Professional Driver Services, Inc. v. ICC, Civ. A. No. 7053.

• Decision Date: 08 March 1974
• Docket Number: Civ. A. No. 7053.
• Citation: 376 F. Supp. 536
• Parties: PROFESSIONAL DRIVER SERVICES, INC., Plaintiff, v. INTERSTATE COMMERCE COMMISSION and United States of America, Defendants.
• Court: U.S. District Court — Middle District of Tennessee

376 F. Supp. 536

PROFESSIONAL DRIVER SERVICES, INC., Plaintiff, v. INTERSTATE COMMERCE COMMISSION and United States of America, Defendants.

Civ. A. No. 7053.

United States District Court, M. D. Tennessee, Nashville Division.

March 8, 1974.

Maxwell A. Howell, Washington, D. C., Walter Harwood, Robert L. Baker, Nashville, Tenn., for plaintiff.

James F. Tao, James K. Kurth, I. C. C., Washington, D. C., Charles H. Anderson, U. S. Atty., Nashville, Tenn., for defendants.

James Clarence Evans, Nashville, Tenn., Albert F. Beasley, Washington, D. C., for intervenors Dallas & Mavis Forwarding Co., Dealers Transit, Inc., Insured Transporters, Inc., Kenosha Auto Transport Corp. and Howard Sober, Inc.

James Clarence Evans, Nashville, Tenn., K. Edward Wolcott, Atlanta, Ga., for intervenor Motor Convoy, Inc.

James Clarence Evans, Nashville, Tenn., Eugene C. Ewald, Detroit, Mich., for intervenors Automobile Transport, Inc. and National Automobile Transporters Assn.

Before PHILLIPS, Circuit Judge, GRAY, Chief Judge, and MORTON, District Judge.

PER CURIAM.

This is an action to review an order of the Interstate Commerce Commission (ICC) entered August 9, 1972, in the case of Professional Driver Services, Inc., Common Carrier Application, No. MC-135812. The ICC's order denied plaintiff's motion to dismiss its application for a certificate of convenience and necessity filed pursuant to 49 U.S.C. § 307, and denied the application.

Plaintiff is a Tennessee corporation organized in 1969. Its president and controlling stockholder is Boyd Adams, who individually, and subsequently in the name of Drive-U-Service, Inc., has held authority to perform various classifications of automobile driveaway service between the Nashville area and points in the United States for approximately eight years. Professional Driver Services, Inc. (and Boyd Adams individually) has been performing driveaway transportation of trucks, chassis and tractors for more than ten years. Plaintiff has never been certified by the ICC, and in 1971 was notified that its operation was thereby in violation of the Interstate Commerce Act.

By application filed July 6, 1971, plaintiff, Professional Driver Services, Inc. of Nashville, Tennessee, sought a certificate of public convenience and necessity authorizing operation as a common carrier by motor vehicle, in interstate and foreign commerce, over irregular routes, of trucks, tractors, semitrailers, and tractor trailer units, in driveaway service, between Nashville and Knoxville, Tennessee, and Mobile, Alabama, on the one hand, and, on the other, points in the United States (excluding Alaska and Hawaii) restricted against the performance of initial movements to Nashville, Knoxville, and Mobile. By motion contemporaneously filed, applicant sought dismissal of the application on the ground that the proposed service is not such as to require authority from the Commission.

The Commission held, in substance, (1) that the applicant was performing for-hire-carriage and therefore required a certificate of convenience and necessity; (2) that because the applicant had been acting without such certificate it was unfit to perform the sought service; and (3) that the applicant did not show that public convenience and necessity required the proposed operation.

Professional Driver Services employs drivers qualified and licensed to operate heavy and light trucks and furnishes these drivers to customers needing to transport a particular unit or units of equipment (1) from yards adjacent to manufacturers of the equipment to any of the three involved cities (which movements applicant believes to be secondary); (2) between equipment dealers in any of the cities and other equipment dealers; (3) between equipment dealers in the cities and body modification fabricators; and (4) miscellaneous movements including those from dealers to customers, or for equipment owners to points they wish equipment transported.

Plaintiff's customers are primarily heavy truck retailers, many of whom at one time employed their own drivers. However, for economic and other reasons, this practice was discontinued and the plaintiff's services utilized. Trucks are transported under their own power and are not placed on flatbeds or other types of trailers.

Plaintiff employs drivers in accordance with its own qualification criteria, and drivers are subject to its supervision and discipline. Drivers are paid on a mileage rate, and plaintiff makes the withholding deductions for federal income tax and social security payments. Plaintiff bears the expense of transporting drivers to pickup locations by bus, or at bus fare rates, but the customer may elect to pay the difference in fares and have a driver brought in by quicker modes of travel. The driver pays for his own meals with plaintiff paying for overnight accommodations except for layovers caused by customer delays. The customer pays for gasoline, toll charges, insurance on trucks being transported, and runs the risk of damage to a truck while en route. The customer has control of the driver's duties, and may issue instructions to be followed on the particular job; the customer also may refuse to accept a driver furnished by plaintiff. Normally, a particular driver works for a customer for only a few hours up to two or three days; occasionally, one driver will be retained by a customer for as long as a week or two.

A certificate of public convenience and necessity issued by the ICC is a prerequisite to operation as a common carrier by motor vehicle. 49 U.S.C. §§ 306(a)(1), 307(a). A common carrier by motor vehicle is defined by 49 U.S.C. § 303(a)(14) as being "any person which holds itself out to the general public to engage in the transportation by motor vehicle in interstate or foreign commerce of passengers or property or any class or classes thereof for compensation, whether over regular or irregular routes . . . ." A contract carrier by motor vehicle is defined in 49 U.S.C. § 303(a)(15).

In essence, plaintiff contends that its driveaway service constitutes private carriage as defined by 49 U.S.C. § 303(a)(17) and is therefore not subject to regulation. However, this section was designed explicitly to authorize the ICC to eliminate transportation which, though carried on in the guise of private carriage, was in effect for-hire carriage, and thus might lawfully be carried on only by an authorized common or contract carrier. Red Ball Motor Freight v. Shannon, 377 U.S. 311, 84 S.Ct. 1260, 12 L.Ed.2d 341 (1964).

The ICC makes two primary inquiries which must be satisfied before an operation in question is held to constitute private carriage: (1) that no person other than the owner had "any right to control, direct and dominate" the transportation; and (2) that "no person before the Commission was in substance engaged in the business of . . . transportation of property . . . for hire." United States v. Drum, 368 U.S. 370, 381, 82 S.Ct. 408, 413, 7 L.Ed.2d 360 (1962). In other words, has the shipper significantly shouldered the burdens of transportation?

The Supreme Court has characterized driveaway service as a "method of transportation . . . performed by individual driving of the vehicle under its own power, by driving one vehicle under its own power and towing a second vehicle attached to the first, or by driving under its own power a vehicle upon which another vehicle is partially or wholly mounted." Alton R. Co. v. United States, 315 U.S. 15, 17, 62 S. Ct. 432, 434, 86 L.Ed. 586 (1942).

The driveaway service arrangement for new automobiles has been the subject of considerable litigation under various factual allegations dealing with the aspect of control. Orleman v. United States, 219 F.Supp. 945 (E.D.Mich. 1963) (three-judge court); ICC v. AAA Con Drivers Exchange, Inc., 340 F.2d 820 (2d Cir. 1965); Spencer v. United States, 236 F.Supp. 230 (N.D.Ohio 1964); Studna v. United States, 225 F. Supp. 973 (W.D.Mo.1964), and the numerous cases cited therein. The operators in each of these cases furnished drivers under factual circumstances similar to those in the instant case, and each was held subject to the Act. The only...