Auto Drive-Away Company of Hialeah, Inc. v. ICC, 22311.

• Decision Date: 10 May 1966
• Docket Number: No. 22311.,22311.
• Citation: 360 F.2d 446
• Parties: AUTO DRIVE-AWAY COMPANY OF HIALEAH, INC., Gertrude McKiernan and B. J. McKiernan, Appellants, v. INTERSTATE COMMERCE COMMISSION, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

360 F.2d 446 (1966)

AUTO DRIVE-AWAY COMPANY OF HIALEAH, INC., Gertrude McKiernan and B. J. McKiernan, Appellants, v. INTERSTATE COMMERCE COMMISSION, Appellee.

No. 22311.

United States Court of Appeals Fifth Circuit.

May 10, 1966.

Edmond J. Gong, Miami, Fla., for appellants.

Alfred E. Sapp, Asst. U. S. Atty., Miami, Fla., J. P. Proffitt, Jr., Reg. Counsel, I.C.C., Atlanta, Ga., for appellee.

Before TUTTLE, Chief Judge, WISDOM, Circuit Judge, and FISHER, District Judge.

WISDOM, Circuit Judge:

This appeal raises only the question of the sufficiency of the evidence to support the district court's summary judgment in favor of the Interstate Commerce Commission. We hold that the evidence was sufficient, and affirm the judgment below.

The Interstate Commerce Commission filed suit in the district court to enjoin the Auto Drive-Away Company of Hialeah, Inc., Gertrude McKiernan, President, and B. J. McKiernan, Vice-President, from continuing their automobile drive-away operation without ICC authorization. The Commission alleged that the appellants were operating as a "motor carrier" as defined by Section 203 (a) of the Interstate Commerce Act¹ and as such is subject to the provisions of the Act requiring a certificate of public convenience and necessity or a permit before engaging in business. The defendants moved for a stay of the proceedings pending the outcome of a Petition for Declaratory Order filed with the ICC by the national Auto Drive-Away Company and its franchised operators, including the defendant Auto Drive-Away of Hialeah. The defendants contended in their motion to stay that their Petition for Declaratory Order raised the same issues as this suit and that the doctrine of primary jurisdiction compelled a stay. The Commission, however, denied the petition even before the court's hearing on the motion. The ICC order noted that "the general issues involved have been the subject of a number of Commission and Court decisions to the effect that the concerned operations are subject to the provisions of the * * * Act." Still undaunted, the national company and its franchise holders, including the defendant, further petitioned the Commission for an investigation proceeding under Section 204(c) of the Act. Disregarding the new petition, the district court granted the Commission's motion for summary judgment. The decree, stayed pending this appeal, would enjoin further auto drive-away operations by the appellants until they have obtained proper ICC authorization.

The court found Auto Drive-Away of Hialeah to be a typical auto drive-away operation. The defendant corporation holds a franchise from Auto Drive-Away of Chicago, a company operating on a nation-wide scale. The Hialeah Company advertises in the Miami newspapers and in the Yellow Pages of the Miami telephone book that it is in the business of acting as "agents" of owners of vehicles who desire to have them moved to another point within the United States. The owner contracts with the defendant to procure the services of a driver. The defendant selects a driver from its pool and arranges a separate agreement between the owner and the driver. The driver agrees to pay ordinary expenses for the trip. The owner agrees to supply insurance and a small stipend for the driver's services. The driver is required before starting to make a deposit of an agreed sum of money with the drive-away corporation. Upon delivery of the car at the destination, the driver receives from the owner a refund of the sum deposited with the company. The defendant requests its shipper customers to return a card advising that the car has been delivered and reporting on the company's services. As its compensation for arranging the transportation, the defendant retains the deposit made by the driver, except for a percentage sent to the national office for general services. In effect, the owner pays the defendants a fee for arranging of transportation of his own car.

The defendants made no attempt to contradict these facts. They concede that the sole issue is the sufficiency of evidence to support the summary judgment. They do not dispute that the ICC affidavit, party admissions on file, and other materials together contain sufficient evidence to prove that their operation requires ICC authorization. See ICC v. Interstate Auto Shippers, Inc., S.D.N.Y.1963, 214 F.Supp. 473, aff'd per curiam, 2 Cir., 323 F.2d 367; ICC v. AAA Con Drivers Exchange, Inc., 2 Cir.1965, 340 F.2d 820. The defendants instead attack the admissibility of most of the materials on which the court based its judgment. They complain that the ICC investigator's affidavit does not clearly show his competence to testify and that unsworn exhibits accompanied his statement. These objections come too late: the defendants failed to object to the introduction or use of the affidavit and exhibits below. An affidavit that does not measure up to the standards of Rule 56(e)² is subject to a timely motion to strike. In the...