tors. The only employees of this concern are Lipsman, Northam, and a part-time bookkeeper.

Country Wide utilized numerous carriers, usually small itinerant truckers, in handling the involved traffic. In most cases it did not use a carrier more than once. Immediately under Country Wide's name on all "freight bills" or invoices issued by Country Wide in connection with shipments transported in the equipment of these carriers appears the notation "Exempt Transportation Brokers only." For almost all shipments of the considered commodities, Country Wide also required the truck operator to sign a document entitled "Truck Loading Agreement & Instructions." The document contained what is termed an "acknowledgement," directly above the operator's signature, which reads as follows:

The undersigned HAULER hereby acknowledges that Country Wide Truck Service, Inc., has acted strictly as truck brokers in procuring this hauling contract and that they are not the owners, shippers, buyers, or carriers of same. And, in consideration of receiving this hauling contract, hereby agrees to pay a commission of 10% plus any insurance or other charges, and warrants that Hauler will save Country Wide Truck Service, Inc. free and harmless from any and all claims of every kind and nature that may arise from said hauling. Further, that any advances received from Country Wide Truck Service, Inc. pursuant to hauling is strictly a loan for business purposes which is payable upon demand, and is not to be construed as part of the freight charges for hauling. Hauler also agrees to indemnify the Country Wide Truck Service, Inc., for any deductible clause applicable in the event of cargo loss while insured by said Country Wide Truck Service, Inc. cargo policy.

Hauler acknowledges that he has no right to use the name of Country Wide Truck Service, Inc. in any other manner than as the broker of this load, and any further use thereof is without permission of said Country Wide Truck Service, Inc.

Country Wide claims these forms were provided by a printer; and that since it had no legal advice regarding them, it did not realize the import of this language.

Generally, at the agreement's signing, Country Wide advanced the trucker a large percentage of the involved transportation costs, and, upon the shipper's later remittance of the freight charges, Country Wide paid the carrier an additional sum for a total of about 90 percent of such charges. During 1956, 1957, and 1958 Country Wide carried insurance covering workmen's compensation, cargo damage, and comprehensive general liability. It admits that most of the carriers it utilized had some insurance coverage and that its insurance was intended to provide coverage supplemental to the amount carried by the vehicle owner, or in lieu thereof if the owners carried no insurance. In cases where the carrier had no insurance, Country Wide sometimes deducted an amount to cover the value of the insurance protection afforded under its own policy. Small claims were

deducted from the amounts paid the uninsured carrier, but damages of $200 or more customarily were covered by Country Wide's insurance. The owner-operators were responsible for maintaining their equipment and paying operating expenses. They were required to call in when the shipping timetable was upset by delays or vehicular breakdowns. No income taxes were withheld by Country Wide from remunerations due the drivers, but it did deduct a California highway use tax from the amounts paid the truckers.

Applicant's shipping evidence reflects no traffic movements of the involved commodities in 1958 under its own name prior to May 1. Applicant attributes this dearth of traffic to competitive difficulties adversely affecting its westbound transportation of meats, and causing a decrease in the amount of equipment available on the west coast for loading return movements of the considered commodities. This loss of traffic volume reduced its westbound equipment from the normal 25 units a week to 10 units weekly. During this same period of time it continued to meet the shipping needs of its regular customers as to fresh fruits and vegetables. It appears that applicant took what measures it could to remedy this unfavorable situation, and that by the middle of 1958 it had succeeded in recovering part of its lost traffic.

Applicant adduced evidence that it handled 188 shipments in 1956 and in 1957, and 258 shipments after the "grandfather" date in 1958 and in 1959 and 1960. These shipments consisted of frozen fruits, berries and vegetables, assorted citrus and vegetable juices, and frozen french-fried potatoes. Its evidence of Country Wide's traffic reflects 85 shipments of the above commodities handled prior to the statutory date and 21 shipments subsequent thereto. Additionally, 105 shipments of these same commodities, transported by Northam in 1955 and 1956, are relied upon to sustain applicant's request for "grandfather" rights.

Our initial inquiry is to determine which of the shipments adduced in evidence may properly be considered in deciding whether or not a grant of authority is warranted. It is well settled that commodities which were nonexempt prior to enactment of the Transportation Act of 1958 may not be the basis for the filing of a "grandfather" application because such commodities were not "made subject" to economic regulation by section 7(a). The "grandfather" rights obtainable under section 7 (c) do not extend to all commodities described as nonexempt in Administrative Ruling 107, but only to those commodities made nonexempt by the second proviso to section 203 (b) (6), and to those exempt commodities transported in the same vehicle with commodities made nonexempt by that proviso. Compare Various Commodities between Points and Places in U.S., 309 I.C.C. 573, and Lewis

Common Carrier Application, 82 M.C.C. 755. Citrus and fruit juices were held to be nonexempt manufactured agricultural commodities long prior to the 1958 amendment in Watkins Motor Lines, Inc., Interpretation of Certificate, 64 M.C.C. 455. A similar finding was made with respect to the nonexempt status of vegetable juices, frozen or canned, in Cooked Vegetables and Juices between Points in U.S., 309 I.C.C. 46, and with respect to cooked vegetables in Frozen Cooked Vegetables-Status, 81 M.C.C. 649. See also Milk Transport Inc., Extension-Bulk Commodities, 78 M.C.C. 335, affirmed by the United States District Court for the District of Minnesota in Milk Transport, Inc., v. Interstate Commerce Commission, 190 F. Supp. 350. It is manifest, therefore, that applicant's past transportation of citrus, fruit and vegetable juices and of cooked vegetables may not be made the basis for an authorization under the "grandfather" provisions of section 7(c). In the circumstances applicant cannot claim to be prejudiced because the authority sought to transport these commodities was not published in the Federal Register.

Additionally, we are of the opinion that shipments handled by Northam and Country Wide should not be considered in support of applicant's claim to "grandfather" rights. The shipments covered by the Northam freight bills were transported in 1955 and 1956 and are clearly too remote in time to have probative value. Compare Refrigerated Dispatch Common Carrier Application, 83 M.C.C. 411. Additionally, the evidence clearly establishes that Country Wide was operating as a broker of transportation and not as a for-hire motor carrier engaged in bona fide operations. The truck loading agreement which it required the owner-operators to sign clearly characterizes Country Wide as a broker arranging the transportation of property for a fixed percentage. Applicant should not be allowed to derogate from the plain import of the language contained in this instrument. The contention that it did not understand the legal implications of the plain terms used therein is patently without merit. Moreover, the evidence fails to establish that Country Wide was operating as anything other than what it described itself as being in the truck loading agreement: namely, a broker of transportation. The record reveals that the owner-operators usually received 90 percent of the freight charges, carried their own cargo insurance in most instances, and maintained their equipment at their own expense. California highway use taxes were paid out of their shares, and Country Wide did not withhold income taxes from the amounts due them. A measure of very loose control purportedly was exercised by Country Wide over the considered transportation. In practice this amounted to telling the truck operator where to pick up the shipment and where to deliver

it, and instructing him to call Country Wide in case of serious delay or vehicular breakdown. The actual motor carriage was performed by the owner-operators with little or no real supervision by Country Wide. On balance, we consider that Country Wide was handling the involved shipments as a broker, and not as a for-hire motor carrier.

An analysis of material shipments of frozen fruits, berries, and vegetables contained in the appendix hereto reflects the following movements both before and after May 1, 1958. Applicant provided service from San Jose, Calif., to Omaha, Nebr.; from Watsonville, Calif., to Minneapolis, Minn., and Detroit, Mich.; from Modesto, Calif., to Minneapolis; and from Sanger, Calif., to Milwaukee, Wis., and Chicago, Ill. The above shipments occurred either in 1957 or in 1959 or later. Applicant also transported shipments from San Jose to Des Moines, Iowa, in 1957 and on November 21, 1958; from Modesto to Omaha in 1957 and on October 31 and December 21, 1958; from Atascadero, Calif., to Marshall, Minn., on August 24, 1957, and June 9, 1958; and from Arlington, Wash., to Milwaukee, Wis., on February 2, 1957, and September 26, 1958. From the foregoing we conclude that continuity of applicent's service from and to the above-mentioned points was broken in all instances by extended interruptions, and does not present any discernible pattern which would show bona fide and continuous operations as distinguished from sporadic, infrequent, and incidental movements.

Our final inquiry, therefore, is whether or not such interruptions are attributable to circumstances beyond applicant's control.

In our opinion the curtailment of applicant's movements of meat shipments from the Midwest to the west coast owing to competitive difficulties in late 1957 and early 1958, and the resultant lack of equipment for handling return movements of the involved commodities, do not constitute circumstances beyond its control. Clearly, the slackening of applicant's westbound operations does not provide a valid excuse for its failure to engage in substantial eastbound service in movements of the involved commodities, particularly when, as here, it admittedly was continuing to serve shippers of exempt fresh produce during this period. We conclude that applicant has failed to sustain its burden of proving the required bona fide operations between the points sought, and that the application should be denied in its entirety. In view of our findings herein, it is unnecessary to discuss other matters raised on exceptions.

We find that applicant has failed to establish the right to a certificate under the "grandfather" provision of section 7(c) of the Transportation Act of 1958; and that the application should be denied. An order will be entered denying the application.

COMMISSIONER WEBB, dissenting:

I would grant the application to the extent recommended by the examiner.

APPENDIX

Summary of pertinent shipments transported by applicant before and after the "grandfather" date

1 Prior to the statutory date applicant also moved shipments from San Jose to seven other Iowa points, one other Nebraska point, nine Wisconsin points, and three Minnesota points. Subsequent to the date a shipment was transported to Louisville, Ky.

Before May 1, 1958, applicant transported shipments from Watsonville to two other Minnesota points, Hopkins and Albert Lea, and two other points in Michigan. It moved a shipment to Fairmont, Minn. after the date.

Before the statutory date, applicant moved shipments from Modesto to Hopkins, Marshall and St. Paul, Minn., and to eight other Iowa points. After May 1, 1958, it transported a shipment to Grand Island, Nebr.

Applicant also transported a shipment of frozen vegetables from Sanger to Peoria, Ill., subsequent to the "grandfather" date.

Subsequent to May 1, 1958, applicant transported shipments from Arlington to Madison, Portage, and West De Pere, Wis.

84 M.C.C.