National Trailer Convoy, Inc. v. United States

• Decision Date: 26 April 1965
• Docket Number: Civ. A. No. 5976.
• Citation: 240 F. Supp. 286
• Parties: NATIONAL TRAILER CONVOY, INC., Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants.
• Court: U.S. District Court — Northern District of Oklahoma

240 F. Supp. 286

NATIONAL TRAILER CONVOY, INC., Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants.

Civ. A. No. 5976.

United States District Court N. D. Oklahoma.

March 22, 1965.

Rehearing Denied April 26, 1965.

Harold G. Hernly, Harold G. Hernly, Jr., Washington, D. C., and Wrape & Hernly, Washington, D. C., of counsel, and Jack N. Hays and Gable, Gotwals, Hays, Rubin & Fox, Tulsa, Okl., of counsel, for plaintiff.

William H. Orrick, Jr., Asst. Atty. Gen., and John H. D. Wigger, Atty., Dept. of Justice, Washington, D. C., and John M. Imel, U. S. Atty., Tulsa, Okl., for defendant the United States.

Robert W. Ginnane, Gen. Counsel, and Thomas H. Ploss, Washington, D. C., for defendant Interstate Commerce Commission.

Ernie Adamson and F. H. Floyd, Washington, D. C., Robert W. Loser, Indianapolis, Ind., Martin E. Wyatt, Tulsa., Okl., for amici curiae on rehearing.

Before BREITENSTEIN, Circuit Judge, and DAUGHERTY and BARROW, District Judges.

BREITENSTEIN, Circuit Judge.

This action seeks to set aside a report and order of the Interstate Commerce Commission entered in its Docket No. MC-106398 (Sub-No. 167), National Trailer Convoy, Inc., Extension-Portable Buildings.¹ The Commission found that the certificate of National Trailer Convoy, Inc., plaintiff herein, did not authorize the transportation of commodities referred to as sectionalized homes and denied National's request for such authority.

National held various certificates issued by the Commission and granting the right to transport "trailers designed to be drawn by passenger automobiles." It applied for a certificate covering five items, viz.: shrimp boats (mobile kitchens or restaurants), egg factories (hen houses), coin operated laundries, motel units, and sectionalized homes. At the hearing and after the examination of its operating witnesses, National moved to dismiss the application on the ground that its existing certificate covered the commodities. The Hearing Examiner agreed and recommended dismissal of the application. Upon exceptions by two protestants the Commission affirmed except as to the sectionalized homes. National here complains that the Commission order is arbitrary and capricious and fails to follow Commission precedent on the interpretation of commodity descriptions.

The Hearing Examiner described the commodity in dispute thus:

"A portable home which is moved in two units, each completely finished, one containing living room and bedroom and the other containing kitchen, bath, and other appurtenances. These structures are built separately and move on two separate undercarriages equipped with hitch balls. When they arrive at the site they are merely placed together, side by side, and attached to form a completed house approximately 42 by 20 feet. The undercarriages are removed and returned to the shipper."

In Illinois Trailer Convoy, Inc., Extension, 47 M.C.C. 315, 317, the Commission said that it used the term "trailers designed to be drawn by passenger automobiles" to distinguish between so-called house trailers and commercial trailers, that the term is merely descriptive of the articles to be transported, and that it does not require the motive power to be furnished by a passenger automobile. In the parlance of the industry the house trailer category is referred to as "hitch ball" and the commercial as "fifth wheel" because of the method used in connecting the trailer to the motive power.

In the instant case the Commission said that the primary problem was whether the commodities could be properly described as trailers. It held that the shrimp boats, egg factories, coinoperated laundries, and motel units had the same substantial characteristics as house trailers and were within the category of "trailers designed to be drawn by passenger automobiles." As to the sectionalized homes the Commission pointed out that they were built in two sections which were joined together to make a house permanently situated at the point of destination. The Commission held that they did not possess the determinative characteristics of house trailers because they were not single units or mobile units and that they were not within National's operating authority.

The Commission has done no more than construe or interpret a certificate granted by it. The rule is that the interpretation or construction by the Commission of a certificate issued by it will be overturned by the courts only if clearly erroneous.²

In substance the argument of National is that the description "trailers designed to be drawn by passenger automobiles" is a generic term covering all hitch ball type trailers. The difficulty is that the phrase describes a class of trailers. To be within it the commodity must be a trailer.

The Commission has differentiated between shrimp boats, egg factories, coinoperated laundries, and motel units on the one hand, all of which are single units and retain mobility after delivery, and sectionalized homes, on the other hand, which are not single units and which are permanently located after delivery. The commodities in the first group are held to be trailers and those in the second group are not.

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