Opinion
Nos. 2136, 2141 and 2144.
March 9, 1970.
Karl Schmidt, Morrison, Hecker, Cozad, Morrison Curtis, Kansas City, Mo., Van Osdel, Foss, Johnson Miller, Fargo, N.D., Lord Bissell Brook, Chicago, Ill., for International Transport Co.
Calvin K. Hamilton, U.S. Atty., Kansas City, Mo., Manny H. Smith, I.C.C., Washington, D.C., for Interstate Commerce Commission.
John D. Wigger, Dept. of Justice, Washington, D.C., for United States.
Lawrence R. Brown, Stinson Mag, Thomson, McEvers Fizzell, Kansas City, Mo., for C.I. Whitten Transfer Co., Riss and Co., Inc., Hughes Transportation, Inc. and Tri-State Motor Transit.
Stephen P. Murphy, Kansas City, Mo., Rice, Carpenter Carraway, Washington, D.C., for Regular Common Carrier Conference of American Trucking Asscns., Inc., and Munition Carriers Conference, Inc.
Thomas E. James, James M. Doherty and Mert Starnes, James, Robinson, Felts Starnes, Austin, Tex., William M. Austin, James, McFarland Trimble, North Kansas City, Mo., William O. Turney and Robert Burk, Turney Turney and Robert Burk, Turney Turney, Washington, D.C., for Leonard Brothers Trucking Co., Inc. and Heavy Specialized Carriers Conference.
Edward Mullen, Kansas City Mo., Ed. White and Thomas Phemister, Chicago, Ill., for intervening Railroads.
Helliwell, Melrose DeWolf, Shelby Highsmith, Miami, Fla., for C H Transp. Co., Inc., Inc., J.H. Rose Truck Line, Inc., Leonard Brothers Trucking Co., Inc.
ORDER OF REMAND
This consolidated case upon submission to and upon examination by the undersigned three-judge court, and by Judge Hunter as a single-judge court, has led the Court to the conclusion that the Interstate Commerce Commission has inadvertently overlooked consideration of a regulation which it originally issued and which was later "adopted" by the Department of Transportation bearing directly on the rolling of certain explosives during the time involved in the instant consolidated case. (See, Title 49 — Transportation — Section 177.835 (Explosives) Subsection (b) "* * * nor shall any package or other container of explosives, except barrels or kegs, be rolled.")
In order to give the Commission opportunity to consider this regulation and its bearing, if any, on the instant matter (MC-C 5766), it is necessary to remand this cause to the Commission so that it may reconsider its findings and opinion.
Additionally, the Commission may find it desirable or helpful to take additional evidence or to make a further record in connection with several matters which counsel on appeal to this Court have contended either that there is an absence of evidence or that there is insufficient evidence to support the Commission's findings and conclusions. (See, for example: Contention there is no evidence of manual unloading of 500 and 750 pound bombs during pertinent times; contention of insufficient or unclear evidence regarding the manual loading of them; and Contention that there is no evidence that the current type of 500 and 750 pound bombs can be satisfactorily coated, or provided with shipping bands so as to permit the rolling of them without scratching or danger).
It is hereby ordered that this case be and it is hereby remanded to the Interstate Commerce Commission for rehearing and reconsideration.
It is so ordered.
FLOYD R. GIBSON Circuit Judge
WILLIAM R. COLLINSON District Judge
ELMO B. HUNTER District Judge Judge, Three-Judge Court
ELMO B. HUNTER District Judge Judge, Single-Judge Court