Inland Freight Lines v. United States

• Decision Date: 11 March 1953
• Docket Number: No. 4528.,4528.
• Citation: 202 F.2d 169
• Parties: INLAND FREIGHT LINES v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

202 F.2d 169 (1953)

INLAND FREIGHT LINES v. UNITED STATES.

No. 4528.

United States Court of Appeals Tenth Circuit.

February 10, 1953.

Rehearing Denied March 11, 1953.

Richard L. Bird, Jr., Salt Lake City, Utah (Dan S. Bushnell, Salt Lake City, Utah, was with him on the brief), for appellant.

George W. Howard, Washington, D. C. (Scott M. Matheson, U. S. Atty., and H. D. Lowry, Asst. U. S. Atty., Salt Lake City, Utah, were with him on the brief), for appellee.

Before PHILLIPS, Chief Judge, and BRATTON and PICKETT, Circuit Judges.

PICKETT, Circuit Judge.

This case is here for the second time. The defendant, Inland Freight Lines, as a common carrier by motor vehicle engaged in the transportation of property in interstate commerce, was charged with a violation of 49 U.S.C.A. § 322(g) by an information containing ten counts. On the first trial, the court submitted Counts II, VI, VII, IX and X to the jury and a verdict of guilty was returned on those counts. We reversed and remanded the case for a new trial solely upon the grounds that an instruction of the court erroneously advised the jury that negligence on the part of the company or failure on its part to check certain documents could be defined as knowingly and wilfully committing the unlawful act. Inland Freight Lines v. United States, 10 Cir., 191 F.2d 313. Upon retrial, there was a conviction on Counts VII, IX and X. This appeal is from a judgment and sentence upon that conviction.

The nature of the charge in each of the three counts is the same. It is alleged that the defendant corporation is an interstate common carrier for the transportation of property by motor vehicle over public highways and subject to the Interstate Commerce Commission motor carriers' safety regulations (49 CFR 190-197); that it employed drivers to operate motor vehicles engaged in interstate transportation; and that the defendant did aid, abet, counsel, command, induce and procure the drivers to knowingly and wilfully prepare and keep driver's logs which did not show accurately the driving time of the drivers.

The evidence offered at the second trial was substantially the same as that submitted at the first trial. It was referred to in the former opinion and we shall not restate it at length here. In substance, the evidence shows that the drivers named in the counts prepared and filed with the defendant logs of their driving time and also other documents referred to as trip reports. These documents were filed and kept as part of the defendant's records. The required I. C. C. reports were made from the logs filed by the drivers. The drivers were paid from the trip reports. There was a wide discrepancy between the drivers' logs and the trip reports, and the testimony of the drivers indicated that the drivers' logs were false.

The I. C. C. regulations require each driver to keep an accurate log of his driving time in a log book, the form of which is specified by the Commission (Form BMC 59). Every motor carrier subject to the regulations is instructed to require each driver to maintain a driver's daily log in duplicate, and to forward daily the original of that log to the home terminal address.¹ From these reports the carrier is required to make a monthly report of every instance during the calendar month in which a driver has been on duty or required to drive or operate a motor vehicle in excess of the hours prescribed by the regulations.

The defendant contends that the allegations in the information charge only that it aided and abetted the drivers in preparing false logs, and that there is a total lack of any evidence to sustain this charge. The same argument was made on the former appeal and we held that the evidence was sufficient to take the case to the jury under appropriate instructions of the court. This holding became the law of the case. Midland Valley R. Co. v. Jones, 10 Cir., 115 F.2d 508. It is now urged with considerable emphasis that on the former appeal we misconceived the charge against the defendant and decided the case, not upon the charge in the information, but under another provision of the statute which made it an offense for a carrier to knowingly and wilfully preserve false logs. There was no misconception of the questions presented on the former appeal. The identical questions were briefed and argued to the court as they are now. In addition, this question was specifically called to our attention on petition for rehearing. There are statements in the first opinion which, if taken out of context, indicate that the charge was that of preserving false logs rather than of aiding and abetting in their execution. Examination of the opinion, however, will show that this was only one of the circumstances considered, and we held that this, together with all the other evidence and circumstances in the case, warranted an inference of guilt as charged. The law established in the first decision does not bind us absolutely. We have the power to change our position in a subsequent review of the same case. Orderly judicial procedure, however, requires that we refuse to permit the relitigation of matters or issues previously determined except in unusual circumstances. Insurance Group Committee v. Denver & R. G. W. R. Co., 329 U.S. 607, 612, 67 S.Ct. 583, 91 L.Ed. 547; Wichita Royalty Co. v. City Nat. Bank, 306 U.S. 103, 107, 59 S.Ct. 420, 83 L.Ed. 515; Messenger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 56 L.Ed. 1152; Mayflower Hotel Stockholders Protective Committee v. Mayflower Hotel Corp., 89 U.S.App.D.C. 171, 193 F.2d 666, 669. No such unusual circumstances exist in this case.

Whatever misconception or confusion that existed in this...