No. MC-88654 WATSON ELMO ORNDORFF COMMON CARRIER Decided May 4, 1940 On reconsideration, findings in prior report, 6 M. C. C. 700, modified by substituting Charles Town, W. Va., for Charleston, W. Va., in connection with authority granted applicant to operate as a common carrier by motor vehicle, of specified commodities, between certain points in Maryland, Virginia, and West Virginia. Appearances shown in prior report. REPORT AND ORDER OF THE COMMISSION ON RECONSIDERATION DIVISION 5, COMMISSIONERS LEE, ROGERS, AND ALLDREDGE BY DIVISION 5: In the prior report and order herein, 6 M. C. C. 700, applicant was granted a certificate of public convenience and necessity authorizing him, among other things, to operate as a common carrier by motor vehicle, in interstate or foreign commerce, of scrap iron from Wardensville and points within 15 miles thereof, to Charleston, W. Va., and Winchester, Va., over irregular routes. Applicant desired authority to transport scrap iron from the above-specified origin points to Charles Town, W. Va., and Winchester, and the application so specified those points as destinations for such traffic. Through error, we authorized applicant to serve Charleston instead of Charles Town. The proceeding is hereby reopened on our own motion for the purpose of correcting this error. On reconsideration, we find that the prior report and order should be, and they are hereby, amended and corrected so as to authorize operation by applicant as a common carrier by motor vehicle, in interstate or foreign commerce, of scrap iron, from Wardensville, and points within 15 miles thereof, to Charles Town and Winchester, over irregular routes, in lieu of the authorization in the prior report and order covering this traffic; and it is so ordered. 23 M. C. C. No. MC-8989 (SUB-No. 1)1 HOWARD SOBER, INC., EXTENSION OF OPERATIONS— ALLENTOWN, PA. Submitted September 12, 1938. Decided May 4, 1940 Public convenience and necessity found to require continuance of operation by applicant as a common carrier by motor vehicle, over irregular routes, by drive-away method in initial movements (1) of new motortrucks, chassis, busses, self-propelled fire-fighting apparatus, freight trailers, and freight trailer carts, and of parts thereof, from Allentown, Pa., to points in certain States, and (2) of new motortrucks and parts thereof from Springfield, Ohio, to points in certain States. Issuance of a certificate approved upon compliance by applicant with certain conditions, and applications denied in all other respects. Edward S. Brashears and George D. Sullivan for applicant and certain interveners. George M. Kellogg, Lawrence Ruetz, George F. Burnett, H. F. Hughes, and Leo Girton for interveners. Herbert Baker and Alfred S. Knowlton for protestants. REPORT OF THE COMMISSION DIVISION 5, COMMISSIONERS LEE, ROGERS, AND ALLDREDGE BY DIVISION 5: The two applications here considered were the subject of one recommended order by the examiner. Exceptions were filed by the protestants and applicant replied thereto. By application filed January 17, 1938, Howard Sober, Inc., of Lansing, Mich., seeks a certificate of public convenience and necessity authorizing extension of operations as a common carrier by motor vehicle of automobiles, trucks, bodies, cabs and chassis, new and unfinished, and parts thereof, exclusively by the drive-away method, over irregular routes, from Allentown, Pa., to all points in the United States. By a separate application filed March 24, 1938, it seeks similar authority to extend its operations from Springfield, Ohio, to all points in Maine, New Hampshire, Vermont, Massachusetts, Connecticut, Rhode Island, New Jersey, Ohio, Kentucky, and Wisconsin, operating through, but not serving points in Pennsylvania, New 1 This report also embraces No. MC-8989 (Sub-No. 2), Howard Sober, Inc., Extension of Operations-Springfield, Ohio. York, West Virginia, Maryland, Indiana, and Illinois. The two applications differ only in their respective origins and territories to be served. The Kenosha Auto Transport Corporation, Fugate & Girton Driveaway Co., Inc., Auto Transportation, Geo. F. Burnett Co., Inc., and International Harvester Company intervened to protect their interests as they might appear. Rail carriers operating in the territory opposed the application, but introduced no evidence. Subsequent to the hearing, F. W. Myers, doing business as F. W. Myers Driveaway System, of Springfield, Ohio, was permitted to intervene and become a party in No. MC-8989 (Sub-No. 2). Howard Sober has been engaged in the business of transporting automobiles since 1916. He is president and principal stockholder of applicant, which was organized on December 24, 1931, as a Michigan corporation. By our order of September 29, 1938, applicant has been granted a certificate of public convenience and necessity under the "grandfather" clause of section 206 (a) of the act as a common carrier by motor vehicle, by truck-away and drive-away methods, of new automobiles, new trucks, new tractors, new chassis, and new bodies, restricted to initial movements, from specified places of manufacture and assembly to points and places in various States. For convenience and clarity, the subject matter under these two applications will be referred to herein as the Allentown and Springfield operations, respectively. Service at the former consists wholly of transportation, by drive-away method, of motor vehicles made at that point by the Mack Manufacturing Corporation. The evidence indicates that such operations from Allentown commenced on June 6, 1935, and have been continuous since. Operations from Springfield consist of the transportation, also by drive-away method, of motor vehicles manufactured there by the International Harvester Company. This service has been conducted since October 1, 1935. The act provides that operations begun after June 1, 1935, and before October 15, 1935, may lawfully be continued until otherwise ordered by us, provided an application therefor was filed within 120 days from the effective date of section 206 (a) of the act. Applicant contends that its operations for which authority is sought herein were covered by its "grandfather" application, which was seasonably filed. Its president testified that prior to June 1, 1935, "we delivered automobiles out of all automobile factories, practically all automobile factories, in the past 20 years." Applicant points out that, after the "grandfather" application was filed, there developed a distinction between types of movement by automobile transporters, namely, those which are "initial movements" from a place of manufacture or assembly, and those which are "secondary or subsequent movements". Applicant considered that its "grandfather" application was broad enough to include the movements herein considered and therefore entered into the arrangements at Allentown and Springfield. At the hearing, however, applicant submitted evidence to establish public convenience and necessity. No specific proof was offered respecting destination points served prior to October 15, 1935; and the mere statement that it started operations at Allentown on June 6, 1935, is not sufficient to prove that it had instituted operations from there to points in any or all of the States. Applicant was also of the belief that transportation of new motor vehicles by drive-away method was not subject to regulation under the act. Such transportation in interstate or foreign commerce for compensation was held by us to be subject to the act, in D. L. Wartena, Inc., Common Carrier Application, 4 M. C. C. 619. Applicant has conducted and now conducts a large, profitable common-carrier business in the transportation of new motor vehicles. It has approximately 500 employees. The record establishes applicant's fitness, willingness, and ability properly to conduct the considered operations. The Mack Manufacturing Corporation is the only manufacturer of motor vehicles in Allentown, Pa. It makes motortrucks, motortruck chassis, self-propelled fire-fighting apparatus, busses, freight trailers, and freight trailer carts, but no passenger automobiles. In 1937, 76 percent of its products were delivered by highway, and for the first 4 months of 1938 this rose to 85 percent. The traffic manager of this shipper testified that there are no other motor carriers within his knowledge having authority to transport new motor vehicles by highway from Allentown. This shipper does, however, use, in addition to applicant, rail service and its own drivers. It has found highway delivery of its vehicles more advantageous and economical than rail delivery in that it is more prompt and flexible; it furnishes personal conduct of vehicles; it permits the delivery of vehicles driven under sealed governors, so that on arrival they are ready for work instead of requiring a breaking-in period; it avoids the delay, trouble, and expense of loading and unloading; and it is direct, as compared with the longer hauls by other methods. From October 1, 1936, to May 1, 1938, applicant transported a total of 2,518 Mack vehicles from Allentown for delivery into 29 States and the District of Columbia, as shown in detail in the appendix attached hereto. Deliveries are made to the Mack Company branches and also to the actual customers of the branches. The These types of movement are more exactly defined in admistrative ruling 75, issued by the Bureau of Motor Carriers on July 15, 1938. shipper may be the factory, distributor, dealer, or customer. The party who actually pays the tariff rate similarly varies. The Mack Company tries to discourage delivery of trucks at the factory direct to a purchaser to drive away, having found that a responsible carrier is far more trustworthy to effect delivery of the vehicle at ultimate destination in good mechanical condition. Its witness stated that if they cannot obtain a responsible carrier, such as applicant, the company will be forced to make this type of delivery by its factory employees. The International Harvester Company manufactures motortrucks at its Springfield, Ohio, plant, which are delivered by applicant to branch houses, distributors, and dealers. The company has not found rail service satisfactory and at the present time makes few shipments by rail except when destined to a port for export. It also considers that transportation of new motor vehicles by highway has advantages over rail transportation for reasons very similar to those already set forth under the discussion of the Allentown operations. The majority of shipments are less than 48 hours en route from factory to destination. Prior to engaging applicant's service at Springfield on October 1, 1935, the International Harvester Company had been using approximately 15 motor carriers for the movement of its new trucks. It did not find the services of all such carriers satisfactory for various reasons and, therefore, at that time restricted its shipments to a few carriers of recognized experience and standing, giving to applicant shipments to certain States in the northeastern section of the country, as specifically set forth in the application. Certain other States not so named, but nevertheless in this general territory, are included within authority granted under applicant's "grandfather" application. From October 1, 1935, to May 1, 1938, applicant has transported for this company a total of 49,129 units to States east of the Mississippi River and mostly north of the Ohio River. Of such shipments, those which moved to the territory sought are shown in the appendix attached to this report. The assistant traffic manager for the International Harvester Company testified that applicant's services were entirely satisfactory, prompt, and coordinated, with little or no friction, and that on the basis of 3 years' experience, the company finds the service a very dependable one and necessary in the efficient distribution of its products to its branches, stores, and dealers. The fact of long-continued, successful operation raises a strong presumption that its continuation is required by public convenience and necessity. It does not follow, however, that public convenience |