastate commerce. The