the subsequent order of the Commission restricting his operation. Protestants claim, however, that applicant actually restricted his operations and that the continuance of operations was not entirely dependent upon applicant's supervision. We cannot agree with pro testants' contentions. Applicant has been in operation since 1931, and, during the entire period from that date until his illness, he managed and directed the operation, solicited traffic, and dispatched the trucks. Prior to his illness, he made numerous trips between Quincy, Boston, and New York in the conduct of such operation. While on June 1, 1935, he maintained a terminal in New York City, he had no office. In the latter part of 1935, in order to relieve himself of the necessity of traveling, he opened an office in New York City and employed certain persons to handle matters in connection with traffic moving through that point. Such arrangement did not prove satisfactory due to the unreliability of the persons employed, and the office was closed in February 1936. We are convinced that applicant's operation was a "one-man" business, and that from the beginning of his illness a reasonable attempt was made to continue the operations conducted on the statutory date. The record shows no intent to abandon the general-commodity operations. On the contrary, the transportation during 1936 and 1937 of occasional shipments of commodities other than chemicals and quarry products and related commodities is indicative of a holding out to transport any traffic offered. We conclude, therefore, that the interruption of service during the period of applicant's illness was one beyond his control. A similar conclusion is warranted with respect to operations conducted after he had recovered from his illness. Such operations were in compliance with the authority granted by the Commission as a result of the statement referred to above. At the time of signing such statement, applicant appears to have been unaware of his right to a formal hearing and determination by the Commission of his operating rights. Upon being informed thereof, he immediately took appropriate steps to have the proceeding reopened. We consider that applicant has acted with diligence; that the interruption of service subsequent to his illness was not one within his control; and that he is entitled to authority to continue those operations conducted on the statutory date, as hereinbefore described. Our findings, herein, however, will provide that no duplicate authority be granted insofar as the transportation of chemicals and quarry products and related commodities are concerned. Extension application.—The authority sought in this application is similar to that sought in the "grandfather" application. As proof of public convenience and necessity applicant relies upon the testimony of one shipper witness and the abstract of shipments submitted at the "grandfather" hearing, a copy of which was introduced in the record in the instant proceeding. The shipper, located at Quincy, Mass., has used applicant's services since sometime in 1941 for the transportation of building materials between various points in Massachusetts, Connecticut, and Rhode Island. The principal service in which it is interested, however, concerns movements from Quincy to points in Rhode Island and Connecticut. The shipper owns 50 motor vehicles, 13 of which are stationed at Quincy, and performs most of the transportation it requires in its own trucks. Applicant's services would be used to handle occasional overflow traffic for which the shipper does not have available trucks of its own. A large number of motor carriers now operate under appropriate authority in the territory involved, and the shipper has used their services in the past. There is no showing that present authorized carriers cannot fulfill the shipper's requirements satisfactorily, and that additional service is required. In a number of cases, we have found that long continued past operations are some evidence of public convenience and necessity. The abstract of shipments submitted by applicant, however, shows no continuous operations over a period of years in the transportation of commodities to and from points and territories other than those which are included in the authority granted herein in the "grandfather" application. We conclude, therefore, that applicant has failed to establish that public convenience and necessity require the proposed operation, and that the application should be denied. Findings. On reconsideration, in No. MC-1771, we find that applicant on June 1, 1935, was, and continuously since has been, except for an interruption of service beyond his control, in bona fide operation as a common carrier by motor vehicle, in interstate or foreign commerce, (1) of general commodities, except articles of unusual value, commodities in bulk, dangerous explosives, commodities requiring special equipment, commodities requiring refrigeration, household goods as defined in Practices of Motor Common Carriers of Household Goods, 17 M. C. C. 467, quarry products, artificial stone, quarry machinery, and machinery incidental to the manufacture, preparation for use, or erection of artificial or natural stone, between New York, N. Y., on the one hand, and, on the other, Providence, R. I., Worcester, Mass., Boston, Mass., and points within 25 miles of the State House, Boston, (2) of quarry products, artificial stone. quarry machinery, and machinery incidental to the manufacture, preparation for use, or erection of artificial or natural stone between points in Massachusetts, Rhode Island, Connecticut, New York, and New Jersey, and (3) of chemicals from New York City, and all points in New Jersey to all points in Massachusetts, except from New York City to Worcester, Boston, and points within 25 miles of the State House, Boston, over irregular routes in each instance; that applicant is entitled to a certificate authorizing the continuance of such operations; and that the application should be denied in all other respects. On reconsideration, in No. MC-17771 (Sub-No. 1), we further find that applicant has failed to show that the present or future public convenience and necessity require the proposed operation, and the application should be denied. Upon compliance by applicant with sections 215 and 217 of the Interstate Commerce Act, and our rules and regulations thereunder, an appropriate certificate will be issued. An order denying the application, except to the extent No. MC-17771 is granted herein, will be entered. COMMISSIONER ROGERS dissents. 43 M. C. C. No. MC-49126 ZIMMERMAN TRUCKING SERVICE, INC., CONTRACT CARRIER APPLICATION Decided November 8, 1943 On reconsideration, applicant's operations found to be those of a contract, rather than of a common, carrier by motor vehicle. Issuance of a permit, in lieu of certificate heretofore authorized, approved upon compliance by applicant with certain conditions, and application in all other respects denied. Prior reports 28 M. C. C. 233, and 42 M. C. C. 826. Appearances as shown in prior reports. REPORT OF THE COMMISSION ON RECONSIDERATION BY THE COMMISSION: In the prior reports herein, 28 M. C. C. 233, and 42 M. C. C. 826, decided March 1, 1943, division 5 found that the operations of applicant, Zimmerman Trucking Service, Inc., of Knightstown, Ind., and its predecessors were those of a common carrier by motor vehicle, and that it was entitled to a certificate of public convenience and necessity under the "grandfather" clause of section 206 (a) of the Interstate Commerce Act authorizing continuance of operations, in interstate or foreign commerce, as a common carrier by motor vehicle of the commodities, from and to the points or territory, and in the manner described in the attached appendix. The application was denied in all other respects. On petition of applicant, which questioned only the accuracy of the division's finding that it was a common, rather than a contract, carrier by motor vehicle, we reopened the proceeding for reconsideration on the record as made and vacated the order of March 1, 1943, entered in connection with the prior report on further hearing. The facts with respect to applicant's operations are set forth in the prior reports herein and will be restated here only to the extent necessary to dispose of the only question raised by applicant, namely, that of status. In Craig Contract Carrier Application, 31 M. C. C. 705, on reconsideration after two prior reports by division 5, 24 M. C. C. 331 and 28 M. C. C. 629, we discussed at length the distinguishing characteristics of common and contract carriage, and found that while a 'On further hearing the title of the proceeding was changed as now shown, in conformity with that used in the report on further hearing, 42 M. C. C. 826. holding out to serve the public was the ultimate and final test as between a common and contract carrier, the fact, or not, of a past holding out could not be determined simply on the basis of an applicant's oral admission or disclaimer, but rather must be determined by an examination of an applicant's actual past conduct and such secondary or subordinate tests as the number of contracts held, the frequency of their change, the commodities transported, the character of the physical operations performed, the use or not of regular routes, the giving or not of scheduled service, the observance or not of uniform charges, et cetera, all of which when collated either establish or negative specialization on the part of the operator, either as respects the physical operations performed, or as respects the shippers served, and to the same degree establish or negative common carriage. In other words, it was concluded that the commonly accepted secondary tests of a holding out, collectively and in the final analysis, speak in terms of specialization or not as the ultimate test of a public holding out which, in turn, fixed the common or contract character of a given service. In the light of the foregoing, we shall reexamine the facts in the instant proceeding to the extent necessary to dispose of the question presented herein. Since 1931, applicant 2 has been transporting certain classes of commodities under contracts with individual shippers. On June or July 1, 1935, written contracts were in effect with two shippers of paper products, four shippers of iron and steel wire products, five shippers of canned goods, and four shippers of animal or poultry feeds. Three of the four shippers of iron and steel wire products were affiliated companies. Since that time, contracts with one shipper of paper products and one shipper of iron and steel wire products have expired and were not renewed. Although a witness for applicant claimed that no contracts with additional shippers have been entered into since February 1936, it appears that several additional contracts have been entered into and subsequently canceled with shippers of feeds and canned goods. With these exceptions, applicant has continued to transport for substantially the same shippers, although at the time of the further hearing herein, transportation was being performed for only seven shippers under contract. Prior to the original hearing herein, applicant transported a number of shipments wherein the consignees paid the freight charges. The services performed, however, were under the contract with the consignor and at the request of the latter, and the transportation charges collected were based on that contract. That practice has now ceased. Applicant is the successor in interest to certain motor carriers as specifically described in the prior reports herein. The term "applicant" as used herein will mean any or all depending on the facts stated. |