Opinion
No. 1991
February 2, 1937
AUTOMOBILES — "PRIVATE MOTOR CARRIER" — ONE TRANSPORTING PROPERTY OF OTHERS IS CONTRACT MOTOR CARRIER
1. Wholesale grocer selling and delivering goods to merchants along route served by common motor carrier and charging merchants price of goods at wholesaler's place of business, plus estimated cost of transporting goods in wholesaler's trucks from such place of business to merchants, could not be required to charge rate for transportation services not less than rate common motor carrier was required to charge for same service, since wholesaler was "private motor carrier" and not "contract motor carrier" (Laws 1935, c. 65, §§ 2, 11, 14). 2. Private motor carrier's transportation of goods sold by it is not transportation of "property of others," within statute defining "contract motor carrier" as one who engages in transporting of property of others for compensation under contract (Laws 1935, c. 65, § 2( o, p).
APPEAL from the District Court, Natrona County; C.D. MURANE, Judge.
For the appellant there was a brief and the cause was argued orally by Joseph Garst of Douglas.
The point here involved is whether or not defendant's operations in delivering merchandise to its customers are performed as a contract motor carrier. The law involved is what is known as Chapter 65, Laws 1935, wherein private motor carriers are defined. The delivery transactions made by defendant would seem to fit precisely into the statutory definition of private motor carriers as defined by the act, except for two essential differences: (1) Defendant claims the goods to be its property during transportation in delivery; and (2) Defendant charges a compensation for such delivery. The essential elements which distinguish a contract motor carrier from a private motor carrier are: (a) A contract motor carrier seemingly must carry the property of others, while the definition of a private motor carrier makes no such distinction. (b) A contract motor carrier transports for compensation under a contract, expressed or implied, while no such provision is contained in the definition of a private motor carrier. The defendant has contended that it is not a contract motor carrier, since it is carrying its own property during delivery, which has been sold in the furtherance of a commercial enterprise. The legislature is presumed to have passed the act in question with all existing laws in mind. Commissioners v. Woods, 18 Wyo. 316. The property in the goods passes to the buyer when the contract is made and it is immaterial whether the time of payment, or the time of delivery, or both, is postponed. Sec. 98-703, R.S. 1931. MacLeod v. Brewing Co., 143 P. 440; Olin v. Lamback, 44 A.L.R. 354; Potts v. Benedict, 25 L.R.A. (N.S.) 609; Pharaoh v. Burnett, 240 P. 743; Lauber v. Johnston, 102 P. 873. The evidence in this case indicates that there is an unconditional contract for the sale of specific goods in a deliverable state. Defendant comes directly within the definition of a contract motor carrier. Defendant is using the highway for gain. Sproles v. Binford, 76 L.Ed. 1167; Commission v. Grimshaw, 53 P.2d 9; Sec. 2, Chapter 65, Laws 1935; Collins-Diet-Morris Co. v. State Corp. Com'n., 7 P.2d 123.
The plaintiff has in effect been granted a franchise. Frost v. Corporation Com'n., 73 L.Ed. 483. A certificate confers authority to operate as a public carrier, and affords the certificate holder protection against anyone who unlawfully interferes with the rights thereby conferred. Com'n of Ariz. v. Peoples Freight Line, 16 P.2d 420; Slusher v. Coach Company, 17 S.W.2d 1012; Stoner v. Underseth, 277 P. 437; Gilmer v. P.U.C. of Utah, 247 P. 284; P.U.C. of Utah v. Garviloch, 181 P. 272; Chelan Transfer Co. v. Foote, 288 P. 297.
For the respondent, there was a brief by Durham Bacheller of Casper, and oral argument by E. Paul Bacheller, Charles M. Crowell of Casper also appearing.
The question raised in this case is whether a wholesale company which delivers part of its merchandise to its customers over the highways of the State of Wyoming, using its own trucks, and which hauls no merchandise for anyone else, and does not hold itself out as a common carrier, is subject to regulation as a contract carrier, because it adds to the price of the merchandise a delivery charge estimated to cover the cost thereof. The effective act involved is Chapter 65 of the 1935 Session Laws. The right of private vehicles to use private highways seems to be fairly well enunciated by this court in the Weaver case, 40 Wyo. 462. The court in that case, cited and quoted extensively from ex-parte Dickie, (W.Va.) 85 S.E. 792. Defendant was a private carrier. It was stipulated between the parties that defendant owns and operates as a private carrier motor trucks for the delivery to its customers of merchandise purchased by them. It is contended strongly by the plaintiff that, despite this stipulation, the defendant was in fact a contract carrier. Plaintiff calls the court's attention to Rule 1 of the Uniform Sales Act. Sec. 98-703, R.S. 1931. And contends that under this rule, the title passed to the merchandise when the orders were taken by salesmen of the defendant, and that the delivery of the merchandise afterwards was a separate contract, placing defendant in the category of an ordinary contract carrier. We do not believe that the rule is controlling as there are other provisions of the sales act that should be considered. The intent of the act was to protect the rights of persons in the conduct of their own business. Holmes v. Railroad Commission, 242 P. 486. Under Section 2 of the sales act, one who sells and delivers his own goods is not a carrier at all. Mooney v. Tuckerman, 144 A. 891. We are unable to see wherein the case of MacLeod v. Aberdeen Brewing Company, 143 P. 440, cited by plaintiff, is in point, and the same may be said of the case of Olin v. Lamback, 44 A.L.R. 354 and of Potts Drug Co. v. Benedict, 25 L.R.A. (N.S.) 609. Section 18 of the motor act governs the rights of private motor carriers. Respondent admits that appellant owns the certificates of convenience referred to in its petition, but denies that the license granted respondent conflicts with the certificates issued to appellant. As a private carrier, defendant has complied with the laws of the State of Wyoming, and it is difficult to see wherein there is any unlawful interference with appellant's rights. The case of Com'n. of Arizona v. Peoples Freight Line, 16 P.2d 420, cited by appellant, differs so materially on the facts that it cannot be considered an authority in this case. The case of Pub. Commission of Utah v. Garviloch, 181 P. 272, involved competition between a taxi cab driver and a licensed automobile stage line. The case of Chelan Transfer Company v. Foote, 228 P. 297, involved a controversy between a licensed public carrier and one operating without a license. Certainly not an authority in the present case. We cite Berry on Automobiles, Sixth Edition, Volume 2, paragraph 1926 in support of our position. We submit that the judgment below should be affirmed.
Plaintiff is a common motor carrier of freight operating between Casper and Cheyenne, Casper and Lusk, Casper and Newcastle, in Wyoming, subject to the provisions of Chapter 65 of the laws of 1935. Defendant is a wholesale grocer of Casper. It sells to various retail merchants throughout central and northern Wyoming, and sometimes delivers the goods to its customers in trucks which it operates under permit issued to it as a private motor carrier subject also to the provisions of the law of 1935.
Plaintiff, as an intrastate common motor carrier, is required to charge rates fixed by the Public Service Commission. Defendant frequently sells and delivers goods to merchants along the route served by plaintiff, and charges the buyers the price of the goods at Casper plus the estimated cost of transporting the goods in defendant's trucks from Casper to the buyers' places of business. This estimated cost of transportation is less than plaintiff as a common motor carrier would have to charge for the same service. Plaintiff, asserting that defendant in following the practice above described is operating its trucks as a contract motor carrier, brought this action for injunction to prevent the continuance of the practice. The judgment of the trial court was for defendant and the plaintiff appeals.
By evidence or admission it was shown that defendant hauls only goods sold by it. It is not in the transportation business. The deliveries of which plaintiff complains are made to customers on orders obtained by defendant's salesmen. When the orders are received at Casper, the ordered goods are separated from defendant's other goods in its warehouse, wrapped and marked for shipment, and then shipped with an invoice and delivery slip which show separately the price of the goods at Casper and the charge for transportation. These two items which together make up the amount charged to the customer, are kept separate for defendant's convenience and information. Expenses of delivering goods are treated as "cost of operation."
Chapter 65 of the laws of 1935 provides for the regulation of motor carriers which are divided into three classes: common, contract and private. The question for decision is whether defendant is a contract or a private carrier. The question is important because, if defendant is a contract carrier operating in competition with plaintiff, the Public Service Commission should require defendant to charge a rate not less than plaintiff is required to charge for the same service. Sections 11 and 14; Public Service Commission v. Grimshaw, 49 Wyo. 158, 180, 53 P.2d 1. It is apparently conceded that, if defendant is a private carrier, the act does not provide for regulation of its rates. We therefore assume that the legislature did not intend to provide for the regulation of the rates of private motor carriers, as defined in the act, and we shall not consider any question as to its power to do so. See State v. Grimshaw, 49 Wyo. 192, 200-201, 53 P.2d 13; Stephenson v. Binford, 287 U.S. 251, 278.
Section 2 provides that for the purpose of the act, unless the context otherwise requires, the terms contract motor carrier and private motor carrier shall be construed respectively to mean:
"(o) Contract Motor Carrier. Any motor carrier, other than a common motor carrier, who engages in the transportation of * * * property of others by motor vehicle on and over the highways of the state, for compensation, under contract, expressed or implied."
"(p) Private Motor Carriers. A person engaged in the transportation, by motor vehicle or vehicles on and over the highways of the state, of property sold or to be sold by him, * * *, in the furtherance of any private commercial enterprise * * *."
We think the trial judge correctly decided that defendant is a private motor carrier as thus defined. There can be no doubt that defendant operates its trucks solely for the transportation of property sold by it in the furtherance of a private commercial enterprise.
Plaintiff, in seeking to have defendant brought within the statutory definition of a contract motor carrier, contends that the evidence shows that defendant receives compensation for the delivery of the goods sold by it, citing Collins-Dietz-Morris Co. v. State Corp. Com., 154 Okla. 121, 7 P.2d 123, 80 A.L.R. 561 and New Way Lumber Co. v. Smith, (Tex.) 96 S.W.2d 282. We think the fact that defendant receives compensation for delivering the goods is immaterial if it is a private motor carrier as defined by Section 2(p). The definition says nothing about compensation, and describes those who do, as well as those who do not, receive compensation for the kind of transportation in which the defendant is engaged.
Plaintiff, however, contends not only that defendant is transporting goods for compensation, but also that the transported goods are the property of others within the definition, Section 2(o), of a contract motor carrier. It is argued that the property in the goods sold by defendant is transferred to the buyers when the goods are selected and prepared for shipment at defendant's warehouse, and that deliveries thereafter made are transportation of the property of the buyers. Rule 1, of Section 19 of the Uniform Sales Act, § 98-703, R.S. 1931, is relied on. If we thought the time of the transfer of property in the goods sold by defendant were material we probably should have to hold that Rule 5, instead of Rule 1, of the cited section of the sales act controls, and that property in the goods was not transferred to the buyers until the goods were delivered to them by defendant. See Williston on Sales (2d ed.) § 280. But we need not decide this point, as we do not think the status of defendant as a private motor carrier would be affected by the fact that property in the transported goods may have passed to the buyers before the transportation began. The goods are "property sold by" defendant, within the meaning of Section 2(p). Sections 2(o) and 2(p) are intended to define and distinguish two classes of motor carriers. To carry out this intention we must hold that the transportation of goods sold by a private carrier, is not transportation of "property of others," within the meaning of Section 2(o). See Lewis' Sutherland, Stat. Const. (2d ed.) §§ 346, 347.
The judgment is affirmed.
BLUME, Ch. J., and RINER, J., concur.