Auto Drive-Away Company of Hialeah, Inc. v. ICC, No. 22311.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtTUTTLE, , WISDOM, Circuit , and FISHER
Citation360 F.2d 446
PartiesAUTO DRIVE-AWAY COMPANY OF HIALEAH, INC., Gertrude McKiernan and B. J. McKiernan, Appellants, v. INTERSTATE COMMERCE COMMISSION, Appellee.
Docket NumberNo. 22311.
Decision Date10 May 1966

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.


360 F.2d 447

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

360 F.2d 448
(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...

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61 practice notes
  • Peralta v. Martinez, No. 2786
    • United States
    • New Mexico Court of Appeals of New Mexico
    • April 12, 1977
    ...(2) by making an objection. Associated Press v. Cook, 513 F.2d 1300 (10th Cir. 1975); Auto Drive-Away Company of Hialeah, Inc. v. I.C.C., 360 F.2d 446 (5th Cir. 1966); Ernst Seidelman Corporation v. Mollison, 10 F.R.D. 426 (D.Ohio 1950); Klingman v. National Indemnity Company, 317 F.2d 850 ......
  • Castiglione v. Johns Hopkins Hosp., No. 123
    • United States
    • Court of Special Appeals of Maryland
    • December 3, 1986
    ...442, 445, cert. denied, 393 U.S. 935, 89 S.Ct. 295, 21 L.Ed.2d 271 (10th Cir.1968); Auto Drive-Away Company of Hialeah, Inc. v. I.C.C., 360 F.2d 446 (5th Cir.1966); 10A Wright, Miller & Kane, Federal Practice and Procedure, § 2738 at 507-08 (1983) and cases cited therein. [517 A.2d 792] III......
  • In re Associated Bicycle Service, Inc., Bankruptcy No. 88-61426
    • United States
    • United States Bankruptcy Courts. Seventh Circuit. U.S. Bankruptcy Court — Northern District of Indiana
    • September 25, 1990
    ...Electric Credit Corp., 400 F.2d 442 (10th Cir.1968) cert. den. 393 U.S. 935, 89 S.Ct. 295, 21 L.Ed.2d 271; Auto Drive-Way Co. v. I.C.C., 360 F.2d 446 (5th Cir.1966); Klingman v. National Indemnity Co., 317 F.2d 850 (7th Cir.1963). In the absence of such a motion or objection an affidavit no......
  • Eguia v. Tompkins, No. 84-2451
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 8, 1985
    ...us to consider it in assessing whether summary judgment was properly granted. See Auto Drive-Away Co. v. Interstate Commerce Commission, 360 F.2d 446, 449 (5th 15 We need not consider whether the notice the county provided was itemized as required by article 3912e. Mr. Eguia should have put......
  • Request a trial to view additional results
61 cases
  • Peralta v. Martinez, No. 2786
    • United States
    • New Mexico Court of Appeals of New Mexico
    • April 12, 1977
    ...(2) by making an objection. Associated Press v. Cook, 513 F.2d 1300 (10th Cir. 1975); Auto Drive-Away Company of Hialeah, Inc. v. I.C.C., 360 F.2d 446 (5th Cir. 1966); Ernst Seidelman Corporation v. Mollison, 10 F.R.D. 426 (D.Ohio 1950); Klingman v. National Indemnity Company, 317 F.2d 850 ......
  • Castiglione v. Johns Hopkins Hosp., No. 123
    • United States
    • Court of Special Appeals of Maryland
    • December 3, 1986
    ...442, 445, cert. denied, 393 U.S. 935, 89 S.Ct. 295, 21 L.Ed.2d 271 (10th Cir.1968); Auto Drive-Away Company of Hialeah, Inc. v. I.C.C., 360 F.2d 446 (5th Cir.1966); 10A Wright, Miller & Kane, Federal Practice and Procedure, § 2738 at 507-08 (1983) and cases cited therein. [517 A.2d 792] III......
  • In re Associated Bicycle Service, Inc., Bankruptcy No. 88-61426
    • United States
    • United States Bankruptcy Courts. Seventh Circuit. U.S. Bankruptcy Court — Northern District of Indiana
    • September 25, 1990
    ...Electric Credit Corp., 400 F.2d 442 (10th Cir.1968) cert. den. 393 U.S. 935, 89 S.Ct. 295, 21 L.Ed.2d 271; Auto Drive-Way Co. v. I.C.C., 360 F.2d 446 (5th Cir.1966); Klingman v. National Indemnity Co., 317 F.2d 850 (7th Cir.1963). In the absence of such a motion or objection an affidavit no......
  • Eguia v. Tompkins, No. 84-2451
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 8, 1985
    ...us to consider it in assessing whether summary judgment was properly granted. See Auto Drive-Away Co. v. Interstate Commerce Commission, 360 F.2d 446, 449 (5th 15 We need not consider whether the notice the county provided was itemized as required by article 3912e. Mr. Eguia should have put......
  • Request a trial to view additional results

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