93 Pa. Super. 421 | Pa. Super. Ct. | 1928
Argued March 15, 1928. The Lehigh Valley Transit Company, a public service company, transporting not only passengers but also express matter and light freight between Philadelphia, Bethlehem, Allentown and Easton, complained to the Public Service Commission that Fred Erb, a resident of Philadelphia, was engaging in the business of a common carrier, for hire, of freight and merchandise between these cities by means of motor vehicles without having secured the approval of the Commission. The Reading Company was permitted to intervene in the complaint.
The Commission, after a hearing and investigation in accordance with the act creating it, sustained the complaint and ordered Erb to desist from the transportation business in which he is now engaged until he shall have obtained a certificate of public convenience in approval thereof. Erb, having denied in his answer that he is "operating motor vehicles as a common carrier" and having averred that he is operating *423 only as a private carrier "for the delivery of goods under contract with certain houses in Allentown and Bethlehem," now appeals from the order.
Our Public Service Company Law applies not only to incorporated common carriers doing business within this state but also to "all persons engaged for profit in the same kind of business." Common carriers are thus defined: "the term `common carrier' as used in this act includes any and all common carriers, whether corporations or persons, engaged for profit in the conveyance of passengers or property, or both, between points within this Commonwealth, by, through, over, above or under land or water, or both." As clearly stated for this court by Judge KELLER in an opinion filed at this term in Frantz v. Public Service Commission,
Appellant is engaged in the business of transporting merchandise between Philadelphia and Allentown, Bethlehem and Easton. In this business, he used two five-ton trucks and one two and a half-ton truck. Each truck makes about three trips per week. Appellant started in this business in 1923. At that time he bought a truck and was hired by the Philadelphia and Lehigh Transportation Company. When that company went out of business, he began to operate independently. At that time, about December, 1923, he made written contracts with his shippers, five in number. The contracts were with the following persons: a printer in *424 Allentown, covering shipments of paper from Philadelphia; an owner of stores in Allentown, Bethlehem and Easton, covering shipments of groceries, etc., from Philadelphia; a flour mill in Easton, covering shipments of flour to American Stores' warehouses in Philadelphia; an upholstering firm in Philadelphia, covering shipments of furniture from a store in Allentown; a paint company in Philadelphia, covering shipments of paint from a manufacturer in Easton.
These contracts have expired, and appellant does not now transport by virtue of them. He is now operating under what he claims are verbal contracts, described by him on cross examination as "understandings." He named some twenty firms with which he had such understandings, of which probably six were sugar or grocery brokers for other patrons. The exact number of his customers is not certain, as he named them from memory and has no record of them. His books show only the names of persons from whom he has received goods for shipment.
The nature of these contracts is illustrated by appellant's description of the manner of making them. A contract with a furniture dealer was made as follows: "Q. When was that understanding made? A. That understanding was made — I don't remember the time, but I was talking to Mr. Speigel himself. Mr. Speigel said, `You do my hauling until I give you notice to stop.' Q. Does that cover all the hauling that he has or just what he offers you? A. Just what he offers me. I don't know whether I do all his hauling."
A contract to carry matches thus: "Q. The Ohio Match Company — when did you make that agreement? A. About three months ago, I guess. Q. Was it as long as three months ago? A. About two or three months, I think it is. Q. It wasn't within a month? A. I don't know, I really cannot remember when the Ohio Match Company called me up that I should haul some stuff up to Allentown. Q. They called you up *425 and asked you to haul some stuff? A. Yes. Q. Who was it called? A. I don't know. Maybe it was a shipper. Q. You agreed to haul it? A. Yes."
Concerning another patron appellant testified: "Q. What did he say about hauling; did he say how long he wanted you to haul, or anything of that kind? A. He called me up that I should take some stuff up to Allentown. He asked me, `Whenever we have something I will call you again; I want you to do the hauling for me.'"
Appellant has no advertised place of business. He has rented space on the loading platform of the Owl Transfer Company at 119 N. Front Street in Philadelphia and has made arrangements with some six sugar and grocery brokers, under which they telephone to him when they have purchased goods for delivery to wholesale grocers in Allentown, Bethlehem or Easton. He receives these goods either at the refinery warehouses or at his loading platform. He also has arrangements with the consignees who pay the freight. In addition to the transportation under orders from brokers, he carries under agreements with a vinegar company, a cheese manufacturer, a root beer concern, a hotel supply company and others. He also transports goods to Philadelphia from the three cities referred to. These shipments include paint, furniture and flour.
Appellant does not require that shipments be made regularly, or that they be of any definite weight. One of his customers ships almost every day, another twice a week, another "maybe a Saturday I am sent a case or two," for another "sometimes takes two or three months to get an order." The shipments vary in weight from a fixture for a soda fountain to a truck load of sugar.
The rates charged by appellant are uniform on similar classes of merchandise. His regular rate for sugar is 20 cents a hundred although one shipper pays 25 *426 cents for a special service. The rate for canned goods, vinegar in barrels, etc., is 25 cents a hundred; on furniture frames it is $1.50 a hundred, etc. Shipments from various customers are carried on the same truck. He has "a truck going and coming each way, and any of these shippers can put goods on it." Appellant does not formally advertise or solicit new customers but it seems to be well known that he is engaged in the business. He has increased his business from five shippers to about twenty-five in four years. His present customers have shipped goods on his trucks for varying lengths of time. Some of them he began to serve in 1923, others he first served two years ago, one year ago, or immediately prior to the hearings. This new business he secured because the shippers came to him unsolicited. He has agreed to carry for those who asked him and is willing to make "similar private contracts" with others. It is true that he has refused to carry certain goods offered to him, but apparently because the offer was not in line with his regular business. The shipments which he refused were packages, pieces of furniture, "a parlor-suite or something like that." The only offer of regular business which he refused involved shipments from a foundry at Sellersville.
That appellant has practically undertaken to serve all who apply within the limits of his undertakings and facilities is shown, not only by his actions in accepting such shipments, but also by his explanation of the reason for refusing others, as follows: "Q. Have any inquiries been made to you in the last year to do that? A. Well, there was a number of them asked me whether I was going to take packages or pieces of furniture up to Allentown, Easton and Bethlehem, or Sellersville, Center Valley or Coopersburg, and I refused them, and I said my hauling only is a private route from Philadelphia to Bethlehem. I said I do hauling along my route....... Q. When you speak *427 about your route, what do you mean by that? A. I mean wholesale grocers that is in Allentown, Bethlehem and Easton."
Notwithstanding the extent of appellant's transportation business, as indicated by his testimony, he contends that it is a private and not a public carriage in which he is engaged. As we understand his argument it is predicated upon several grounds, namely, that he is working under so-called contracts with particular concerns; that he does not hold himself out to be a public carrier or solicit business indiscriminately; and that he has refused to haul for persons with whom he was not under contract. We are not here concerned with any question relative to his duty to carry, or liability while carrying, but solely with the nature of his present employment, that is, whether he is holding himself out as engaging in the transportation of goods for hire as a public employment or merely as a casual occupation incident to some other business and engaged in under special contracts of employment in each particular case. The presence or absence of the sort of contracts or understandings disclosed by appellant's testimony should not be a controlling factor in the determination of the question involved. Contracts, express or implied, are an incident to nearly every form of transportation, whether by common or private carriage. Nor do we consider the fact that appellant has not advertised his business by circular, mail or otherwise, as decisive of the question whether he has held himself out as a carrier. The original purchase and gradual increase of his equipment, the continuous and practically regular daily operation of his trucks over the same route, and the fact that his business has grown with rapidity and to the extent indicated by his testimony would warrant the conclusion that there has been an indirect holding out and that it is well known that he is engaged in the transportation business to and from the cities mentioned. *428
The fact that upon occasion he has declined to transport certain articles for certain people under the circumstances related by him should not have attached to it the importance contended for by his counsel. These matters are all to be considered, but in the light of all the circumstances disclosed by this record no one of them — or even all of them taken together — is conclusive. The duty of serving all without discrimination is one of the distinguishing incidents of common carriage, but in McBride v. McNally,
In Piercely v. Public Service Commission,
The order is affirmed. *430