DENCO BUS LINES, INC., COMMON CARRIER Decided June 13, 1940 On reconsideration, findings in prior report, 8 M. C. C. 188, modified to give effect to certain substitutions by authorizing service by Denco Bus Lines, Inc., over routes 1 to 6, inclusive, and by L. A. Nance, R. A. Nance, R. C. Nance, and Mrs. Lillie M. Newman, copartners, over routes 7, 8, and 9. Appearances as shown in prior report. REPORT AND ORDER OF THE COMMISSION ON RECONSIDERATION DIVISION 5, COMMISSIONERS EASTMAN, LEE, AND ROGERS BY DIVISION 5: In the prior report and order herein, 8 M. C. C. 188, we authorized the issuance to Denco Bus Lines, Inc., of a certificate of public convenience and necessity as a common carrier by motor vehicle, in interstate or foreign commerce, of passengers and their baggage and of mail in the same vehicle with passengers, between Ada, Okla., on the one hand, and Chickasha, Atoka, Seminole, Sulphur, Okemah, and Holdenville, Okla., on the other, between Paris, Tex., and Hugo, Okla., and between Idabel, Okla., on the one hand, and Nashville, Ark., and Texarkana, Ark.-Tex., on the other, over routes 1 to 9 as described therein. A further examination of the record shows that the application in No. MC-9873 was originally filed by L. A. Nance Bus Lines, Inc., and that the corporate name was changed to Nance Bus Lines, Inc., on September 18, 1936, and to Denco Bus Lines, Inc., on August 13, 1937. On April 20, 1937, the substitution of L. A. Nance, in lieu of Nance Bus Lines, Inc., as to routes 7, 8, and 9, was approved. On July 31, 1937, the substitution was approved of L. A. Nance, R. A. Nance, R. C. Nance, and Mrs. Lillie M. Newman, copartners, doing business as Nance Bus Lines, in lieu of L. A. Nance. This proceeding is hereby reopened on our own motion for the purpose of correcting the prior findings in line with these substitutions. 1 This report also embraces No. MC-84685, L. A. Nance, R. A. Nance, R. C. Nance, and Mrs. Lillie M. Newman Common Carrier Application. Upon reconsideration, we find that the prior report and order should be, and they are hereby, amended so as to authorize service contemplated by the prior report, over routes 1 to 6, inclusive, as described in such report, by Denco Bus Lines, Inc., and over routes 7, 8, and 9, as described in such report, by L. A. Nance, R. A. Nance, R. C. Nance, and Mrs. Lillie M. Newman, copartners, doing business as Nance Bus Lines; and it is so ordered. 23 M. C. C. No. MC-21615' W. CURTIS DAY BROKER APPLICATION Submitted September 24, 1938. Decided June 13, 1940 Described operation by applicant found not those of a motor carrier or of a broker of transportation by motor vehicle. Applications denied. George O. Cowan for applicant. Oscar Lindstrand, J. G. Kerr, and Harry J. Harman for protes tants. REPORT OF THE COMMISSION DIVISION 5, COMMISSIONERS LEE, ROGERS, AND ALLDREDGE BY DIVISION 5: The order recommended by the examiner, to which no exceptions were filed, was stayed by us. By an application in No. MC-21614, filed February 12, 1936, under the "grandfather" clauses of the Motor Carrier Act, 1935, W. Curtis Day, of Indianapolis, Ind., doing business as Day's Reliable Travel Service Agency, seeks a certificate of public convenience and necessity, or a permit, authorizing continuance of operation, in interstate or foreign commerce, as a common or a contract carrier by motor vehicle of passengers between all points within the United States. By another application, in No. MC-21615, filed at the same time, applicant also seeks a license authorizing operation as a broker of transportation of passengers by motor vehicle. The two applications involved the same operation and were filed to secure such authority, if any, as may be required for the continuance of the operations presently to be described. They were heard on a single record. Indiana Bus Operators Association, Inc., and Central Passenger Association and Southern Freight Association rail carriers opposed the applications. Since June 1, 1930, applicant has operated a travel bureau at Indianapolis, dealing principally with the transportation of passengers by private automobiles. The business, which is conducted at a desk in a hotel lobby, is year-round in character, but is most profitable during the months of June to September, inclusive. It requires applicant's full time and is his sole source of livelihood, but only occasionally is it necessary for him to employ assistants. He 1 This report also embraces No. MC-21614, W. Curtis Day Contract Carrier Application.. advertises regularly in Indianapolis newspapers and in the city classified directory, and has an excellent reputation among those whom he has served. His operations involve the selling of transportation for passenger motor common carriers, the arranging of transportation by private passenger automobiles, the selling or arranging of transportation by so-called chartered sedan passenger automobiles, and the arranging of transportation of groups by chartered busses. The selling of tickets for passenger motor common carriers is an insignificant part of the business. At no time has applicant represented more than one line, and at the time of the hearing he had a contractual arrangement with but one company, whereby he sold only a form of transportation order. For this service he collects a commission of 10 percent, and the balance is paid at one of the two depots maintained by the carrier in Indianapolis. In this undertaking applicant appears to be acting as agent of the carrier in question and therefore does not qualify as a broker within the meaning of the act. Compare Wylie Broker Application, 2 M. C. C. 677. On only three occasions prior to the hearing had applicant arranged for the transportation of groups in busses chartered from two passenger motor common carriers. In each case the transportation was intrastate in character. One of the carriers was last used during July or August, and the other about October, 1935. Under the act a broker's license is required only when the transportation to be arranged is itself subject to the act. No probable interstate business of this character is shown. An important part of applicant's business is arranging the transportation of passengers by ordinary private passenger automobile. In these transactions the car owners or drivers register their cars with applicant, who undertakes to find passengers traveling in their direction. He usually takes part in the negotiations between the parties, and when the sum to be paid by the passenger is determined, he collects from the passenger an amount equal to 20 percent thereof. He personally knows some of his patrons and always investigates credentials of the car owners, and to some extent those of prospective passengers. He has no control, however, over the driver, car, or passenger after the trip is begun. Several witnesses testified that the service was a satisfactory and convenient one for their particular needs. Distinguished in some respects from the service just discussed is applicant's chartered-sedan service, which since its inception has been conducted without substantial change or material interruption. In this service applicant offers, to the public, transportation in passenger automobiles between Indianapolis and other points throughout the United States. Although the service is available to individu als, it has been rendered mostly to groups or parties traveling as a unit. Applicant offers no regular schedule, operates no regular routes, and maintains no terminal facilities other than the described hotel space. The trips depend upon the business attracted, and the destinations and routes upon the desires of the travelers. The actual transportation is performed not by applicant, who has no equipment other than his own private automobile, but by ownerdrivers of passenger automobiles procured for particular trips or for periods of time. On occasions he has used his own car, but that is not a customary practice and is done only rarely and in emergencies. The last such occasion was in July 1937. Applicant advertises that he has available reliable transportation in private sedans to all points; that he has automobiles, with drivers, to rent; that he specializes in chartered trips and tours; and that he is operating as a travel service. He does not own the automobiles or supply the drivers; and the destination, route, and schedule are all matters agreed upon between the driver and the passenger, with his assistance. He has neither control nor supervision over the driver after the trip is begun. In an honest attempt to maintain the carrier status which he conceived to be his, applicant in 1936 made certain changes in his methods of dealing with the passengers and carriers. Instead of leaving the fare entirely a subject of negotiation between them, he now follows a tariff on file with us, which provides car-mile rates, alternative hourly rates graded according to seating capacity, and passengermile rates, although he continues to collect his customary 20-percent commission. A technical change has also been made in his relationship with the owner-drivers whom he procures. Instead of procuring such drivers orally, as he formerly did, he new enters into a written agreement whereby the owner leases his automobile to applicant for an agreed number of days, and applicant in turn engages the owner to drive the particular automobile on unspecified trips. Applicant performs all the brokerage services at his own expense, and the owner-driver defrays all operating expense. Of the total compensation received from the passenger, applicant receives 20 percent and the lessor-owner-driver the remainder. Under these so-called leases there is no intention that applicant shall have possession, or the right to possession, of the equipment. Applicant is not obliged to furnish any particular trips, or any trips at all. The car remains in the possession of the owner and is used in the transportation of passengers procured by applicant only when a trip acceptable to the owner is arranged. The owner is not bound to make any particular trip, and does so only when he desires. He is in no sense applicant's employee. It is clear that applicant in these operations is not a car |