No. MC-C-382

R. D. FOWLER MOTOR LINES, INC., v. COLONIAL MOTOR FREIGHT LINES, INC.

Submitted June 2, 1944. Decided October 6, 1944

Defendant found not to be rendering reasonably continuous and adequate service as authorized and required by its certificate of public convenience and necessity over a regular route between Salisbury and Marion, N. C., and at certain intermediate and off-route points. Defendant ordered to institute reasonably continuous and adequate service. Proceeding held open pending entry of further order or orders.

Wallace L. Schubert for complainant.

Glenn F. Morgan and H. B. Koonce for defendant.

REPORT OF THE COMMISSION

DIVISION 5, COMMISSIONERS LEE, ROGERS, AND PATTERSON

BY DIVISION 5:

Exceptions were filed by defendant to the order recommended by the examiner. Our conclusions differ slightly from those recommended. By complaint filed October 21, 1943, R. D. Fowler Motor Lines, Inc., alleges that Colonial Motor Freight Lines, Inc., of High Point, N. C., the holder of a certificate issued in No. MC-1380, on July 9, 1942, has abandoned portions of the operations covered by its certificate authorizing the transportation of general commodities, with exceptions, as follows:

Route 1. In connection with its regular route between Salisbury and Marion, N. C., all service at Marion and all intermediate points and at all off-route points authorized, namely, Cooleemee, Mocksville, Harmony, Stony Point, Hiddenite, Taylorsville, North Wilksboro, Newton, Maiden, Lincolnton, Cherryville, Granite Falls, Lenoir, Valmead, Drexel, and Rutherford College, N. C.

Route 2. In connection with its regular route between Charlotte, N. C., and Baltimore, service at the off-route points of Davidson, Mooresville, Mount Pleasant, Albermarle, Denton, Pomona, Kernersville, Mount Airy, Yanceyville, and Roxboro, N. C., Clarksville, La Crosse, Lawrenceville, and Occoquan, Va., and Annapolis and Cockeysville, Md.

Route 3. In connection with its regular route between Greensboro, N. C., and Richmond, Va., service at the intermediate points of Reidsville, N. C., and Danville, Va., and at the off-route points of Walnut Cove, Madison, Mayodan, Stoneville, Leaksville, Spray, and Draper, N. C., and South Boston, Va.

Route 4. All irregular-route service between Baltimore, on the one hand, and points in Gaston, Cleveland, and Rutherford Counties, N. C., on the other.

Complainant prays that defendant's certificate insofar as it authorizes the abandoned operations be revoked.

Complainant's president and general manager and its traffic manager testified in support of the complaint. In June, 1942, defendant's agent at Lenoir, an off-route point on route 1, informed complainant's president by telephone that defendant had closed its terminal at Morganton, N. C., a point on that route, and then was closing its terminal at Lenoir and ceasing operation in that region for the duration of the war. Thereafter, complainant did not encounter any competition with defendant at points in the region which both carriers are authorized to serve. Approximately 90 percent of the out-bound traffic at these points is new furniture. Complainant investigated the matter further by inquiring of its drivers and of furniture shippers at Morganton, Lenoir, and Marion. This investigation indicated that defendant's trucks had not been seen at any of these 3 towns subsequent to June 1942, and that its telephones at those points had been removed and its terminals closed. Thereafter, every 30 or 60 days complainant's president called on the shipping clerks of the furniture manufacturers at Lenoir, Drexel, Morganton, and Marion and in each instance was told that defendant was not serving these factories. He made no investigation with respect to defendant's service at furniture factories in North Wilkesboro and Newton, N. C., or at other points which defendant is authorized to serve.

Complainant's traffic manager occupied a similar position with defendant for approximately 5 years prior to August 8, 1943, on which date he entered complainant's employ. During the former period he was quite familiar with all of defendant's operations, as his duties required. At the time this witness left defendant's employ, defendant operated about 54 trucks, tractors and trailers, and approximately 75 percent of its traffic consisted of war materials, necessarily, much of it was wholly war business. Prior to June 1942, defendant rendered a daily service over route 1, between Salisbury and Marion. About 1941, the Morganton terminal was closed, subsequent to which time the business there was handled through the Lenoir terminal. In either October or November 1941, defendant applied to the regulatory authority of North Carolina for certain intrastate operating authority as a common carrier, which was granted, and operation thereunder was begun in January 1942. Defendant then was short of equipment and decided to cease operations in western North Carolina in order to undertake intrastate operations between Charlotte and New Bern. This witness and defendant's president conferred with representatives of the Office of Defense Transportation and of this Commission at Charlotte for a discussion of the situation, and they were informed that such cessation of service would amount

to abandonment and would require the approval of this Commission. Nevertheless, in June 1942, operations at Lenoir, Morganton, and Marion were terminated. The witness then went to Lenoir, where he instructed the local agent to close the terminal, remove the office furniture, have the telephone disconnected, notify the owner of the premises, withdraw the pick-up truck, and inform all shippers and receivers of traffic that for the duration of the war defendant had discontinued its terminal and office at that point, and no longer would operate in that region. During the same month, he wrote a letter to the Smith Transfer Company, in Lenoir, to the effect that thereafter all traffic destined by its line to points between Salisbury and Marion would be interchanged by the two carriers at Charlotte. Thereafter, defendant did not despatch any trucks over that route except for the delivery of a few shipments of 4,000 or 5,000 pounds at such points as Statesville, and Hickory, N. C., intermediate points on route 1, and Mooresville, N. C., an off-route point to route 2. After June 1942, no traffic solicitors were sent over the route and all shippers for service were informed by the witness that defendant did not possess sufficient equipment to provide the service and they were referred to other carriers, who might interchange traffic with defendant at Charlotte.

With respect to route 2 between Charlotte and Baltimore the following off-route points are said by the witness not to have been served at all by defendant during his period of employment, viz, Mount Pleasant, Mount Airy, South Boston, Clarksville, La Crosse, Lawrenceville, Occoquan, Annapolis, and Cockeysville. The rest were served infrequently, probably once every 2 or 3 months, and then only in the case of so-called "pay-loads," mainly full truckloads. All smaller shipments destined to or from any of these points were handled by interchange with other motor carriers.

With respect to route 3 between Greensboro and Richmond, the intermediate and off-route points named were served not in excess of once every 1 to 3 years and then in the case of truckload shipments only, usually for governmental purposes. All other traffic destined to or from those points was interchanged with other carriers at Greensboro or Winston-Salem, N. C. With respect to the irregular-route service between Baltimore and points in Gaston, Cleveland, and Rutherford Counties, all collection and delivery of less-than-truckload shipments in those counties was discontinued 2 or 3 years prior to the hearing herein, and such traffic subsequently received was interchanged at Charlotte with other carriers, such as Smith Transfer Company and Frederickson Motor Express Corporation, both of which transport furniture in less-than-truckload quantities with other commodities.

Complainant prays that defendant's certificate insofar as it authorizes the abandoned operations be revoked.

Complainant's president and general manager and its traffic manager testified in support of the complaint. In June, 1942, defendant's agent at Lenoir, an off-route point on route 1, informed complainant's president by telephone that defendant had closed its terminal at Morganton, N. C., a point on that route, and then was closing its terminal at Lenoir and ceasing operation in that region for the duration of the war. Thereafter, complainant did not encounter any competition with defendant at points in the region which both carriers are authorized to serve. Approximately 90 percent of the out-bound traffic at these points is new furniture. Complainant investigated the matter further by inquiring of its drivers and of furniture shippers at Morganton, Lenoir, and Marion. This investigation indicated that defendant's trucks had not been seen at any of these 3 towns subsequent to June 1942, and that its telephones at those points had been removed and its terminals closed. Thereafter, every 30 or 60 days complainant's president called on the shipping clerks of the furniture manufacturers at Lenoir, Drexel, Morganton, and Marion and in each instance was told that defendant was not serving these factories. He made no investigation with respect to defendant's service at furniture factories in North Wilkesboro and Newton, N. C., or at other points which defendant is authorized to serve.

Complainant's traffic manager occupied a similar position with defendant for approximately 5 years prior to August 8, 1943, on which date he entered complainant's employ. During the former period he was quite familiar with all of defendant's operations, as his duties required. At the time this witness left defendant's employ, defendant operated about 54 trucks, tractors and trailers, and approximately 75 percent of its traffic consisted of war materials, necessarily, much of it was wholly war business. Prior to June 1942, defendant rendered a daily service over route 1, between Salisbury and Marion. About 1941, the Morganton terminal was closed, subsequent to which time the business there was handled through the Lenoir terminal. In either October or November 1941, defendant applied to the regulatory authority of North Carolina for certain intrastate operating authority as a common carrier, which was granted, and operation thereunder was begun in January 1942. Defendant then was short of equipment and decided to cease operations in western North Carolina in order to undertake intrastate operations between Charlotte and New Bern. This witness and defendant's president conferred with representatives of the Office of Defense Transportation and of this Commission at Charlotte for a discussion of the situation, and they were informed that such cessation of service would amount

to abandonment and would require the approval of this Commission. Nevertheless, in June 1942, operations at Lenoir, Morganton, and Marion were terminated. The witness then went to Lenoir, where he instructed the local agent to close the terminal, remove the office furniture, have the telephone disconnected, notify the owner of the premises, withdraw the pick-up truck, and inform all shippers and receivers of traffic that for the duration of the war defendant had discontinued its terminal and office at that point, and no longer would operate in that region. During the same month, he wrote a letter to the Smith Transfer Company, in Lenoir, to the effect that thereafter all traffic destined by its line to points between Salisbury and Marion would be interchanged by the two carriers at Charlotte. Thereafter, defendant did not despatch any trucks over that route except for the delivery of a few shipments of 4,000 or 5,000 pounds at such points as Statesville, and Hickory, N. C., intermediate points on route 1, and Mooresville, N. C., an off-route point to route 2. After June 1942, no traffic solicitors were sent over the route and all shippers for service were informed by the witness that defendant did not possess sufficient equipment to provide the service and they were referred to other carriers, who might interchange traffic with defendant at Charlotte.

With respect to route 2 between Charlotte and Baltimore the following off-route points are said by the witness not to have been served at all by defendant during his period of employment, viz, Mount Pleasant, Mount Airy, South Boston, Clarksville, La Crosse, Lawrenceville, Occoquan, Annapolis, and Cockeysville. The rest were served infrequently, probably once every 2 or 3 months, and then only in the case of so-called "pay-loads," mainly full truckloads. All smaller shipments destined to or from any of these points were handled by interchange with other motor carriers.

With respect to route 3 between Greensboro and Richmond, the intermediate and off-route points named were served not in excess of once every 1 to 3 years and then in the case of truckload shipments only, usually for governmental purposes. All other traffic destined to or from those points was interchanged with other carriers at Greensboro or Winston-Salem, N. C. With respect to the irregular-route service between Baltimore and points in Gaston, Cleveland, and Rutherford Counties, all collection and delivery of less-than-truckload shipments in those counties was discontinued 2 or 3 years prior to the hearing herein, and such traffic subsequently received was interchanged at Charlotte with other carriers, such as Smith Transfer Company and Frederickson Motor Express Corporation, both of which transport furniture in less-than-truckload quantities with other commodities.