OCR Text |
Show PAGE THE DAILY RECORD FOUR In The Supreme Court Of The State Of Utah Mountain States Moving and Storage Company, a Utah corporation, Plaintiff and Appellant, No. 12926 FILED April v, Suhr Transport Inc, and Far-G- o o. 5, 1973 Van L. M. Cummings, Clerk Lines, Inc., basis of plaintiff's complaint. The oral permission, granted by Suhr to Far-G- o to use Suhr's operating rights to transport household goods originating or destined for Utah, created no liability on the part of Suhr for services performed by plaintiff pursuant to the agreement between plaintiff and Far-GPlaintiff, in performing the services pursuant to the agency agreement, did not rely on any representation, actions, or conduct by any one that Suhr would be responsible for payment. The trial court rendered a judgment of no cause of action in favor of Suhr. Defendants and Respondents. On appeal, plaintiff contends that Suhr is liable for $6, 307. 97 for the services rendered by plaintiff. Plaintiff urges that until the I. C. C. had Suhr remained approved the transfer of Suhr's operating rights to Far-Gon for conducted all its Plaintiff cites 49 C.F. R. responsible operations rights. 179. 1, which provides that no attempted transfer of any operating rights shall be effective prior to approval by the Interstate Commerce Commission. Plaintiff does not rely on the traditional concepts of agency, i. e. , that a ficuciary relation resulted from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent so to act. Plaintiff urges that one of the consequences of violating the regulations of the I.C.C. concerning the transfer of operating rights is to create as a matter of law an agency relation, whereby the transferor of the operating rights is held to the principal and responsible for the contracts of its agent, the transferee. o, CALLISTER, Chief Justice: Plaintiff initiated this action to recover for services it rendered under a written contract with Far-G- o Van Lines. Far-G- o is involved in a bankruptcy proceeding, but through counsel, it stipulated that judgment might be rendered against it in this action. Plaintiff sought to hold was Suhr's agent. defendant, Suhr, liable under the theory that Far-G- o favor of Suhr; in was rendered the before trial court, judgment Upon therefrom. plaintiff appeals Plaintiff, a Utah corporation, acts as an agent for van lines and provides origin and destination services, such as packaging, storing, and packing household goods involved in interstate movements. Suhr, whose principal place of business is in Great Falls, Montana, has an Interstate Commerce Commission certificate authorizing it to transport household goods between points in Montana and seven other western states, including Utah. Far-G- o operated out of Norfolk, Virginia. Some time prior to June 21, 1968, the two defendants entered into an agreement for Far-G- o to purchase part of Suhr's operating rights under the I.C.C. certificate, and a $3,000 deposit was placed in escrow. This sale was subject to approval by the I. C. C. Pending the action of the L C. C. , the defendants entered into oral agreement whereby Far-G- o would establish certain interlining arrangements for the transportation of household goods of military personnel, using Suhr's operating rights granted by the I.C.C. was to conduct the entire operation and Under this oral agreement, Far-G- o -a Suhr would receive five dollar token payment for each shipment for the use of its operating rights. During the time this agreement was in on effect Suhr received $9, 300 for the shipments processed by Far-G- o states. Suhr's operating rights in the eight western ' Subsequent to this oral agreement, Joe Hedge, an employee of contacted Lyle Warner, President of plaintiff, and stated that Far-G- o together with other carriers, was setting up a nationwide interlining system to handle transportation of household goods for military personnel. Hedge represented that Far-G- o had permission to use Suhr's operating rights in eight western states, and he inquired whether plaintiff would be interested in participating in such system by providing services in Utah. Plaintiff signified its willingness and entered into a written agreement on June 21, 1968. This agreement was designated as "Far-G- o was the Van Lines, Inc. Agency Agreement," and specified that Far-G- o of and the was second die and of first agent party part. part, plaintiff party (This is the agreement under which plaintiff seeks recovery in the instant action. ) Following execution of this agency agreement, Hedge and Warner went to Hill Air Force Base and filed the necessary papers, using Suhr's operating rights, so that Far-G- o could engage in transporting the household goods of military personnel. Far-G- o Plaintiff, thereafter, furnished services to Far-G- o under the agency comnensated agreement and billed Far-G- o for 150 shinments. Far-G- o Far-Go 120 When of became the for shipments. approximately plaintiff for the not make did and payment remaining 30 financially distressed shipments, this action was filed. At the time the agency agreement was executed plaintiff was informed that it was to submit all of its billings and Suhr was not mentioncommunications regarding the agreement to Far-Ged in the agency agreement; Suhr did not at any time perform any of the services, duties, or obligations cited in the agreement. Plaintiff neither billed Suhr for the services nor communicated with Suhr regarding any of the activities performed by plaintiff under the agreement. Suhr never communicated with plaintiff regarding such activities. There was no evidence adduced at the trial to indicate that Suhr attempted to direct, determine, or control the performance of the duties and obligations of , itself constitute an evasion of the act and a for "transfer" thereunder, regulations requiring approval "embraces the conduct of the operation by a person other than the holder of the operating Under plaintiff's theory, a person could, with impunity, transport right. goods in interstate commerce without authority by stating that he was merely an agent conducting and controlling the affairs of his principal, the owner of the operating rights. Such a subterfuge is impermissible. Such a consequence would "... What cannot be done directly may not be done indirectly. If a carrier does not have authority to perform a certain operation, it cannot perform that service by leasing another carrier's rights . . . Plaintiff further seeks to sustain its position by citing case law, such as, Cox v. Bond Transportation, Inc. , wherein an interstate carrier that leases equipment is held responsible for the negligent operation of the equipment under 49 U.S.C. A. , $ 304(e), and the regulations promulgated thereunder. Since this action involves neither the lease of equipment nor the attempted recovery of a tort victim, the matters cited are not relevant to this action. It should be observed that there are certain exceptions enumerated in 49 C. F. R. , S 179. 1, and whether the present transaction qualified thereunder was neither established nor refuted. Even if the transfer of were unlawful as alleged by plaintiff, the operating rights by Suhr to Far-G- o the sanctions for such unlawful operation are specified in 49 U.S.C. A. , $322. Since the judgment of the trial court did not enforce the precise conduct made unlawful by the Act, this court will not provide a sanction, which the Act did not specify. The judgment of the trial court is affirmed. Costs are awarded to defendant, Suhr. Continental Bank and Trust Company v. Taylor, 23 Utah 2d 422, 427, 44 1. P. 2d 585 (1970); Restatement, Agency 2d, 2. 49C.F.R. , 179.1(a). 3. Tanksley Transfer Company Extension - Points in Four States, 110 I.C.C. 110 M.C.C. 674, 676-6(1969). Reports 674, 676-67- 7, 1. 77 4. 53N.J. 186, 249 A. 2d579 (1969). 5. ' General Freight Trans. Co. v. Riss 289 F. 2d 836, 842. A Company (C. A. 7th I960), o. WE CONCUR: F. Henri Henriod, Justice Far-G- o. Based on the foregoing facts, the trial court determined that plaintiff under the terms of the agency agreement and was was the agent of Far-G- o not the agent of Suhr. Suhr did not at any time ratify, codpne, or approve directly or by implication any of the acts of Far-G- o or plaintiff as being the acts of Suhr's agents. Suhr did not represent to third parties that plaintiff was Suhr's agent. There was no privity of contract between Suhr and plaintiff. to Suhr was not obligated to plaintiff for the default or failure of Far-G- o of the agency agreement including the comply with the terms and conditions obligation to make payment for the services rendered, which constituted the A. H. Ellett, Justice J. Allan Crockett, Justice R. L. Tuckett, Justice Financing Statements - Milo Baughman Design, Trly Sqr SLC to Zlons Frst Natnl Bk; machn 520 223 552 - Danny Lee & Nancy 4605 W. 5295 S. Krns to Thrft; furn Still, Intrlk - Milo Baughman Design Inc. Trly Sqr SLC to Zlons Frst Natl Bk; lnven Thrft; furn 532 - Joel & Connie Montoya, 708 S. 7th E. SLC to Dial Fin Co of prove; hhg 554 - Earle M. Schenck, 4631 Carnegie Tech, Krns to Natnl Fin Co; hh furn 521 223 535 F.O. Fin - Mac C. & Margaret Fullmer Box 886 Prk City to Dial Co of provo; hhg 553 152 equip 550 - Aaron B. 558 W. Blyl, 1938 Bryan to Intrlk Thrft; furn W. & 551 - Douglas A. Hendrlksen, 329 E. Maxwell Lane SLC to 559 Intrlk Thrft; furn Co; Madge Sndy to 556 - Bountiful Main Bntfl to Ave. SLC - Ivan J, N. 100 Jensen, Intrlk Mtrs, 2773 S. Equllease Corp; - William Baron, 69 N. 8ti to Natnl Fin Co; hhg SLC - Stephen A. Harder, 202 Bntfl to Natnl Fin furn S. 1300 E. |