Matter of Motor Haulage Co. v. Maltbie ( 1944 )

The Commission has held that petitioner, as to certain of its operations, is not a "contract carrier by motor vehicle" but a "common carrier by motor vehicle" within the Act which provides for the regulation of motor carriers, and within the Act's definition of a "common carrier by motor vehicle" as one who "undertakes * * * to transport property, or any class or classes of property, for the general public by motor vehicle for compensation * * *" [Public Service Law, § 2, subd. 30, cl. (b)]. No one doubts that the quoted language is a reformulation of the ancient common-law definition. The problem is to apply that definition to the ever-changing methods devised by businessmen to attract and satisfy customers. If there is room for a difference of opinion as to whether a particular method amounts to common carriage, then we had better leave the solution of the problem to the Public Service Commission, which the Legislature has set up and equipped for such tasks.

Petitioner has a great many customers and operates numerous trucks and trailers of different kinds. Despite the real or fancied superiority of its service, it does in fact compete with other truckers within its chosen territory. Although it has never advertised to any great extent, it employs solicitors whose persuasions continually add new customers to its list. But nearly all its trucking, petitioner points out, is done under written contracts or, at least, under special arrangements. It follows, says petitioner, that it has never undertaken to do hauling for "the general public" and so is a "contract carrier" [Public Service Law, § 2, subd. 30, cl. (d)] and cannot be classified as a common carrier. If that circumstance exempts petitioner from the regulation of "common carrier by motor vehicle" which the Legislature has deemed essential in the public interest, then petitioner, though constantly increasing its business and taking on new customers, will be forever immune from the controls imposed on its competitors, so long as it can show a written or oral contract or prior arrangement for every job it does. If that be the meaning of the statute, then the Legislature has left in it a hole big enough for petitioner to drive its trucks through. This court long ago held that neither the fact that a drayman had no "regular tariff of charges" nor the fact that as to each of his jobs "a special price was fixed by agreement" kept him out of the classification of common carrier (Jackson A. Iron Works v.Hurlbut, 158 N.Y. 34, 37). "Truckmen, wagoners, cartmen and porters who undertake to carry goods for hire as a common employment in a city or from one town to another, are common carriers", says the opinion in that case.

If petitioner had been organized and if it existed solely to serve one customer or a few chosen customers under fixed contracts, then it would plainly be a contract carrier. If, on the other hand, it made a practice of lining up its vehicles in the public square to await customers, as did the draymen in olden days, then just as obviously it would be a common carrier (Stevenson Co. v. Hartman, 231 N.Y. 378.) But to be a common carrier it does not have to cry its wares to the whole public (see Terminal Taxicab Co., Inc., v. Dist. of Col.,241 U.S. 252, 255, wherein Justice HOLMES wrote "No carrier serves all the public"). It need only hold itself out publicly to do motor haulage. We think its solicitors do that when they make their rounds looking for new customers, even though they work from a selected list of prospects.

None of the many cases mentioned or quoted from in the majority opinion deny the right of the Commission to classify this particular kind of trucking as common carriage. The most recent authoritative case — and surely the one nearest to ours — isCornell Steamboat Co. v. U.S. (321 U.S. 634, April 3, 1944). There the court had before it for review an Interstate Commerce Commission order declaring Cornell Steamboat Company a "common carrier by water" under a statute (U.S. Code, tit. 49, § 902, subd. d) which defined that term as covering "any person which holds itself out to the general public to engage in the transportation by water" et cetera. The company said it was a "contract carrier" because its services were performed "under individual contracts or agreements" (see definition of "contract carrier" in U.S. Code, tit. 49, § 902, subd. e). The company uses thirty-three tugs in towing other craft for various customers. The largest part (some 88%) of the towing is done under time contracts entered into with customers for periods of years. "Arrangements for all its towing services are based on separate agreements" (see 53 F. Supp. 349 for statement of facts.) The three-judge Federal District Court and the United States Supreme Court held that there was substantial basis for the Commission's determination that Cornell Steamboat Company was a "common carrier by water", despite the "time contracts" and the "separate agreements". We feel the same way about this case.

RIPPEY, LEWIS and THACHER, JJ., concur with CONWAY, J.; DESMOND, J., dissents in opinion in which LEHMAN, Ch. J., and LOUGHRAN, J., concur.

Order reversed, etc.