Maag v. Public Service Commission

• Decision Date: 07 December 1964
• Docket Number: No. 23995,23995
• Citation: 384 S.W.2d 801
• Parties: Leo MAAG, Warren Faris, J. T. Rutledge, Ezra Sehlke and Edwin Sehlke, Individually, and Doing Business As Chariton County Contractors, Appellants, v. PUBLIC SERVICE COMMISSION of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 801

384 S.W.2d 801

Leo MAAG, Warren Faris, J. T. Rutledge, Ezra Sehlke and

Edwin Sehlke, Individually, and Doing Business As

Chariton County Contractors, Appellants, v. PUBLIC SERVICE COMMISSION of Missouri, Respondent.

No. 23995.

Kansas City Court of Appeals, Missouri.

Dec. 7, 1964.

Hulen & Hulen, Moberly, for appellants.

Thomas J. Downey, Asst. Counsel, Jefferson City, for respondent.

BROADDUS, Presiding Judge.

By an Order dated October 11, 1961, Hall & Riley Quarries & Construction Company, Booneville, Missouri; Land Construction Company, St. Joseph, Missouri; Chariton County Contractors, Salisbury, Missouri; Leo Maag, Salisbury, Missouri; Warren Faris, Keytesville, Missouri; J. T. Rutledge, Salisbury, Missouri; and Ezra Sehlke and Edwin Sehlke, doing business as Sehlke, Keytesville, Missouri, were cited to appear before the Public Service Commission on October 23, 1961, to answer charges that they have provided or procured, aided or abetted in transportation services at rates other than those named in tariff schedules lawfully on file with the Commission; have performed for-hire transportation service in vehicles to which have not been affixed annual license required in Section 390.136, RSMo 1959, V.A.M.S.

On October 23, 1961, a hearing was held and on March 12, 1962, the Commission issued its Report and 'Ordered: That Leo Maag, Warren Faris, J. T. Rutledge and Ezra Sehlke, doing business as Chariton County Contractors, be and they are hereby ordered to cease and desist in providing transportation service such as found by the Commission in this case to constitute transportation for compensation.'

Thereafter, on April 16, 1962, a writ of certiorari was duly issued to the Public Service Commission by the Circuit Court of Cole County, and a return to said writ was made. By agreement of the parties the cause was submitted to the Court on the Record. Thereafter, on September 23, 1962, the Court affirmed the order of the Commission and this appeal followed.

An examination of the transcript discloses that the Commission's Finding constitutes a fair statement of the facts and we adopt it. It is as follows:

'Land Construction Company, which will frequently be referred to herein as the Contractor, was the successful bidder on a Missouri State Highway Commission project calling for the paving of 8.593 miles of U. S. Highway 65 in Carroll County between Carrollton and the Missouri River with 24-foot asphaltic concrete, designated as Project Rt. 65, Sec. 17(2). Bids were received on July 27, 1961, and the award was made on August 8, 1961. Approximately 30,000 tons of crushed stone are required to complete the project.

'Hall and Riley Quarries & Construction Company, which will frequently be referred to herein as the Quarry Company, is engaged in the business of producing and selling aggregate used in highway construction. It operates a quarry approximately six miles south of Marshall, Missouri, at which stone is produced which meets the Highway Department specifications for asphaltic concrete.

'The following respondents own and operate one or more dump trucks and are the holders of certificates of convenience and necessity issued by the Commission authorizing the transportation of bulk commodities in dump trucks as common carriers between points in Missouri, including Carroll County: Leo Maag, Certificate No. T-13,590; Warren Faris, Certificate No. T-604; J. T. Rutledge, Certificate No. T-13,398; and Ezra and Edwin Sehlke, d/b/a Sehlke, Certificate No. T-13,591. Each of these trucker respondents has on file with the Commission the necessary insurance and tariff schedule and is fully qualified to operate as a common carrier over the highways by motor vehicle. The orders granting certificates to these respondents relate that the applicants for such authority have been engaged in the business of transporting bulk commodities in dump trucks for several years.

'Chariton County Contractors is the fictitious name used by a partnership consisting of Leo Maag, J. T. Rutledge, Warren Faris and W. N. (Ezra) Sehlke, and will frequently be referred to herein as the Partnership. An application for registration of the fictitious name was filed with the Secretary of State's Office on September 11, 1961, and shows percentage of ownership as follows: Leo Maag, 40 percent; J. T. Rutledge, 30 percent; Warren Faris, 10 percent and N. N. Sehlke, 20 percent. Application was also made by the Partnership on September 11, 1961, to the State Department of Revenue for a code number used by retailers in paying sales or use tax. The application shows the kind of business to be 'trucking' and indicates the business was commenced on September 11, 1961.

'On August 5, 1961, a letter signed by W. E. Herzog, Vice-President of the Contractor, was addressed to the Partnership Attention Mr. Maag, confirming acceptance of a quotation of $2,30 a ton for stone to be used on the project designated as Rt. 65, Sec. 17(2), Carroll County. On the lower left-hand side of the letter, in a space provided for that purpose, was the acceptance of the terms of the quotation signed on behalf of the Partnership by Leo Maag. The letter agreement reads as follows:

'This is to confirm our acceptance of your quotation of $2.30 per ton for stone to be used on the subject project, delivered to our plant set-up site within a distance of one mile north of the Missouri River Bridge, on Route 65, Carroll County, Missouri.

'Our accpetance of your quotation is based on your committment that adequate trucks will be available to haul the stone from the Hall & Riley Quarries and Construction Company Quarries located approximately six miles south of Marshall, Missouri, at a rate which may possibly require 1,000 tons per day. (Approx. 30,000 T. will be required.)

'Further, your quotation will include all Insurance for both Payrolls and Liability. We will expect Certificate of your Liability Insurance to be sent to us for our files. We will pay you at any time you present us with a statement covering materials delivered to our stockpile area, and approved by the Missouri State Highway Commission, and we would suggest the billing be made the first of each month, which we will pay by the tenth. However, if payment is desired more frequently, we will expect to pay accordingly.

'The above acceptance of your quotation is based on a $1.20 per ton price, and $1,10 per ton haul price. The acceptance is also based on the fact that the work on the project will be awarded to us by the Missouri State Highway Commission. As of this date, the work has not been awarded.

'Please indicate your acceptance by signing the original of this letter, and returning it to us for your files.'

'The letter indicates that a copy was sent to the Quarry Company, attention Mr. D. L. Riley. The original of the letter was in the files of the Contractor and the duplicate was in the possession of Mr. Maag.

'On August 8, 1961, a letter signed for the Partnership by Leo Maag was addressed to the Quarry Company, attention Mr. D. L. Riley, confirming the acceptance of a quotation of $1.20 a ton for the stone to be used on Rt. 65, Sec. 17(2), Carroll County, Missouri. The letter reads as follows:

'This is to confirm our acceptance of your quotation of $1.20 per ton stone price, to be used on Rt. 65 Sec. 17(2), Carroll County, Missouri.

'Our acceptance is based on your committment to supply approximately 1,000 tons per day or a total of approximately 30,000 tons.

We suggest you mail us a statement on the first of each month for the material we have received and we will pay by the fifteenth.

'This acceptance is also based on the fact that the work on this project will be awarded to Land Construction Co., by the Missouri State Highway Commission. As of this date, the work has not been awarded.

'Please indicate your acceptance by signing the original of this letter and returning it to us for our files.'

'On the lower left-hand side, in a space provided for that purpose, was the acceptance on behalf of the Quarry Company signed by D. L. Riley. The letter indicated that a copy was sent to the Contractor, attention Mr. W. E. Herzog, Vic-President.

'Delivery of the stone under the agreed terms began on September 11, 1961. Under date of September 30, 1961, the Contractor was billed by the Partnership for 4,473.05 tons of rock at $2.30 a ton, or $10,288.02 plus $205.76 state sales tax for a total amount of $10,493.78. This bill was paid on October 7, 1961.

'A check payable to the Quarry Company and drawn on the Partnership account by Leo Maag, in the amount of $5,376.66, was issued on October 9, 1961 (Resp's. Ex. D), and a receipted invoice showing that the above amount represented payment in full for 4,473.05 tons of rock at $1.20 a ton was issued by the Quarry Company on October 12, 1961. The check was deposited in the account of the Quarry Company in the Kemper-State Bank, Booneville, Missouri, on October 18, 1961.

'The quarry at which the stone was produced is located approximately six miles south of Marshall, or 28 miles from the site at which the stone was stockpiled. Transportation of the stone was by dump trucks. The Partnership owns no motor vehicles. Of the vehicles used in performing the transportation, four are owned by Leo Maag, three by J. T. Rutledge, one by Warren Faris and two by Ezra Sehlke. These vehicles are not leased to the Partnership nor are they in any way identified as being operated by the Partnership. Each of the vehicles has the name and address of its owner and his P. S. C. certificate number painted on its side, although there is some evidence that for some or all of the hauls the certificate number was taped over. Annual license stickers were not affixed to the vehicles.

'In transportation performed for account of the Partnership, each of the individual truck owners pays his own driver, including social security and workmen's compensation insurance, and all...