ceeding then scheduled to be handled without an oral hearing. At time intervention was authorized record was closed, except for cross-examination of applicant's witnesses. Further hearing is not justified. MC-F-6452, Maislin Bros. Transport, Ltd.-Control-Maislin Transport, Inc., M. C. C. 6-20-58, Div. 4. 16.05 Presumptions 16. Proof 16.0 Generally .... 16.05 Rate to an intermediate point which is higher than rate on same commodity to more distant point over same route is presumptively unreasonable. Conversely, rate to an intermediate point which is no higher than corresponding rate through that point to more distant point may be presumed to be just and reasonable. There is no evidence to rebut presumption. I & S M-10710, Feed-Kansas City, Mo. to Indianapolis, Ind., I. C. C. 7-9-58, Div. 3. 16.10 Generally .... 16.10 Nature of this proceeding requires that Commission consider whether proposed schedules would be in all respects lawful under Act. I & S 6545, Stoves & Related Articles-South to North, .... I. C. C. 6-18-58, Div. 2. ..... 16.10 Practices of Carriers Affecting Operating Revenues or Expenses -Part II, Terminal Services: Publication of reasonable switching charge for terminal movements of inbound or outbound loaded cars in excess of practices approved in 294 I. C. C. 159 and two other specified movements, when such additional movements shall be performed by carriers at specific request of industry, presents an issue beyond scope of an Ex Parte No. 104 proceeding, and will not be further considered. Ex Parte No. 104, U. S. Smelting, Refining & Mining Co., ... I. C. C. ...., 6-4-58, Commission. 16.13 Stipulations 16.13 Applicants cannot, by private agreements or understandings with their actual or potential competitors, relieve themselves of burden of establishing that there is public need for their proposed service. MC-113475, Sub 5, G. C. Rawlings Ext.-Emporia (Va.), 5-29-58, Div. 1. 16.21 Complaints 16.2 Burden of Proof 16.21 Burden of proof is placed upon complainant. No. 32082, Dinion Coil Co. v. International Fwdg. Co., .... I. C. C. ..., 5-23-58, Div. 3. 16.22 Applications 16.22 In proceedings of this nature it is incumbent upon applicant affirmatively to sustain its burden of proof. MC-29886, Sub 105, Dallas & Mavis Fwdg. Co., Inc. Ext.-Lumber, ... . M. C. C. 5-28-58, Div. 1. 16.22 It is fundamental principle that burden rests upon applicants to show through competent evidence that there is or will be definite need for proposed service by members of shipping or receiving public. MC-105045, Sub 3, R. L. Jeffries Trucking Co. Ext.-14 States, 6-27-58, Div. 1. 16.22 Burden of proof in respect to establishing need for proposed service is upon applicant, and lack of authority by opposing carrier to perform considered service does not alter this burden. MC-101075, Sub 45, Transport, Inc. Ext.-Dry Fertilizer in Bulk, M. C. C. Div. 1. .... 5-28-58, 16.23 I & S Proceedings 16.23 Proposed rates are initial rates. This being so, burden of proof here rests upon protestants. Sec. 216 (g) of Act places burden of proving "changed" rates lawful on respondent. I & S M-10734, Machinery-From Salt Lake City-International Transport, Inc. I. C. C. Div. 2. .... 7-1-58, To same Effect: I & S M-10500, Milk from Iola, Kan. to Kansas City, Mo., 16.23 Proposed rates on returned containers are new; and burden of proof that they are unlawful rests with protestant. I & S M-10601, Returned Containers-Joliet, Ill. & Wayne County, Mich., I. C. C. 5-29-58, Div. 3. .... .... 16.23 Respondents have burden of establishing that rates here proposed are reasonable and otherwise lawful. I & S 6545, Stoves & Related Articles-South to North, I. C. C. 6-18-58, Div. 2. 16.24 General Investigations 16.24 In proceeding of this nature, those opposing existing rates, rules, or practices have burden of proving their unlawfulness. MC-C-1970, Assembling Rates St. Louis-Nashville Freight Lines, Inc., I. C. C. 5-19-58, Div. 3. 16.3 Official Notice 16.33 Public Records 16.33 Commission may take official notice of fact that protestants effected decreases in their rates. I & S M-8380, Class Rates & Ratings Malone Freight Lines, Inc., I. C. C. ...., 6-25-58, Commission. Witnesses 16.46 Cross-examination 16.4 16.46 Although documents contain allegations relevant to certain of issues in this case and were properly received in evidence by examiner, they are, under circumstances described, entitled to no weight in determination of this proceeding, as no opportunity for cross-examination as to facts alleged therein has been afforded. MC-F-6544, Pittston Co.-ControlBrink's Inc., ... M. C. C. ... ., 7-11-58, Div. 4. 16.52 While form of affidavit does not meet strictly standards of General Practice Rule 1.50, assailed statement of facts mainly consists of rate evidence and description of considered articles, or matters normally within cognizance of a person who has served as a transportation advisor for a number of years, as a witness since 1941. Motion to strike is overruled. I & S M-10628, Automobile Parts-Lansing, Mich. to Cincinnati, Ohio, I. C. C. 6-3-58, Div. 2. 16.6 16.61 Commission's Files Documents 16.61 No details of method of computation used by affiant, or underlying data, were made available, and applicant had no opportunity to crossexamine affiant concerning figures stated. Such evidence is of no value. MC-F-6544, Pittston Co.-Control-Brink's Inc., . . M. C. C. . ..., 7-11-58, Div. 4. .... 16.62 Public Records 16.62 Exhibit of out-of-pocket costs taken from Commission's cost finding section's Statement 1-56, which reflects level of costs of 16 of 31 class I motor carriers with revenues of $500,000 or more in Rocky Mt. Region but does not cover respondent, was objected to on grounds of hearsay, incompetence and denial of cross-examination of compiler of underlying study. Documents were tendered not as evidence of respondent's cost, but as indicative of what protestants regard as a compensatory level of motorcarrier rates in territory. Objection is overruled. I& S M-10318, Petroleum Products-Wright Motor Lines, Inc., I. C. C. 6-27-58, Div. 2. 16.69 Exhibits .... ..... 16.69 Examination of record discloses that exhibit 16 was taken directly from shipper's claim register, which is a business record. However, claim register itself was not made available at hearing and witness had other documents covering only two of the claims listed. Under the circumstances, objection to this exhibit is well taken and information contained therein will not be considered. MC-115491, Sub 6, Commercial Carrier Corp. Ext.-Ill. Points, .... M. C. C. . ..., 6-27-58, Div. 1. 16.75 Hearsay 16.7 Admissibility 16.75 Respondent's statement concerns information revealed in conference between officials of shipper and respondent, and is sworn to by respondent's traffic manager and secretary. Motion to strike is overruled. I & S M-10504, Aluminum Chloride-Nitro, W. Va. to Penna., 6-9-58, Div. 2. .... I. C. C. 16.75 Information appears to have been obtained by witness in line of his official duty from personal contact with receiver. Motion to strike is overruled. I & S M-10829, Rubber Scrap-Texas to Memphis, Tenn., I. C. C. ...., 7-3-58, Div. 3. 16.75 Witness' knowledge was acquired in ordinary course of his business; and it was his business to receive such information, inasmuch as he represents applicant directly in its dealings with interline carrier at Buffalo. Accordingly, such evidence is proper. MC-100463, Sub 17, Smith Transport Ltd. Ext.-Newsprint, 5-15-58, Div. 1. 16.80 Generally 16.8 Degree or Weight of Proof 16.80 Little weight can be accorded testimony of sales representative who sells lumber for other shippers and admittedly has no voice in supporting shipper's transportation policy, nor authority to route shipments. MC117015, J. F. Costa Com. Car. App., 6-25-58, Div. 1. 16.80 No underlying data in support of cost figures were submitted, and for that reason cost evidence can be accorded little weight. I & S M10500, Milk From Iola, Kan. to Kansas City, Mo., . . . . I. C. C. . . .., 5-23-58, Div. 2. .... 17.0 17. Hearing 17.00 Modified Procedure 17.00 No timely request was made by protestants for oral hearing, their first request being made part of their motion to strike, filed after applicant's first rebuttal statement was submitted, and their second request being part of their exceptions, after additional evidence was submitted by both sides. Protestants had ample opportunity at proper time to request oral hearing for purpose of cross-examination of applicant's witnesses, and for production of documents. General Practice Rule 1.53. MC-F-6500, Philander Cooke-Control-Hercules Trucking Co., Inc., 6-20-58, Div. 4. 17.00 Procedure followed here was as prescribed by Commission's Rules of Practice governing handling of applications through use of verified statements which embody fundamental requisites of full hearing as defined in Administrative Procedure Act. 227 U. S. 88, 92; and 304 U. S. 1. Request for full oral hearing at this time is not justified. MC-F-6452, Maislin Bros. Transport, Ltd.-Control-Maislin Transport Inc., M. C. C. 6-20-58, Div. 4. 17.30 Generally 17.3 Conduct of Hearing .... 17.30 Proceeding conducted under orderly rules of procedure must necessarily be interrupted when questions as to admissibility of evidence arise. This is a normal incident in any hearing. MC-228, Sub 22, Hudson Transit Lines, Inc. Ext.-Wyckoff, N. J., 6-12-58, Div. 1. 17.42 Objection 17.4 Reception of Evidence 17.42 Since enclosure and letter submitted by protestant were in explanation of his position in proceeding and of his alleged need for line, letter and enclosure will be given such consideration as they may warrant. Objection was on ground of noncompliance with General Practice Rule 1.50. F. D. 19917, Los Angeles & Salt Lake R. Co.-Abandonment-Mammoth Branch, 5-21-58, Div. 4. 17.42 Both Shortway and Salt Lake-Kanab were not permitted to become parties; are not now in the proceeding. However, fact that each is operating and considers itself able to fulfill transportation needs of supporting shipper is relevant to proceeding, as here, when properly put in evidence by sworn testimony of knowledgeable witnesses called by a protestant in rebuttal of the evidence which applicant introduced in attempting to prove that public convenience and necessity requires the service which it proposes to perform. See 73 M. C. C. 129. MC-114364, Sub 27, Wright Motor Lines, Inc. Ext.-Glen Canyon Dam, (Ariz.), 6-26-58, Div. 1. 17.43 Rulings 17.43 Several motor carriers parties to proceeding presented evidence showing that they had interline arrangements with a carrier which had been denied right to intervene. Latter carrier was called as a witness by protestants to show its operations and availability of service. However, this gave that carrier no standing as a protestant or opposing intervener and was proper under General Practice Rule 1.241 (c). 73 M. C. C. 129, 131-2. Examiner's ruling approved. MC-25798, Sub 15, Clay Hyder Trucking Lines, Inc. Ext.-Various Commodities, 7-3-58, Div. 1. 17.43 In support of his objection that accounting exhibits should not be received in evidence because of their alleged unreliability, counsel read into record a copy of a letter from a former Chairman of Commission to a member of Congress in reply to inquiry regarding an investigation of alleged irregularities in accounting practices of applicant. Contents of letter are insufficient to support objection. Letter contains only general criticisms of applicant's accounting methods, is without evidentiary value in this proceeding, and is insufficient to prove that applicant's accounting exhibits submitted in this case are untrustworthy. Examiner's ruling to receive exhibits in evidence is sustained. F. D. 19844, Missouri-K. T. R. Co. Abandonment -Bryson-Paola Line, 5-14-58, Div. 4. 17.45 Exceptions to Ruling 17.45 Sec. 1.241(c) establishes conditions which must be met before a person may become a party to certain types of proceedings before Commission. Once a person complies with conditions of that section and becomes party to proceeding, testimony that may be presented is limited only by usual rules of evidence. Although Bolus is not a party to proceeding and has no standing to oppose application, service performed by him for GE is relevant to issues involved and evidence in respect of such service was properly offered and received on behalf of qualified protestants. Evidence of this character given under circumstances here related need not be limited to service or operations of a qualified protestant. Motion to strike overruled. See 73 M. C. C. 129. MC-117019, E. J. Kane Cont. Car. App., . . . . M. C. C. 6-13-58, Div. 1. 17.56 Broadening Issues 17.5 Argumentation 17.56 Consideration and findings will be based solely on allegations in complaint and evidence presented at hearing. Thus no need appears for discussing merits of motion to strike certain portions of one brief claimed to be without support in record and of another brief because it is said to broaden issues and to be based on matters not of record. Motion is overruled. MC-C-2022, Atchison Chamber of Commerce v. A & B Transfer, Inc., M. C. C. 5-22-58, Div. 2. ..... 17.56 Examination of brief indicates that interveners propose to broaden unduly scope of proceeding by suggesting institution of investigation into rates on these commodities throughout territory east of Mississippi River, and reference is made to matters not of record. Brief will not be further considered. I & S 6545, Stoves & Related Articles-South to North, I. C. C. .., 6-18-58, Div. 2. 18.04 Scope of Order in I & S Proceeding 18.04 Concerning rate to Omaha carried forward without change, although indicated to effect reduction, orders of suspension and investigation placed in issue all rates embraced in schedules specified in orders including rate to Omaha. See 335 U. S. 573. I & S M-9970, Alcoholic Liquors, Paper Bags-From & to Southwest, M. C. C. 6-23-58, Div. 2. 18.32 Form & Content .... 18.3 Exceptions 18.32 Pamphlet entitled "Utilized Package Lumber Loading" submitted with exceptions violates General Practice Rule 1.86, since it was not introduced as evidence in hearing and is not part of record. No weight will be given to pamphlet in reaching decision. MC-60508, Sub 8, C. H. Sizemore Ext.-Lumber, 6-30-58, Div. 1. 18.33 Replies 18.33 New matter raised in reply to exceptions is not normally considered, but where, as here, error in record was obviously inadvertent, record shall be considered as if "angles" were included in commodities sought. MC-116770, Active Cartage Ltd. Com. Car. App., 6-30-58, Div. 1. 18.33 Inclusion of exceptions in reply is contrary to General Practice Rules. Accordingly, such extraneous matters have been disregarded in reaching a decision. MC-116687, Goton Enterprises, Inc., Cont. Car. App., 5-26-58, Div. 1. 18.35 Defective 18.35 Motion to strike certain statements made in exceptions, pertaining to background of boat-building industry on grounds that they relate to matters outside record and are not supported by references to transcript as required by rule 1.96 of General Rules of Practice, is well taken and is granted. MC-108169, Sub 17, K & W Boat Transport, Inc. Ext.—Lancaster, Penna., M. C. C. 5-27-58, Div. 1. .... |