Mooney v. Tuckerman

• Decision Date: 17 February 1929
• Docket Number: No. 770.,770.
• Citation: 144 A. 891
• Parties: MOONEY v. TUCKERMAN.
• Court: Rhode Island Supreme Court

144 A. 891

MOONEY

v. TUCKERMAN.

No. 770.

Supreme Court of Rhode Island.

Feb. 17, 1929.

Appeal from Superior Court, Washington County; Arthur P. Sumner, Judge.

Suit by Flora C. Mooney against N. F. Tuckerman. From a decree for complainant, defendant appeals. Reversed and remanded.

Clarence E. Roche, of Westerly, for appellant.

Herbert W. Rathbun, of Westerly, for appellee.

BARROWS, J. Prior to 1922 an act of the General Assembly existed relative to motor vehicles and their operation on the highways of this state. This act, as modified, in General Laws 1923, c. 98, comprehensively defined motor vehicles and required their registration by the state board of public roads. In 1921 respondent was the operator of a garage and owner of a Reo truck and bus. He had complied with all registration requirements of existing law and continued after 1923 to comply with chapter 98. He made a contract with certain men who worked at the Bradford mill in Westerly by which he agreed to take them each day from his garage in Westerly to the millyard in the morning and to bring them back from the millyard at night. They paid him a fixed price per week arranged in advance. He neither discharged, solicited, nor picked up passengers en route and the same group of men continued to be carried on each trip until respondent was enjoined in 1926.

In 1922 an act was passed which now appears as General Laws 1923, c. 254, entitled "Of public service motor vehicles operating over fixed routes." In this act section 1 defines a "public service motor vehicle" as including all motor vehicles defined in chapter 98 which are "used for the transportation of passengers for hire." It then proceeds to define "jitney," a word not found in chapter 98. "The term 'jitney,' shall include any motor bus or other public service motor vehicle operated in whole or in part upon any street or highway in such manner as to afford a means of transportation similar to that afforded by a street railway company, by indiscriminately receiving or discharging passengers; or running on a regular route or over any portion thereof; or between fixed termini." Section 2 provides that any carrier falling within the terms of section 1 is a "common carrier" and subject, as such, to the control of the Public Utilities Commission as to "routes, fares, speed, schedules, continuity of service, and the convenience and safety of passengers and the public." Section 3 forbids the operation of a jitney until the owner shall have obtained from the Public Utilities Commission a certificate specifying the route proposed to be traversed, the number of passengers to be taken at one time, the service to be furnished, and that "public convenience and necessity require its operation over such route." Then follow other sections relating to those who may be granted certificates; the proceedings relative to hearings prior to such granting including the right of any city or town through which the route passes to participate therein and to ask for a modification of a certificate already granted. The Utilities Commission is given control of the number of passengers to be carried, operation, safety, and sanitary conditions, and provision is made for giving of a bond at a specified sum per passenger and fixing a penalty for violation of the statute.

In 1925, complainant obtained a certificate of necessity and convenience under chapter 254 to operate a jitney between Westerly and Bradford. Respondent, asserting that chapter 254 did not apply to his carriage of passengers, gave no heed to its requirements. Complainant filed this bill seeking to enjoin respondent from carrying the workmen above mentioned. After hearing on an agreed statement of facts, the superior court in the decree granted an injunction restraining respondent from further operating his motor vehicles. From this decree the case is here on appeal.

At the hearing in this court counsel for the Rhode Island Coach Lines, Inc., asserting that since the hearing in the superior court it had acquired all rights and interest in complainant's certificate of convenience and necessity and that complainant had no further interest in the prosecution of the case, asked that said coach lines be substituted as complainant. Respondent was willing to assent thereto. We expressly reserved decision on this motion. We doubt the propriety at this stage of the proceedings of such substitution and decline to grant the motion. Respondent, however, having been enjoined from further carriage of those with whom he contracted, is entitled to have his rights determined, since nothing on the record indicates that complainant has withdrawn the proceedings or that the injunction against respondent has been vacated.

The vital question is whether respondent was operating in violation of chapter 254. Plainly respondent was not furnishing transportation similar to that afforded by a street railroad company by indiscriminately receiving or discharging passengers. Complainant urges that, because respondent was operating over a regular route and between fixed termini, compliance with chapter 254 was required. We find nothing in the statement of facts to show operation over a regular route. Travel between different villages in Westerly by no means requires operation over a regular route, unless there be but one route possible, and of this we have no evidence.

It is true that in some respects similar to street railway service respondent operated between fixed termini, viz. his garage and Bradford millyard. It must be admitted that, if he indiscriminately received or discharged passengers en route, or at either end thereof, or held himself out to do so, he would be subject to chapter 254; but he asserts that he is engaged in business as a private carrier and is not offering service available to the public as in the case of a common carrier. Tracy v. Grand Concourse Service Co., 199 App. Div. 348, 192 N. Y. S. 88; McGregor v. Gill, 114 Tenn. 521, 86 S. W. 318, 108 Am. St. Rep. 919. To this complainant replies that the terms of the statute make any one who operates a motor vehicle carrying passengers for hire a common carrier and, as such, subject to control of the Utilities Commission, irrespective of the common-law rules by which to test "common" as distinguished from "private" carriage.

The type of statute before us is of recent adoption in numerous states. It came with the development of the so-called jitney business as a competitor with street railways. A jitney is a "motor vehicle that carries passengers for a small fare." Funk & Wagnalls, 623. The statutes require certificates of public convenience and necessity. Berry on Automobiles (5th Ed.) § 1745 et seq. In California, Michigan, West Virginia, and Nevada, jitneys are included which travel "between fixed termini" as in Rhode Island. In various states a literal construction of the statute would include all jitneys carrying passengers for hire over public streets and some states have so construed the statutes. Frost & Frost Trucking Co. v. Railroad Commission of Cal., 197 Cal. 230, 240 P. 26, reversed in 271 U. S. 583, 46 S., Ct. 605, 70 L. Ed. 1101, 47 A. L. R. 457; Public Service Com. v. Fox, 96 Misc. Rep. 283, 160 N. Y. S. 59; Ft. Lee Transportation Co. v. Edgewater, 99 N. J. Eq. 850, 133 A. 424. Cf. Terminal Taxicab Co. v. Kutz, 241 U. S. 252...