Opinion
No. 35648
Decided April 29, 1959.
Motor transportation companies — Complaint that warehouseman engaged as motor transportation company — Warehouseman shipping stored goods on direction of customer-owner thereof — Burden of proof on complainant — Service rendered not that of common carrier — Res judicata — Collateral attack.
APPEAL from the Public Utilities Commission.
This cause was instituted before the Public Utilities Commission of Ohio against Lederer Terminal Warehouse Company by the Ohio Motor Freight Tariff Committee, Inc., hereinafter called complainant, and the Irregular Route Common Carriers Association of Ohio, an association of irregular-route common carriers operating under certificates issued by the commission and of certain individuals whose interests are alleged to be representative of those of other members of the association.
Complainant alleges that its complaint was filed under and by authority of Section 4921.02, Revised Code, and asks that the commission "determine on this complaint, as a question of fact, whether respondent [Lederer] `is engaged as a motor transportation company.'"
Complainant alleges further as follows:
"9. Respondent is a corporation and a motor transportation company, or common carrier by motor vehicle, engaged or proposing to engage in the business of transporting property, or the business of providing or furnishing such transportation service for hire, directly or `by lease or other arrangement,' for the public in general in or by motor propelled vehicles over public highways in this state, as set forth and defined in Section 4921.02 of the Revised Code * * *; and it is performing these services without first having obtained a certificate of public convenience and necessity from your commission.
"* * *
"12. Respondent is a warehouseman — a landlord of goods. As a warehouseman, respondent holds itself open to members of the public to rent space in its warehouse for the storage of goods belonging to various members of the public while those goods are awaiting withdrawal for sale or for use. That basically is respondent's business and that basically marks the respondent's connection with the goods which are stored.
"13. Respondent has embarked upon a program of not only storing the goods but also transporting them. To accomplish this, respondent procured the assistance of Donald Crisp who claims to be a contract carrier. By this device, respondent funnels the goods of some 600 or 700 different companies out of respondent's warehouse via the `contract carrier.' Thus, respondent forwards the public's freight to Donald Crisp who hauls it under contract with respondent. It is not a gratuitous service of respondent in any sense of the term. The public pays respondent and respondent pays Crisp `by lease or other arrangement' ( 4921.02 R.C.) to wit; rental charges to respondent and contract payments to Crisp. In this fashion respondent is engaged in the `business of transporting * * * property or * * * of providing or furnishing such transportation service, for hire ['] squarely within the definition of motor transportation company as defined in 4921.02. The respondent has become a common carrier without benefit of the preliminary findings and orders required by 4921.10, Revised Code."
To this complaint, Lederer filed an answer denying, for want of knowledge, the statements in the complaint concerning the formation of the complaint and association and their right to appear in this proceeding as complainants.
The answer then alleges:
"Answering further, respondent states that in a proceeding before your commission, being cause No. 2222, Donald Crisp, dba Crisp Motor Freight, filed his application to amend contract carrier permit No. 1907, by adding thereto, as a shipper, Lederer Terminal Warehouse Company; that public hearings were had on said application * * *; that at the conclusion of said hearings, briefs were filed by the parties thereto, and * * * oral argument was had before your commission; that * * * the written report of attorney examiner, Irvan A. Gorroll, was made to which written report exceptions were filed on behalf of protestants, and reply to said exceptions was filed on behalf of applicant; that * * * oral argument was had before your commission and * * * your commission issued its order in said proceeding, which order was fully complied with by the applicant and respondent, and an amended contract carrier permit was issued to Donald Crisp, dba Crisp Motor Freight, adding Lederer Terminal Warehouse Company, as a shipper on said permit; that no application for rehearing was filed by any party to said proceeding, and said order and said amended permit are still a valid and existing order of the commission, and a valid and existing permit.
"Respondent says that said order and said amended permit No. 1907, have been strictly adhered to by it and so far as its officers know by the contract carrier Donald Crisp."
Lederer then denies any allegations in the complaint not specifically admitted to be true.
The commission, following public hearing on the complaint, dismissed it and denied applications for rehearing.
The cause is before this court upon the appeal of complainant from the order of the Public Utilities Commission.
Mr. Herbert Baker and Mr. Robert N. Krier, for appellant.
Mr. William Saxbe and Mr. Mark McElroy, attorneys general, Mr. Hugh A. Sherer, Mr. James F. DeLeone and Mr. Herbert T. Maher, for appellee Public Utilities Commission.
Mr. Dan H. Armstrong, Messrs. Hahn, Loeser, Keough, Freedheim Dean and Mr. Eli Goldston, for appellee Lederer Terminal Warehouse Company.
It is urged by Lederer that the instant proceeding constitutes a collateral attack upon the order heretofore made by the commission adding Lederer as a shipper to the Crisp permit, and that, since the issues raised here were, or could have been, raised in the prior proceeding the order in such proceeding is res judicata as to this proceeding.
The commission takes the position, however, that, in the absence of specific legislative enactment, the doctrine of res judicata has not been applied to orders of regulatory and licensing agencies in this state, and that, as a regulatory and licensing agency, the commission is given by statute continuing jurisdiction over the utility and motor-transportation industry.
Although our view of this matter makes unnecessary our decision as to the point, it is difficult to see how, with different parties and different issues, the order in the Crisp proceeding can be res judicata as to this proceeding. State, ex rel. Ohio Water Service Co., v. Mahoning Valley Sanitary District, ante, 31.
The capacity of complainant to institute this proceeding is questioned in the answer of Lederer. However, since that question is not urged upon us in this appeal, we do not find it necessary to decide it.
Only two witnesses appeared at the hearing before the commission. The first merely identified the complainant and its interest. The remainder of the record is made up of the testimony of Lederer's president, elicited as on cross-examination. From this testimony, the commission made the following findings of fact:
"(1) The respondent Lederer Terminal Warehouse, is a shipper on the contract motor carrier permit of Donald Crisp.
"(2) Insofar as this complaint is concerned, the contract motor carrier permit authority of Donald Crisp is limited to the transportation of grocery commodities and other items sold in supermarkets. The permit is further restricted to state that each shipment transported must have had a prior or subsequent storage or processing in a Lederer Terminal Warehouse Company.
"(3) Customers of the Lederer Terminal Warehouse Company store carload quantities of their merchandise with the Lederer Terminal Warehouse Company; as sales are made of smaller quantities the Lederer Terminal Warehouse Company is instructed to ship LTL shipments of such stored goods to various customers of the storing company.
"(4) Under the warehouse contract entered into between Lederer Terminal Warehouse and its customers the warehouse is given full power and authority to arrange for the transportation of such goods in storage, being authorized to designate the carrier, and to attend to all the other matters incident to shipping.
"(5) At no time is actual legal title to any of these warehoused goods invested in the Lederer Terminal Warehouse Company. It performs this service of arranging for transportation facilities by virtue of a delegation power to arrange such service, contained in the warehousing contract.
"(6) As a part of its total service and as an adjunct to its general warehousing service, Lederer Terminal Warehouse Company prepays the freight on such shipments and sends a receipted freight bill to its customer; who then reimburses the warehouse. This arrangement is followed whether common or contract carriage is employed. In no event does the Lederer Terminal Warehouse Company bill its customer for transportation charges in excess of those made by the carrier."
A review of the record indicates that the above findings of fact are fully substantiated by the record. From these findings, the commission, in its original order, concluded as follows:
"The task which this complainant has assigned to itself, under the pleadings it filed, is indeed a difficult one. It has elected to show that the operation in question is in derogation of the best interest of the entire motor transportation industry. It has undertaken to show that the Lederer Terminal Warehouse is actually engaging and rendering services as if it were a common carrier by motor vehicle. It has undertaken to show that the practices of which it complains are hindering the regular and irregular route transportation companies in the publication of their own tariff rates. It has undertaken to show that the mere fact that a contract carrier authority exists between Donald Crisp and this respondent constitutes a complete mockery of both common and contract carrier conceptions.
"In the opinion of the commission none of these matters has been sufficiently proved of record to the extent that it would justify the taking of the action requested by this complainant in the prayer of its complaint."
In its application for rehearing, the complainant contended that it was not required to prove the allegations of its complaint, that such allegations were inserted for the purpose of prompting the commission to assume jurisdiction, and that, once having assumed jurisdiction, the commission had the burden of conducting an investigation and, in effect, proving the allegations.
In its order, made pursuant to this application for rehearing, the commission said:
"The theory which this complainant thus advances appears to do violence to the usually accepted rules of pleading and practice, since it is elementary that any party complainant before this commission assumes the duty and obligation of proving all of the material allegations contained in his original complaint. The commission, therefore, finds these arguments to be not well made, and hereby reaffirms its previous holding that this complainant has failed to sustain its burden of proof."
With that conclusion of the commission we are in complete accord. This court said in Pennsylvania Rd. Co. v. Public Utilities Commission, 126 Ohio St. 260, 185 N.E. 49:
"The other question is whether the order granted is sustained by both public convenience and public necessity. The applicant carried the burden on this question, but the burden was upon the plaintiff in error on the question whether the granting of the application will substantially impair the existing rights of the protestant." (Emphasis added.)
This court likewise held in Wooster Freight Lines, Inc., v. Public Utilities Commission, 163 Ohio St. 11, 125 N.E.2d 11, that the burden of proof is on a contract carrier, who seeks permission to add a shipper to his list, to prove a deficiency in existing service, a demand for proffered service and that the filling of such demand will not conflict with the public interest.
In our opinion, the complainant herein has a similar burden of proof concerning the allegations of its complaint.
We can not say, from a review of the record, that the order of the commission that the complainant has not sustained its burden of proof is either unlawful or unreasonable, and the order is, therefore, affirmed.
Order affirmed.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL and HERBERT, JJ., concur.
PECK, J., not participating.