Interstate Commerce Commission v. Davidson, 1464.

• Decision Date: 04 August 1937
• Docket Number: No. 1464.,1464.
• Citation: 20 F. Supp. 832
• Parties: INTERSTATE COMMERCE COMMISSION v. DAVIDSON.
• Court: U.S. District Court — District of Nebraska

20 F. Supp. 832

INTERSTATE COMMERCE COMMISSION v. DAVIDSON.

No. 1464.

District Court, D. Nebraska, Omaha Division.

August 4, 1937.

Joseph T. Votova, U. S. Dist. Atty., of Omaha, Neb., Augustine S. Mason and Jack Garrett Scott, both of Washington, D. C., for plaintiff.

Kelso A. Morgan, of Omaha, Neb., for defendant.

DONOHOE, District Judge.

By the bill of complaint in this case, the defendant is charged with being engaged in the transportation of passengers by motor vehicles in interstate commerce for compensation; that the defendant advertised for and solicited passengers for transportation by a motor vehicle for compensation over and upon the public highways between the city of Omaha, in the state of Nebraska, and the cities of Los Angeles and San Francisco in the state of California, and the city of Portland in the state of Oregon; that the defendant has failed to comply with the provisions of the Motor Carrier Act of 1935, and particularly section 222(b) thereof, title 49 U.S.C.A. § 322(b), in that, at the time of the said solicitation and transportation of passengers, there was not in force, and there is not now in force, with respect to the defendant, a certificate of public convenience and necessity issued by the Interstate Commerce Commission, authorizing such transportation and operation, and that at said times there was not on file with the Interstate Commerce Commission, and that there is not now on file, any application by the defendant for any certificate of public convenience and necessity, and that the operations and transportation by the defendant were and are without warrant or authority at law; that the defendant did not file with the Commission any tariff showing any rate, fare, or charge, or any evidence of concurrence in or acceptance of any rate, fare, or charge applicable, or by the defendant applied to such transportation of passengers. The prayer of the petition is for an injunction against the defendant, his agents, employees and representatives, restraining them from in any manner or by any device, directly or indirectly, transporting passengers by motor vehicle in interstate commerce over or upon the public highway for the general public for compensation, whether over regular or irregular routes, until such law has been complied with.

The defendant, by answer to the bill of complaint, in substance admits that he has not complied with the provisions of the Motor Carrier Act (15 U.S.C.A. § 77 c; 49 U.S.C.A. § 301 et seq.), but denies that he has violated the terms and provisions of said act, and in substance charges that his operations do not come within the intent or purview of such law.

The facts in the case have been agreed to by written stipulation. They may be summarized as follows: Defendant is a resident of Omaha, Neb., and is engaged in the business of buying and selling secondhand automobiles; that the automobiles are and were purchased in Omaha and vicinity; that there is a more desirable market for the sale of these secondhand automobiles in Los Angeles and San Francisco in the state of California, and Portland, in the state of Oregon, and at various other points in many other states; that, in order to avail himself of the advantages of such outside markets, the defendant finds it necessary to transport his automobiles to such places, and as a means of saving or reducing the cost of the transportation of such automobiles has devised a plan under which he has been operating, and threatens to continue to operate, by which he inserts want ads in the Omaha daily papers, soliciting passengers for transportation, of which the following are samples:

"Have new sedans to be delivered by reliable parties to Los Angeles. You pay only gas expenses. Warren Davidson, 2026 Farnam, Omaha."

"Will furnish transportation to California or Oregon in exchange for carpenter work. Ke 5496."

"Cars leaving all week for Portland and Seattle. Share expense basis. Sagner, 2026 Farnam, Ha 1488."

"Leaving for Portland and Los Angeles; late model car; share expenses. At 4617, 2060 Farnam."

"Dealer driving to Portland, Ore., Tuesday; new sedan; room for two; share expense. Ha 1488."

"Dealer wants careful driver, good references, to drive new Oldsmobile Sedan to San Francisco; share small expense; also three passengers. Warren Davidson, 2026 Farnam, Ha 1488."

"Dealer sending new car to San Francisco. Will take 3 to share expense. Warren Davidson Motor Sales, 2026 Farnam, Ha 1488."

"New cars leaving for California and Oregon. Need reliable drivers and passengers; small expense. Warren Davidson, 2026 Farnam, Ha 1488."

When parties appeared in response to this invitation, agreements were made with them whereby such persons agreed to deliver automobiles for the defendant at certain designated points, among which were Los Angeles and San Francisco, in the state of California and Portland, in the state of Oregon, and various other points in many other states. At the time of entering into the agreement, the person or persons intending to ride in the car that was to be delivered paid over to the defendant certain sums of money equal to the estimated expense for the purchase of gas and oil consumed on the journey. In other cases, when such sums of money were not paid to the defendant, the person or persons driving the automobile paid for the gas and oil, after it was delivered to them, at the filling stations on the route, and in such cases no money was paid to the...