Stoner v. Underseth
| Decision Date | 08 May 1929 |
| Docket Number | 6462. |
| Citation | 277 P. 437,85 Mont. 11 |
| Parties | STONER v. UNDERSETH et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Lewis and Clark County; Wm. L. Ford Judge.
Action by George J. Stoner against Theodore Underseth and others. From a judgment for plaintiff, defendants appeal. Cause remanded, with directions to modify judgment, and, as modified, judgment affirmed.
Loble & Adair and Eugene Sanden, all of Helena, for appellants.
E. G Toomey, of Helena, for respondent.
Defendants have appealed from a judgment in favor of plaintiff, holder of a permit or certificate from the Montana Railroad Commission authorizing him to furnish freight and passenger service, by motor transportation, between Helena and Lincoln, in Lewis and Clark county, this state, which judgment purports perpetually to enjoin the defendants from operating motor vehicles in intrastate commerce over the route served by plaintiff.
The route described in the record is along the public highway from Helena, through the agricultural centers of Silver, Canyon Creek, Wilborn, and Stemple to Lincoln, a distance of 52 miles, with a side trip from Wilborn to the mining camp of Gould, 5 miles off of the route described in the plaintiff's permit. While Gould is not mentioned in the permit, the pleadings allege and admit that plaintiff's privilege includes a connection to Gould, and the record discloses that the Railroad Commission has recognized this connection by the approval of time schedules and freight and passenger rates to and from Gould, as well as all other points on the route.
Plaintiff listed with the commission but one vehicle constructed for the carriage of freight and passengers, which he operates between Helena and Lincoln, and operates a second truck from Gould to connect with the main route, but the permit for the first truck mentioned recites that, "in case other or additional equipment is used, you will be governed by Rule 6, page 7, of the Rules and Regulations." We are not advised by record as to the nature of this "rule"; however, it is alleged and admitted, and the testimony is, that plaintiff had made all necessary payments to, and complied with all of the rules and regulations of, the commission.
Approaching both Lincoln and Gould, the highway crosses the main divide at an altitude of approximately 6,600 feet, and, during the winter months, for at least a part of the time, this part of the route becomes impassable to motor vehicles, and plaintiff is compelled to substitute horse-drawn vehicles. Plaintiff's time schedule over the route, approved by the commission, includes Gould, and gives the time of leaving each point on the route; it recites: The record, however, shows that plaintiff ran as near on schedule time in the winter months as conditions permitted. The territory served by plaintiff is sparsely settled, and it is clear from the record that it will not support more than one carrier operating for profit.
Plaintiff has been the permittee since August, 1926, prior to which time defendant Theodore Underseth operated the Helena-Lincoln stage line, but refused to comply with the law regulating such business (chapter 154, Laws of 1923, chapter 103, Laws of 1925), on the ground that his business would not justify the payment of the fees and insurance charges required, amounting to over $300 a year. The permit under which plaintiff operated during the period covered by this action was issued in April, 1928, effective for one year from date.
Plaintiff's grounds for injunctive relief, as alleged in his complaint, are that the defendants, from April 15, 1928, up to the time of the commencement of the action in August, 1928, operated four motortrucks, without license or permit, over his route, as common carriers for hire, and in the same manner as he operated and served the same portion of the public and the same points, soliciting business and exacting compensation for service; and that this was done first "by subterfuge and artifice" and later "openly and notoriously."
Defendants filed a joint answer in which they deny that they have "by subterfuge or otherwise" operated "as common carriers for hire" over the route, or have "infringed plaintiff's business as a common carrier * * * or have solicited the carriage of freight or passengers in competition with plaintiff." Reuben Underseth alleges that he has no interest in the motortrucks operated by his two brothers. Theodore Underseth alleges that, prior to 1926, he secured an "oral permit" from the Railroad Commission to operate between Helena and Gould, which permit has never been revoked. Theodore and Carl Underseth then "admit the operation of motor trucks in the fulfillment of private contractual obligations of your defendant, Theodore Underseth," and deny that they have transported any person or article other than in fulfillment of such obligations. In closing, the defendants "deny that plaintiff is entitled to the relief, or any part thereof, in said complaint demanded, and pray the same advantage of this answer as if they had pleaded or demurred to said complaint."
After a full hearing, the court made elaborate findings of fact and conclusions of law in favor of plaintiff; the findings with reference to the acts of defendants follow the wording of the complaint summarized above. Defendants' specifications of error argued cover but the questions herein discussed.
On perfecting their appeal, without tendering a transcript of the evidence for consideration, defendants filed in this court an application for a stay of the injunction, in which they represented that the New Gould Mining Company, at Gould, in its operation required the hauling of heavy machinery, timber, lumber, high explosives, and supplies, for which hauling plaintiff was not equipped; that there was no doctor at Gould, and an emergency might arise at any time requiring the immediate transportation of men injured or ill to Helena, and that defendant Theodore Underseth had a contract with the mining company to do this hauling. We called the attention of counsel for the plaintiff to this application, and he frankly admitted that the commission has no authority over private carriers, and that the decree here affects defendants only as common carriers; conceded that the injunction should not extend to the hauling of freight or passengers under contract with the New Gould Mining Company, and agreed that the court might provide for such transportation, and none other, pending the appeal. This court thereupon issued its order staying the injunction pending appeal, in so far as it purports to interfere with the defendants' operations as private carriers pursuant to contract with the mining company and permitting the carriage of freight and passengers under such contract, but provided therein that the order should not be construed to permit the defendants to transport property or passengers for others than the mining company. A bond of $1,000 was required from the defendants, conditioned that defendants would pay all damages which plaintiff should suffer by reason of the stay. The questions raised by defendants will be treated in their logical order.
1. It is asserted that chapter 154, Laws of 1923, provides for the administration of the act by the Railroad Commission, and that courts should not be resorted to for this purpose, at least until the matter in controversy has been "thrashed out" before the board; in other words, that an injunction will not lie in such a case as this.
While "it is within the province of the board of railroad commissioners to whom the legislature has delegated authority, to administer the Act" (Interstate Transit Co. v. Derr, 71 Mont. 222, 228 P. 624), no adequate provision is made in the act for meeting such a situation as faced plaintiff by an appeal to the board for relief. The board may refuse a permit to a person desiring to compete with a regularly licensed transportation company, but it cannot prevent illegal competition, and the act (section 8) but provides that a violation of the act or of the regulations of the board constitutes a misdemeanor. Prosecution under this section is not such plain, speedy, and adequate remedy as to deprive a court of equity of jurisdiction to grant injunctive relief; injunction will therefore lie at the instance of one entitled to operate a transportation line for hire between fixed termini, to prevent a competitor operating without a license from conducting the same business over the same route. Willis v. Buck, 81 Mont. 472, 263 P. 982; Northern Pacific R. Co. v. Bennett, 83 Mont. 483, 272 P. 987.
2. Counsel for defendants assert that the act under consideration does not apply to private carriers, and that the defendants are private, and not "common," carriers. Conceding the correctness of the first statement, it has no application here, if, in fact, regardless of their statement to the effect that they never intended to dedicate their equipment to the public, the defendants are common carriers:
The allegation that defendants were operating under an "oral permit" which had never been revoked is not sustained by the evidence. It appears that Theodore Underseth had a mail contract in the fall of 1924, and was then operating as a common carrier as well; he he wrote the commission stating that he could not comply with the law and pay for the insurance required, and closed his letter with the inquiry "Can you grant me an exemption from the law until June 30, 1926, at which time my contract expires?" He asserts that thereafter the "chairman of the board" in private...
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