State v. Rock Island Motor Transit Co.

Decision Date27 December 1940
Docket NumberNo. 32739.,No. 32741.,No. 32740.,No. 32753.,No. 32790.,32739.,32740.,32741.,32753.,32790.
Citation295 N.W. 519,209 Minn. 105
CourtMinnesota Supreme Court

Appeals from District Court, Ramsey County; Hugo Hanft, Judge.

Proceeding on an application by the Rock Island Motor Transit Company to the Warehouse and Railroad Commission of Minnesota for a permit as an intrastate contract carrier of freight by motor transportation, opposed by the State of Minnesota and others. From a judgment, setting aside the commission's order denying a permit, and an order denying a motion in the alternative for amended findings or new trial, the objectors and the commission appeal. On respondent's motion to dismiss all the appeals except those of the state and the commission.

Motion granted as to certain appeals and denied as to others, and judgment reversed.

J. A. A. Burnquist, Atty. Gen., and Geo. T. Simpson, Asst. Atty. Gen., for appellants State and Railroad and Warehouse Commission.

Stinchfield, Mackall, Crounse & Moore, of Minneapolis, for appellants Regulated Motor Transp. Ass'n, Raymond Bros. Motor Transp., Inc., Steller Transp. Co., and Witte Transp. Co.

Jackson & Yackel, of St. Paul, for appellant Murphy Motor Freight Lines, Inc.

George L. Siegel, of St. Paul, for appellant Brotherhood of Railroad Trainmen.

O'Brien, Horn & Stringer, of St. Paul, for respondent.

PETERSON, Justice.

The question for decision is whether or not respondent is entitled to a "permit" as a contract carrier by motor transportation under L.1933, c. 170. The statute has been amended in respects not here material. 3 Mason Minn.St.1940 Supp. §§ 5015-20 to 5015-44. The Railroad and Warehouse Commission denied the permit and on appeal the district court reversed the commission.

Respondent is an Illinois corporation the stock of which is wholly owned by the trustees in bankruptcy of the Chicago, Rock Island and Pacific Railway Company. The bankruptcy proceedings of the railroad are pending in the United States District Court for the Northern District of Illinois, Eastern Division. For convenience we shall refer to the trustees as the railroad.

The railroad is a common carrier by railroad of passengers and freight with lines, among others, extending from Minneapolis and St. Paul, Minnesota, to Des Moines, Iowa.

The bankruptcy court on the railroad's petition authorized it to enter the field of motor transportation between the points mentioned. Acting under the authorization, the railroad acquired the stock ownership of respondent, which operates as an interstate common carrier of freight by motor transportation between said points. Upon such stock acquisition one of the trustees in bankruptcy and the secretary-treasurer of the railroad became the president and the secretary-treasurer, respectively, of respondent.

After the railroad acquired the ownership of its stock, respondent continued to be, as it had been, an interstate common carrier of freight by motor vehicle over public highways under certificate of public convenience and necessity issued by the Interstate Commerce Commission under the Federal Motor Carrier Act of 1935, 49 U.S.C.A. §§ 301-327.

Thereafter respondent applied to the state commission for a permit as an intrastate contract carrier of freight by motor transportation over public highways paralleling the railroad's lines between Minneapolis and Gordonville, Minnesota, for the purpose of serving all cities, villages or places served by the railroad between said points.

The commission, being in doubt as to the propriety of issuing a permit, ordered a hearing. The state of Minnesota, the Regulated Motor Transportation Association, the Brotherhood of Railroad Trainmen, and numerous carriers by motor transportation over public highways, opposed the application. The commission conducted an extensive hearing in which it took much evidence.

The respondent's proposed plan of operation was under a contract and arrangement with the railroad. The contract was to become effective when and if a permit was granted and was to continue only so long as such permit, or a renewal thereof, remained in force.

The contract, so far as here material, provided that respondent was to transport in its trucks over the public highways with reasonable dispatch and care for the railroad such less than carload lots of freight as the railroad might tender. For such transportation the railroad was to pay respondent the minimum rates prescribed by the commission monthly on or before the 10th day of the succeeding month. The agreed transportation was to be confined to property received by the railroad at a depot, station or siding. Delivery thereof was to be at a depot, station or siding as directed by the railroad. All the freight was to move under the railroad's bills of lading. Respondent was not to issue any receipt, bill of lading or contract for the carriage of any property to be transported under the contract. Respondent was not to transport for others, nor hold itself out as a common carrier or as the agent of the railroad.

The contract further provided that the railroad assumed all liability for the adjustment and payment of claims for loss and damage to property and delay in such transportation, except such as were due to respondent's negligence. Respondent was to carry public liability insurance.

The arrangement between the railroad and the motor company contemplated that the railroad was to have the exclusive solicitation of all freight business, that shippers were to do business exclusively with the railroad, which would receive the freight as if it were to be shipped by rail and that it would decide in the particular case whether the transportation was to be by it by rail or by the respondent by truck. Shippers were not to know whether transportation of their freight was to be by the one way or the other. The railroad was to collect all freight charges.

The respondent under the arrangement was not to do any store-door pickup or store-door delivery.

Respondent contended that it was entitled to a permit as a "contract carrier" under L. 1933, c. 170. The objectors contended that respondent was not entitled to a permit as such contract carrier on the grounds that the commission was not authorized to issue to it such a permit (1) because of its stock ownership by the railroad, and (2) because the proposed operation by respondent was not as a contract carrier under L.1933, c. 170, but as a common carrier by motor transportation over the public highways between fixed termini or over a regular route, which could be authorized only under a certificate of public convenience and necessity under L.1925, c. 185, 1 Mason Minn.St.1927, §§ 5015-1 to 5015-19.

The commission adopted the views of the objectors and denied the application for the permit. The district court on appeal adopted the contrary view and set aside the order of the commission denying the permit as unlawful and unreasonable. A motion in the alternative was made for amended findings or a new trial, which was denied. Then judgment was entered. All the objectors appealed from the order and the judgment.

1. Respondent moved to dismiss all the appeals except those of the state and the commission. All the appeals raise the same questions. The scope of our decision must be the same whether we hear some or all of the parties.

The motion to dismiss is upon the following grounds: (a) That the appellants other than the state and the commission "are not parties to this action or proceeding"; (b) that said appellants have no interest in the subject matter; and (c) that the order denying the motions for amended findings or new trial is not appealable.

(a) The matter came on for hearing before the commission on the application of the motor company for a permit and the notice of hearing issued by the commission. All the appellants appeared in response to the notice. No written objections to the granting of the permit were filed. The appearances, except that of the Brotherhood of Railroad Trainmen, were formally entered of record, and the appellants were designated as "objectors." Then the hearing proceeded with all parties participating. The representative of the brotherhood was as active a participant in the proceedings as the attorneys representing parties who appeared formally. A reading of the record shows that the commission regarded and treated all of them as parties. All this was without objection by respondent here.

The situation with respect to parties was similar on the appeal from the commission to the district court. Under the statute such appeals are "tried de novo" by the district court. L.1933, c. 170, § 19. At the opening of such trial formal appearances were entered by all appellants except the brotherhood. Then a stipulation was made by the parties of record in open court to submit the matter on the record before the commission supplemented by such evidence as the parties might desire to offer. In the court below as before the commission, there was full participation in the proceedings by all appellants except the brotherhood, without objection by respondent. After decision below, all the appellants, including the brotherhood, made a motion for amended findings or a new trial. No objection was made to the appearance of the brotherhood in the proceedings and the order denying the motion recited its appearance.

One who appears as an actor in a litigation or proceeding claiming or asserting an interest in the subject matter thereof is a party. It makes no difference that the party has failed to file a written pleading. The pleading may be waived where there is a voluntary trial of the issue which the pleading would have raised. McAlpine v. Kratka, 92 Minn. 411, 100 N.W. 233, infra (no pleadings); Kief v. Mills, 147 Minn. 138, 179 N.W. 724; Lyford v. Martin, 79 Minn. 243, 82 N.W. 479; 5 Dunnell, Minn.Dig., 2d Ed., § 7630 (failure to file a reply); Thomas...

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