And proof of any operation by the predecessor. In view of total lack of proof of predecessor's operation or that of its receiver's, applicant's president testifying it has not conducted any operations since its incorporation, none by it or its predecessors since May 1935, certificate denied.-Vanway Exp. Co., Inc., 14 M. C. C. 740. And the commission having concluded a hearing is necessary, exhibits attached to the application cannot be considered as evidence of operation without corroborating testimony. In absence of such evidence, applicants have not proved any right to certificate.-Sewell, 12 M. C. C. 591. When applicant fails to file application under the "grandfather" clause, the character of proof required in application to continue operations is the same as that necessary for a new operation.Laske, 3 M. C. C. 613 (614)*. The burden is upon applicants to overcome the doubt when the record as a whole rebuts the verity and accuracy of the showing. Documentary proof or corroboration of other witnesses, or both, are necessary.-Tri-State Transp. Co., 7 M. C. C. 707 (708). Burden of proof is upon applicant to show public convenience and necessity. This proof may be offered through documentary evidence and testimony of witnesses familiar with transportation facilities in the territory and the need for additional service.-Marska Extension, 6 M. C. C. 105. When character and scope of applicant's operations are questioned, allegations in the application or self-serving statements of applicants' witnesses, are insufficient. Documentary evidence, such as bills of lading, receipts, affidavits, or testimony of supporting witnesses familiar with applicant's operations are necessary to sustain the burden of proof.-Crescent Transp. Co., 2 M. C. C. 313 (316). A serious question exists as to whether self-serving testimony can be accepted as establishing valuable rights. The best evidence of which the case is sus ceptible is required, but this does not demand the greatest amount of evidence which can possibly be given.-Hagerstown Motor Exp., 3 M. C. C. 786 (788). To deny the application under rule requiring documentary proof, which is beyond applicant's ability, would amount to imposition of an unreasonable technicality. Applicant's testimony must be accepted as proof of operations unless his veracity be in doubt or protestants disprove material facts rendering applicant's statements unreliable in substantial respects.-Id., p. 789; Niagara Freight Lines, Inc., 6 M. C. C. 585 (587). Proof of actual shipments handled by applicant in irregular-route service does not show continuation on and since June 1, 1935, but there is no evidence applicant has not performed such service. In absence of such evidence the oral testimony of its president will be accepted as sufficient proof thereof.-Dougherty Storage & Van Co., 3 M. C. C. 427 (431). Applicant produced no witnesses to support his application, but as no protestants contested granting the rights sought, applicant has sustained the burden of establishing public convenience and necessity.-Gilbert, 6 M. C. C. 293. Despite the fact applicant has been victimized and may suffer severe loss because of denial of certificate, he has not shown he is the real party in interest. The burden of proof is upon applicant.— Brenner, 14 M. C. C. 53. Registration under N. R. A. Code for the trucking industry is not controlling of the commission's determination.Steinla Motor & Transp. Co., Inc., 4 M. C. C. 97; Adams Transfer & Storage Co., 14 M. C. C. 613. Applicant's failure to obtain a license in any State in 1936, his statement that he made only occasional interstate trips, with other circumstances, fails to sustain the burden of proof assumed to establish bona fide operation.-Motor Exp., Inc., 3 M. C. C. 315 (318). 20. Briefs. When parties agree to submit a case without filing of briefs, and one of the parties receives leave to submit additional data after close of | was conducting on June 1, 1935.-Coas the hearing, it would be unfair to pre- Transit, Inc., 16 M. C. C. 566. clude any comment with respect to such Evidence consisting only of oral testi data. The letter of comment by prot-mony and self-serving declarations o applicant is insufficient.-Purdue Exten sion, 12 M. C. C. 91 (93); Wm. F. Cros sett, Inc., Extension, 14 M. C. C. 36 (368). | estant was mailed to counsel for applicant and he undertook to reply to the merits of it, as well as to protest against its consideration. The exchange of correspondence will be incorporated into the record and the letters treated as in the nature of briefs.-Crumpacker, 4 M. C. C. 264 (268). 22. Evidence.-Hearings, reports, by divisions of the commission, sec. 205 (1), n. 10. Protestant rail lines are entitled to have existing motor-carrier services con sidered on any application for authority to institute new service or extend ar old one, even though the carriers fur nishing such services are not repre sented.-Cantlay & Tanzola, Inc., 10 M. C. C. 743 (751). Rejection of proffered exhibits show ing taxes and number of employees of railroads was proper.-Inter-City Truck ing Co. Extension, 4 M. C. C. 155 (158) Failure of plaintiff to include essential evidence in the record before the court is a bar to the jurisdiction of the court to pass upon the evidence upon which the commission's findings under the application were based.-Id., p. 239. | ered.-Jones, 7 M. C. C. 385 (386). In absence of evidence to show whether there is any arrangement be tween applicant and other carriers with respect to pick-up and delivery to make the service a part of interstate com merce, such service will not be consid Letters offered to verify the fact that applicant had been in business for many years are not competent evidence for any purpose.-Id., p. 386. Hearing of evidence is an exclusive function of the commission and it may disbelieve or disregard any evidence which to it seems unconvincing; it may give as much or as little weight to evidence as it deems proper. But, it must not act arbitrarily or capriciously in considering evidence presented to it.Loving v. United States, 32 Fed. Supp. 464*. Determination of the weight of the evidence presented in an application for a certificate of convenience and necessity is for the commission.-Eastern Carrier Corp. v. United States, 31 Fed. Supp. 282*. Although applicant's documentary evidence did not show its trucks were operated on fixed schedules or operated between each and every point, appli cant maintained a tariff of its rates from and to all points, transported all traffic offered, its documentary evidence was submitted only as representa tive. As no evidence was offered in contradiction, certificate issued.--Garford Trucking, Inc., 9 M. C. C. 672*. The court is powerless to hear the evidence or to review the proof submitted to the commission in application for certificate.-Id. Testimony in favor of a new service is to be discounted as public sentiment It is not necessary to prove operations invariably favors it, but is entitled to on a fixed schedule or with any specified some weight as based in some measure degree of regularity or show bona fide on experience in benefits to be derived regular-route operations, but there from competition. Similarly, testimony should be some evidence that the opera of those opposed, satisfied with existing tion has been at intervals so frequent as service, must be discounted.—Santa Fe to preclude any doubt as to its conTrail Stages, Inc., 21 M. C. C. 725 (754). tinuity.-Dougherty Storage & Van Co., Self-serving statements of a successor 3 M. C. C. 427 (430). in interest are insufficient to establish Evidence that fails to show dates, what operations, if any, the predecessor origin and destination points, approxi mate number of shipments transported between points claimed to have been served, is insufficient to support a claim for authority to operate as a common carrier of general commodities through an extensive territory.-Brown Motor Lines & Storage Co., 13 M. C. C. 545 (547); Adams Transfer & Storage Co., 14 M. C. C. 613 (626). Statements of applicant's president and traffic manager of one shipper, with showing of only occasional movement, emergency service, which may or may not be required in the future, is insufficient for broad territory sought.United District Exp. & Trucking Corp., 11 M. C. C. 303. That applicant was an interested witness does not make his testimony incompetent.-Rhoades Extension, 20 M. C. C. 691. There is no merit to the contention that a prima facie case has been made by the mere filing of the application.Winton, 17 M. C. C. 451. Evidence by employee of a competitor, as protestant, is admissible.-Rucker, 18 M. C. C. 71. The only documentary evidence relates to shipments which moved in November 1934, which antedates Jan. 1, 1935, too far to be considered as evidence of bona fide operation on that date.-Ziffrin Truck Lines, Inc., 6 M. C. C. 722 (727, 735). When the right to serve intermediate points is claimed, a showing as to movement of traffic between termini between which there are a number of optional routes is insufficient.-Id., p. 729. Evidence purporting to show granting certificate to applicant would have an adverse effect on protestant is admissible, although weight to be accorded it may vary considerably in each individual case.-English Extension, 17 M. C. C. 755 (758). In application for a certificate protestants normally should not be expected to be prepared to defend the level of their rates.-Reymers Extension, 11 M. C. C. 434 (436). Exceptions on the ground that applicant's rates are not compensatory, and that they are departed from arbitrarily to suit the occasion, are inappropriate in proceedings to determine "grandfather" rights.-Puffer, 3 M. C. C. 487. In absence of contradictory testimony, the commission may accept statement by applicant as to necessity for his services.-Watson, 1 M. C. C. 277; Bodmer, 4 M. C. C. 240. In absence of contrary showing, the commission must assume present facilities are adequate.-National Transit Corp., 8 M. C. C. 151 (155). The commission is unable to accept the view that in absence of any objection on the part of existing motor carriers authority requested should be granted.-Motor Vanway, Inc., 17 M. C. C. 314. In view of lack of evidence as to nature and extent of the service of protestants or others, the commission is warranted in concluding applicant's service is required.-E. E. Mills Trucking Co., Inc., 17 M. C. C. 317 (320). Volume of applicant's operation and absence of any motor-carrier protestant justify granting the application.-Tyler Extension, 13 M. C. C. 379. Commission cannot presume proposed service will be required from the mere failure of existing motor carriers to oppose the application.-Boyd Extension, 20 M. C. C. 533. That no carriers protested the application is evidence that granting it will not unduly prejudice competing carriers.-Rewalk, 19 M. C. C. 227. Applicant was his sole witness. In absence of evidence concerning services of other motor carriers authorized to transport the commodities between counties named, there is no valid basis for denying authority.-John Lueddeke, Inc., 9 M. C. C. 391 (392). Applicant's own testimony, unsupported by corroborating testimony of shippers or receivers, is insufficient to warrant a grant of the broad authority sought.-Johnson, 18 M. C. C. 181. compliance with which, due to reorgani- Failure to produce documentary evidence after agreement to do so, and when such evidence was declared to be in applicant's possession, lends much force to protestants' contentions that nicality.-Niagara Freight Lines, Inc., applicant's operations did not approach the extent claimed.-American Carrier Corp., 11 M. C. C. 83 (87). When character of applicant's opera- | tions is in issue, it is essential that the nature of such operations be definitely established by testimony of witnesses familiar therewith or by presentation of documentary evidence relating thereto.-Beckel & Ziebell, 2 M. C. C. 517 (519). 6 M. C. C. 585 (587); Hagerstown Motor Although applicant's documentary Showing that applicant, while making no distinction between interstate and The best evidence rule does not de- intrastate service, actually handled the mand the greatest amount of evidence commodities extensively in the territory which can possibly be given on any fact, is sufficient to show interstate service but it is designed to require submission was coextensive with the intrastate and of the best evidence in possession of the may reasonably be measured by extent party. To deny application upon a rule of the combined service.-Oilfields requiring documentary proof, com-Trucking Co., 12 M. C. C. 16 (18). pliance with which is beyond applicant's Presumption that there is need for ability, would be to impose an unreasonable technicality.-Gordon, 16 M. C. C. 135; McMakin Motor Coaches, Inc., 7 M. C. C. 95; Sasser, 4 M. C. C. 381 (382)*. In view of probable loss of documentary evidence by applicant's predecessor and the fact that oral testimony submitted was uncontroverted, proof is sufficient to show operation up to July 25, 1935. Rhoades, 12 M. C. C. 135 (136). Though records had not been kept, and applicant visited shippers to acquire copies of originals, being the best applicant was able to obtain, with oral testimony, sufficient.-Fisher, 14 M. C. C. 655, It is hardly to be expected documentary evidence, showing service to and from all intermediate points, will be available. All that may reasonably be required is proof of actual operation to and from the termini and the more important points en route, with proper evidence of a holding out and willingness to serve the other points.-Nevitt, 4 M. C. C. 298 (300). To deny application solely upon any rule requiring documentary evidence, continuance of operations because they The commission is not precluded from considering any document resulting from the courts' proceedings other than the actual decrees.-Galveston Truck Line Corp., 22 M. C. C. 451 (454). Abstracts of shipping records alone without a consideration of the complete records from which they are drawn may not be considered as conclusive proof of operation between particular points.-Id., p. 465. In absence of definite proof that ap plicant was in fact holding itself out to conduct other operations, showing in its tariff supplement as to commodities handled is controlling.-Milwaukee Truck Service, Inc., 17 M. C. C. 647 (652)*. Employee in accounting department of the company was in a less qualified position to know of what he testified than the traffic manager whose duty it was to arrange for transportation of | farmers, truck operators, others not the company's products.-Knaus, 20 present, objected to on the ground that M. C. C. 669 (671). protestants were not afforded opporWhereas verified application and tes-tunity to cross-examine the signers, cantimony of applicant's witnesses in sup-not be accepted as evidence.-Youngport thereof constitute at least a prima berg, 6 M. C. C. 460 (461); McGrew, 6 facie showing and presumption of M. C. C. 72 (73)*; affidavits.-Laska, 10 truth, these are both rebuttable. Doubt M. C. C. 431 (433) *. of verity and accuracy of the showing is not met by vague and contradictory statements standing alone.-McCarthy, 17 M. C. C. 763; Tri-State Transp. Co., 7 M. C. C. 707 (708). Purported delivery receipts, not signed, cannot be accepted as evidence.— Gulf States Exp., Inc., 9 M. C. C. 251 (254). When correspondence exchanged and In absence of evidence to the contrary incorporated into the record as in the applicant's past operation raises a pre-nature of briefs, show discrepancies as sumption that public convenience and to tons of freight hauled, miles operated, necessity require its continuance.-Cor- revenue, as against annual report of aprington, 14 M. C. C. 199; Sanford, 14 plicant, little weight can be accorded to M. C. C. 203. either of the documents.-Crumpacker, 4 M. C. C. 264 (268). See also § 207 (a), n. 25. Evidence of operation without authorization, introduced to prove demand, must be considered in the light of the facts in regard to legality or illegality of the operation which made It possible to produce such evidence.Huckabee Extension, 18 M. C. C. 211. 35. Postponement of effective date, effect.-Increase of time was given by the commission for the reason printed forms prepared were not ready for distribution. Postponement of effective date was for the benefit only of those who could not qualify under the "grandPersonal services to patrons in collec- father" clause as of June 1, 1935, but tion and execution of orders upon mer- were engaged in transportation as a chants is properly to be considered in common carrier on Oct. 1, 1935. Comdetermining whether public convenience plainant, not having operated as an inand necessity require transportation terstate carrier until Oct. 13, 1935, canservice to which personal services are not benefit by the order. Temporary an adjunct.-Tynes, 9 M. C. C. 699; restraining order against members of the following 4 M. C. C. 523. State railroad commission denied.-L. & Transportation defined, § 203 (a) L. Freight Lines, Inc., v. Douglass, 14 (19), n. 2. Fed. Supp. 399. The commission's order of Sept. 30, 1935 changed the date for filing "grandfather" applications from 120 days after Oct. 1, 1935, to 120 days after Oct. 15, 1935. Instant application filed Feb. 10, Petitions signed by students of the State university and other residents of the city, in support of the application, with no evidence tending to identify the signatures, has no probative value.-TriState Transit Co. of La., Inc., Extension, 1936, was therefore seasonably filed.11 M. C. C. 285 (288). Pittsburgh-Weirton Bus Co., Inc., 10 M. Written statements in favor of appli- C. C. 266 (267). cant's continued operation, signed by Regulations of the Commission By order of September 30, 1935, the commission extended the effective date of this section to October 15, 1935. 120-day provision brought expiration date to Feb. 12, 1936. [Notice, warning of loss of privileges on and after Feb. 12, 1936, subjecting to fine; extension of operations unlawful after Feb. 12, 1936, issued Dec. 30, 1935]. |