Undercofler v. L. C. Robinson & Sons, Inc., 40982
| Decision Date | 26 February 1965 |
| Docket Number | No. 3,No. 40982,40982,3 |
| Parties | Hiram K. UNDERCOFLER, Commissioner, v. L. C. ROBINSON & SONS, INC |
| Court | Georgia Court of Appeals |
Syllabus by the Court
The evidence demanded a finding that the defendant in error was a carrier within in the meaning of Code § 92-2902(10).
After a hearing held before the State Revenue Commissioner, the Commissioner found that L. C. Robinson, Inc. was a contract carrier for hire and ordered that the company was liable for motor vehicle license fees imposed by Code Ann. § 92-2902(10). From the Commissioner's order the company appealed to Troup Superior Court for a de novo determination of the case. The parties submitted to the court a statement of evidence agreed upon by them, and the trial judge, sitting without a jury, decided the issues of both law and fact. The following facts were stipulated by the parties:
During the calendar year 1963, the company owned and operated certain motor vehicles required to be registered in Georgia, and it registered all these vehicles as private trucks under Code Ann. § 92-2902(3). Working as a subcontractor under agreement with a general road-building contractor, the company used these vehicles 'to move, transport and spread or deposit certain materials' used in the construction of highway projects. The work generally performed was 'the hauling and the spreading or depositing of specified materials, such as dirt, sand, stone, different classifications of asphaltic concrete, and base material from the borrow pit, stock pile, rock quarry, asphalt plant, and/or base plant to the specified construction site.' After transporting materials to the construction site, the company was required to deposit or spread the materials as designated by contract. Where rock was spread, it was 'usually deposited by opening the tail gate to the necessary width and driving slowly along the road site under construction.' The company was required to deposit other materials into machines known as spreaders. Some of the spreaders were self-propelled and some were not. If a particular spreader was self-propelled, the company's work in hauling a load of material ended in depositing the material into the spreader. Where the spreader was not a self-propelled vehicle the company's truck propelled it while depositing the material into the spreader. The operation of the spreader was under the control of the general contractor. 'Bids for work to the prime contractor [were] based upon estimates as to the type material to be transported and deposited, the distance involved, the quantity of material and its location with reference to the construction site.' Sometimes materials were transported 'only a few yards or a few miles'; sometimes the materials were transported 'as far as 25 to 50 miles.' The company did not own any of said materials in 1963 but has at times contracted to furnish materials such as rock which [it] would purchase.' If the vehicles should have been registered as trucks used as common or contract carriers rather than as private trucks, 'then the Commissioner would be entitled to a judgment in the amount of $4,565.00.'
The trial court entered judgment reversing the order of the Commissioner. Recitals contained in the judgment stated, 'Code Section 68-502(c)(8) exempts the Appellant from the license provided for in Section 92-2902(10) by providing that the term 'Motor Carrier' shall not include a person who carries on the activities described in Code Section 68-502(c)(8), and * * * Appellant is in fact and in law engaged in the activities described and defined in Section 68-502(c)(8).'
The Commissioner excepts to the judgment of the trial court reversing the order appealed from by the company.
Eugene Cook, Atty. Gen., William L. Harper, Asst. Atty. Gen., Atlanta, for plaintiff in error.
Henry N. Payton, Newman, for defendant in error.
1. The main question for determination in this case is whether the specific exception of a certain type of vehicle from the general definition of motor carriers within the provisions of Code Ch. 68-5, a regulatory statute, is to be read into the terms of Code Ann. § 92-2902, a vehicular licensing statute.
Under Code Ann. § 92-2902, which provides for the licensing of the operation of vehicles, two of the classes of vehicles for which license fees are prescribed are 'private vate trucks' (Code Ann. § 92-2902(3)) and 'trucks used as common or contract carriers' (Code Ann. § 92-2902(10)). The schedules of fees for both these classes are graduated 'in accordance with owner declared clared gross vehicle weight.' For weights in excess of 24,000 lbs. the license fees for trucks used as common or contract carriers are much higher than the license fees for private trucks.
A private truck is defined as 'a truck or trailer, as previously defined, other than a farm truck or a farm trailer, as previously defined and other than a truck or trailer perated for hire by a common or contract carrier.' Code Ann. § 92-2901(F). The term 'common or contract carrier' is not defined in Ga.L.1960, p. 998 (Code Ann. §§ 92-2901 to 92-2921, 92-9911).
Code Ann. § 68-502(c) provides: 'The term 'motor carrier' means every person except common carriers, owning, controlling, operating, or managing any motor-propelled vehicle * * * used in the business of transporting persons or property for hire over any public highway in this State and not operated exclusively within the corporate limits of any city or town: Provided, that the term 'motor carrier' shall not include and this Chapter shall not apply to: * * * (8) Any dump truck or transit mixer vehicle used exclusively in the transportation of sand, gravel, crushed stone, fill dirt, borrow pit materials, plant mix road materials, plant mix concrete, or road base materials, to be used in the construction, reconstruction, or maintenance of public highways * * * when payment for such transportation is made by the United States, this State, or any county or municipality or other governmental subdivision of this State, or where payment is made by any contractor performing such public work under contract with any such...
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