Jack's Cookie Co. v. Florida R.R. & Public Utilities Com'n

• Decision Date: 10 August 1951
• Citation: 54 So.2d 695
• Court: Florida Supreme Court
• Parties: JACK'S COOKIE CO. v. FLORIDA RAILROAD & PUBLIC UTILITIES COMMISSION et al.

Page 695

54 So.2d 695

JACK'S COOKIE CO. v. FLORIDA RAILROAD & PUBLIC UTILITIES COMMISSION et al.

Supreme Court of Florida, Division A.

Aug. 10, 1951.

Rehearing Denied Oct. 18, 1951.

Mabry, Reaves, Carlton, Anderson, Fields & Ward, Tampa, for petitioner.

Lewis W. Petteway, Guyte P. McCord, Jr., and D. Fred McMullen, Tallahassee, for Florida Railroad & Public Utilities Commission.

A. Pickens Coles, Tampa, for Tamiami Trail Tours, Inc., Central Truck Lines, Inc., Great Southern Trucking Company, Hunt Truck Lines, John Morris Trucking Service, Inc., Lee Terminal & Warehouse Storage Co., Fogarty Bros., and Galloway Transfer & Storage Co., respondents.

THOMAS, Justice.

Although this matter comes to us on a petition to review only the third, and final order denying the petitioner's application for a certificate of public convenience and necessity, it seems to us fitting to digest two prior orders as well. In this way we can arrive at the chronology of the proceedings, the relevant facts and, more importantly, the course of reasoning the commission followed to a conclusion unfavorable to the petitioner.

Jack's Cookie Company makes cookies and distributes them in its own vans from Tampa to Miami and from Tampa to Jacksonville. Weathermaster, Inc., manufactures lightweight aluminum jalousies, or outside venetian blinds, in Miami. The former sought authority of the commission to transport as a private contract carrier the products of the latter. Thus, obviously, the petitioner would adquire pay loads for its trucks which would otherwise return empty to Tampa.

In the first order the commission recited this factual situation and found that transportation companies serving the area involved were 'ready, willing and able' to transport the products of Weathermaster, Inc., which were 'no less [sic] fragile than much of the property * * * now being moved safely by the certified carriers * * *.' From this order it appears that one of these carriers moved that the application be dismissed on the ground, among others, which were not stated, that there had been no compliance with Sec. 323.04, Florida Statutes 1941, F.S.A., because a sworn statement of the subject matter of a contract regulating the proposed operation had not been embodied in the application. The commission thought a letter from the manufacturer of the blinds to the petitioner confirming an understanding that a certain amount would be paid for transportation services was not sufficient to meet the requirement of the statute, (1)(d), that 'A sworn copy or statement of the subject matter of the contract' be specified. The commission concluded that the proposed operation would 'infringe upon public convenience and necessity of maintaining existing transportation systems and fostering fair distribution of traffic and would * * * have an adverse effect upon transportation as a whole within the territory involved,' hence, 'public convenience and necessity [did] not require the granting of the application.'

Upon motion of Jack's Cookie Company this order was vacated, and the matter was re-heard. This time the commission elaborated upon the facts to considerable extent. It now found that the jalousies were made in various sizes, from two to forty square feet to fit the openings of houses for which they were ordered by individual customers; also that in the petitioner's trucks there had been permanently installed rubber or felt lined racks to accommodate the blinds without the necessity of crating them. In this manner the blinds were separated from one another by material that gave them proper protection. The blinds themselves, so the commission remarked, had 'baked-on enamel and, therefore, a scratch requires a return of a blind to the factory for repainting.' The petitioner, stated the commission, makes regular trips so Weathermaster, Inc., is assured prompt delivery of jalousies to customers.

Continuing, the commission found that the manufacturer had tried to use established common carriers and that they at first had hauled the blinds without crating, then required that this be done. The commission here repeated the language of the first order that the blinds were 'no less [sic] fragile' than much freight being hauled safely by common carriers, but they now qualified this statement by observing that the jalousies were, however, possessed of 'certain peculiarities' distinguishing them from 'other types of fragile shipments' because they were composed of thin aluminum, of very light weight and 'they bend and scratch easily.' The commission then gave some very cogent reasons why the manufacturer should not be required to crate its products. For instance, the blinds being of varying sizes, made to order, this requirement would put upon the manufacturer the expense of having a separate crate made for each blind; a crate weighs from three to five times as much as the blind itself so the charge for transporting the crates would be more than for transporting the contents; also, 'The expense of crating is equal to the manufacturing cost of the blind' so the cost upon delivery to the carrier would be doubled.

The commission then observed that an officer of the manufacturing company had testified that if it became necessary to enclose the blinds in crates to meet the demands of the carriers, his company would be forced to discontinue selling to any customers have those who would call for the blinds at the factory. The commission next passed to the testimony of the protestants that they would accept the blinds if wrapped in heavy paper, but this proposition seems to have met with small favor and was discarded in this language: 'However, it appears that the other blinds being handled in such manner * * * are built of heavier material and are, therefore, not as fragile as the blinds of Weathermaster, Inc. Since this company has had to work out its transportation problem in another way with applicant, the regular route common carriers not having accepted its blinds wrapped in paper heretofore, it would now be unreasonable to deny their application for the purpose of requiring Weathermaster, Inc. to experiment with paper wrapping in the use of the common carriers.' (Italics supplied.) The commission then explored the field of operations by 'household goods carriers' and disposed of any suggestion that these carriers could be practicably used by pointing out that they did not operate on schedule, did not accept a load of less than 5,000 pounds to one destination, and so on.

Even so, the commission announced that it did not 'look with favor' upon certificates to companies distributing their own products and utlizing their equipment for return hauling of the property of others 'which ordinarily would be carried by common carriers' because such a policy 'would have a serious effect upon transportation facilities within...