Opinion
No. 34082
Decided March 2, 1955.
Public Utilities Commission — Regulation of private shipping — Private contract carriers — Shipper entitled to secure transportation at most advantageous rates — Contract carrier seeking permission to add shipper — Duty to show deficiency in subsisting service — Inability to serve at lower rate a deficiency in service — Appeal — Finding and order of commission not disturbed, when.
1. The regulation of private shipping through private contract carriers should not unnecessarily interfere with the right of private contract, and a shipper should be afforded an opportunity to secure transportation at the most advantageous rates, consistent with the public interest.
2. It is incumbent upon a contract carrier who seeks permission to add a shipper to his list to show a deficiency in the service of a subsisting and protesting common carrier presently serving the shipper; that there is a demand for the proffered service; and that the filling of such demand will not conflict with the public interest.
3. Inability of a carrier to provide service to his shipper at rates substantially equivalent to that of other proffered carrier service constitutes a deficiency in service within the purview of the applicable statutes.
4. The Supreme Court will not, on appeal from the Public Utilities Commission, substitute its judgment for that of the commission on questions of fact and will not disturb a finding and order of the commission unless it appears from the record that such finding and order are manifestly against the weight of the evidence or are so clearly unsupported by it as to show misapprehension, mistake, or willful disregard of duty.
APPEAL from the Public Utilities Commission.
In this case there is a minimum of dispute as to factual issues. H.G. Stauffer Trucking Company, Inc., of Wooster, Ohio, hereinafter designated as applicant, is a holder of contract motor carrier permit No. 868 and applied to the Public Utilities Commission for an amendment to that permit adding the Bauer Manufacturing Company of Wooster, hereinafter designated Bauer, as a shipper for the purpose of hauling ladders and scaffolds for Bauer to points in the state of Ohio and hauling raw materials to Bauer's plant and warehouses.
For almost 31 years Bauer has been in the business of manufacturing ladders and scaffolds at Wooster and during that time has been using common carrier service, both rail and truck, to deliver its manufactured products to its customers. During the past two years appellant, Wooster Freight Lines, Inc., hereinafter designated protestant, has been handling the movement of ladders and scaffolds from Bauer's plant at Wooster two or three times a week. Protestant has performed this service under its regular common carrier authority which authorizes it to transport all types of commodities from and to Wooster, Ohio.
The protestant opposed the proposed amendment to applicant's motor carrier permit before the commission. The whole controversy revolves around transportation rates to be charged to Bauer, so far as they are affected by loading 32 1/2-foot trailers offered by applicant as against 26- and 30-foot trailers and one 32 1/2-foot trailer offered by the protestant. It appears from the record that the ladders and scaffolds in question are bulky freight of comparatively light weight, and it is claimed by the applicant and Bauer that the ladders and scaffolds can be more economically loaded and hauled on the larger trailers because the shipper must pay the minimum truck-load rate for 10,000 or 12,000 pounds, which is more than the weight of a trailer load of ladders and scaffolds.
At the hearing, the secretary and treasurer of Bauer testified that it ships approximately 3,000,000 pounds of ladders and scaffolds from Wooster per year; that as to a 28-foot trailer the average load of mixed ladders will run approximately 6,000 or 7,000 pounds for which Bauer must pay a minimum truck-load rate based on 10,000 or 12,000 pounds; and that, although it had never loaded, to his knowledge, a 32-foot trailer, he believed Bauer could load approximately 8,000 to 8,400 pounds on such a trailer.
The president of the protestant testified that it owns and operates 10 trailers, two 30-foot trailers, one 32 1/2-foot trailer and the others are from 24 to 26 feet in length; that for the past two years protestant has hauled freight for Bauer two or three times a week; that there has been no complaint by Bauer as to either rates or service; that some of protestant's rates had increased, particularly as to ladders; and that ladder rates had increased almost 100 per cent, although scaffold rates had increased only about 10 or 15 perce cent.
The Public Utilities Commission granted the application, whereupon the protestant appealed to this court. Other facts are stated in the opinion.
Messrs. George, Greek, King McMahon, for appellant.
Mr. C. William O'Neill, attorney general, Mr. James M. Burtch, Jr., and Mr. Everett H. Krueger, Jr., for appellee.
The protestant and the commission agree that it is incumbent upon a contract motor carrier who seeks permission to add a shipper to his list, to show a deficiency in the service of a subsisting and protesting common carrier presently serving the shipper; that there is a demand for the proffered service; and that the filling of such demand will not conflict with the public interest.
The attorney examiner, before whom the witnesses testified at length in this case, found specifically that "the proposed operation does not come within the definition of a motor transportation company and is that of a private motor carrier"; that "the contract is bilateral"; that "a lesser contract rate resulting from the use of larger equipment by the contract carrier is a sufficient deficiency upon which to base the granting of a contract carrier permit when the shipper's business is highly competitive"; and that "the granting of the application would be consisted wwith the policy and purpose of the act regulating transportation by motor vehicle." The examiner recommended that the application be granted, limiting the operation, however, to outbound movements from Wooster.
The commission adopted as its own the summary of the evidence and the findings contained in the report of its attorney examiner and granted the application, conditioned on the filing of an amended contract of carriage limiting the operation to outbound movements from Wooster.
The protestant in its assignment of errors claims that the commission erred in that its findings are not supported by substantial evidence or any evidence and are contrary to law; and, especially, that the commission erred in finding on the evidence a deficiency in the service of a subsisting and protesting common carrier.
This court has frequently held that it will not, on appeal from the Public Utilities Commission, substitute its judgment for that of the commission on questions of fact and will not disturb a finding and order of the commission unless it appears from the record that such finding and order are manifestly against the weight of the evidence or are so clearly unsupported by it as to show misapprehension, mistake, or willful disregard of duty. Hocking Valley Ry. Co. v. Public Utilities Commission, 92 Ohio St. 362, 110 N.E. 952; Settle et al., Partners, v. Public Utilities Commission, 94 Ohio St. 417, 114 N.E. 1036; Hardin-Wyandot Lighting Co. v. Public Utilities Commission, 108 Ohio St. 207, 140 N.E. 779: Co-operative Legislative Committee of the Transportation Brotherhoods v. Public Utilities Commission, 150 Ohio St. 270, 80 N.E.2d 846; Village of Glouster v. Public Utilities Commission, 155 Ohio St. 162, 97 N.E.2d 658; City of Marietta v. Public Utilities Commission, 148 Ohio St. 173 74 N.E.2d 74.
The protestant relies on Jones v. Public Utilities Commission, 141 Ohio St. 237, 47 N.E.2d 780, where this court held:
"Ordinarily, it is incumbent upon a contract motor carrier who seeks permission to add a shipper to his list, to show a deficiency in the service of a subsisting and protesting common carrier, that there is a demand for the proferred service, and that the filling of such demand will not conflict with the public interest."
The protestant claims that on the authority of the Jones case the order in this case must be reversed because the applicant has not shown any deficiency in the service of any subsisting and protesting common carrier and in particular has not shown any deficiency in the service of this protestant.
The record shows and the commission found that Bauer, in using common carrier service for the transportation of its products to market, has been obliged to pay rates based on a minimum load, when the protesting carriers now serving it can not and have not offered it service equivalent to that now offered by the applicant. In the opinion of this court, an inability of a carrier to provide service to its shipper at rates substantially equivalent to that of other proffered carrier service constitutes a deficiency in service within the purview of the applicable statutes.
The commission in granting the application in this case relied on Bray v. Public Utilities Commission, 139 Ohio St. 409, 40 N.E.2d 666, a case similar in facts to the instant case, wherein this court held:
"The primary purpose of legislative enactment for the regulation of carriers through the Public Utilities Commission is to secure the best transportation service possible, and not to conserve the private interest of any carrier, unless the public interest demands i it.
"The regulation of private shipping through private contract carriers should not unnecessarily interfere with the right of private contract, and a shipper should be afforded an opportunity to secure transportation at the most advantageous rates, consistent with the public interest."
Judge Zimmerman, in his opinion in the Jones case, properly appraised as follows the issues in the Bray case:
"* * * the shipper was engaged in a highly competitive business. A common carrier was transporting its products by frequent trips between Crooksville and Sebring, Ohio, in a one and one-half ton truck at a cost of 30 cents per 100 pounds, and refused to procure a truck of greater capacity whereby the transportation cost would be reduced. A nearby contract carrier with a much larger truck entered into an agreement with the shipper to carry its products between the same points at a rate of 19 cents per 100 pounds, and asked the approval of the Public Utilities Commission, which was refused as inimical to the public interest.
"Reversing the commission's order, this court held that `in the case of private transportation, a present permit holder should be required to furnish approximately equivalent service before he is entitled by protest to deprive the shipper of a substantially more beneficial contract,' unless it clearly appears that a contrary policy is necessary to protect the public interest."
That statement shows the similarity of facts and issues in the Bray case to those in the instant case and points the way to the decision which must be here made. Under the circumstances of the instant case, there appears no reason why this court should reverse the order of the Public Utilities Commission as being unreasonable or unlawful. See Fischbach, d.b.a. Fischbach Trucking Co., v. Public Utilities Commission, 143 Ohio St. 575, 578, 579, 56 N.E.2d 162.
The order of the Public Utilities Commission is affirmed.
Order affirmed.
WEYGANDT, C.J., MATTHIAS, ZIMMERMAN, STEWART and BELL, JJ., concur.