State v. E. A. Holder, Inc.

559 S.W.2d 694, 1977 Tex. App. LEXIS 3706
CourtCourt of Appeals of Texas
DecidedDecember 8, 1977
DocketNo. 5087
StatusPublished

This text of 559 S.W.2d 694 (State v. E. A. Holder, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. E. A. Holder, Inc., 559 S.W.2d 694, 1977 Tex. App. LEXIS 3706 (Tex. Ct. App. 1977).

Opinion

WALTER, Justice.

This is a suit to determine the scope of authority of Specialized Motor Carrier Certificate, No. 5984, issued to E. A. Holder, Inc., by the Texas Railroad Commission. The suit was instituted by the State of Texas against Holder at the request of the License and Weight Division of the Texas Department of Public Safety.

The State contends Holder was not authorized by its Specialized Motor Carrier Certificate, No. 5984, to transport gypsum wallboard and sheathing for hire; therefore, being in violation of the Motor Carrier Act, Tex.Rev.Civ.Stat.Ann. art. 911b. The trial court disagreed and we affirm the trial court’s decision.

Holder was hired by National Gypsum Company, a manufacturer, to transport gypsum material to different points in Texas. Once manufactured, National placed the wallboard and sheathing on pallets or skids of varying sizes depending upon the order instructions of the consignee. In servicing its account with National, Holder transported the material on flatbed tractor-trailer trucks. A forklift was used in loading and unloading the product.

The issue before this court is the construction of terms used in Holder’s Specialized Motor Carrier Certificate. In pertinent part, Holder’s certificate authorizes the transportation of “heavy bridge timbers, steel and heavy building materials used in the construction of bridges and the framework of buildings . . . ” We must determine whether the gypsum wallboard and sheathing are “heavy building materials” and if these materials are used in the “framework of buildings.”

The Texas Motor Carrier Act, Tex.Rev. Civ.Stat.Ann. art. 911b, was amended in 1941 to provide for the granting of specialized motor carrier certificates authorizing the transportation of property requiring the use of specialized equipment in the transportation and handling thereof. The Act in part states:

“Property requiring specialized equipment is limited to . (4) commodities which by reason of length, width, [696]*696weight, height, size or other physical characteristics require the use of special devices, facilities or equipment for their loading, unloading and transportation.”

The general rule for construing the authority of a motor carrier’s certificate was established in W. J. Dillner Transfer Co., 79 M.C.C. 335 (1959), aff’d., W. J. Dillner Transfer Co. v. I. C. C., 193 F.Supp. 823 (W.D.Pa.1961), aff’d. mem.; W. J. Dillner Transfer Co. v. United States, 368 U.S. 6, 82 S.Ct. 16, 7 L.Ed.2d 16 (1961).

Under its certificate, Dillner was authorized to engage in the transportation of “heavy machinery and such commodities which because of their weight and size require special equipment.” The Interstate Commerce Commission used the “inherent nature” of the commodity as a standard to determine whether the rights of carriers under a heavy hauler’s certificate include a commodity when bundled, packaged or palletized.

In finding Dillner lacked authority to transport certain bundled articles of iron and steel and palletized firebrick, the Commission stated:

“In bundling, aggregating or palletiz-ing, it should be the general rule of construction (1) that the individual ‘commodity itself’ is the controlling consideration as respects a carrier’s authority; (2) that the limited exception which the Black. case, 64 M.C.C. 443, represents, where commodities are bundled for protection or as otherwise required by their ‘inherent nature’, must be maintained within its strictest limits; (3) that the minimum bundle which is required by the ‘inherent nature’ of the commodity is the size or type of bundle which must be considered in any determination whether necessity exists for the use of special equipment; and (4) that in order reasonably to maintain these limits it shall be presumed, in absence of sound basis for concluding to the contrary, that commodities tendered to carrier, in bundles or aggregations, are within the general rule and not within the limited exception thereto.”

This general rule and exception were recognized by the Supreme Court of Texas in State v. Bilbo, 392 S.W.2d 121 (Tex.1965). Bilbo’s limited common motor carrier’s certificate authorized the transportation of “heavy building materials, machinery and supplies between all points in Texas”. The commodities transported by Bilbo consisted in part of asphalt shingles on 2,000-lb. pallets, rolls of asphalt siding on 2,000-lb. pallets and bundles of asbestos shingles on 2,000-lb. pallets. The court ruled Bilbo was not authorized to transport the commodities under his certificate because there had been no showing that palletization of the materials was required for their protection or as otherwise required by their inherent nature.

The inherent nature exception to the general rule established in Dillner is found in R. Q. Black, 64 M.C.C. 443 (1955). The application of this exception requires close examination of the commodities in question.

In Black, the investigation concerned, in part, pieces of aluminum sheet metal. The individual sheets of steel were 100 inches long and either 20 or 48 inches wide. The sheets were loaded on pallets and bound, 100 sheets to the pallet, by steel bands. Loading and unloading was done by crane and in some instances by heavy duty forklift trucks. The sheet metal was sold in such bundles. This was the “customary method of handling by the manufacturer”. Black, at 445. The Interstate Commerce Commission determined that bundling was required by the inherent nature of the commodity and sustained the carrier’s authority to transport the sheet metal. The Commission said:

“Single sheets are unstable, subject to bending or other damages, and, having in mind their size, awkward or impossible to handle without bundling.”

We hold the same considerations apply to the handling and transportation of gypsum wallboard and sheathing, thereby satisfying the inherent nature test.

The gypsum material in the instant case was loaded on pallets, twenty (20) to one hundred (100) pieces to the pallet, depending upon the customer’s order instructions. [697]*697The most common palletized unit ordered was fifty (50) pieces. The weight of each pallet ranged from 1,700 pounds to 3,000 pounds, requiring a forklift for loading and unloading. The material was four (4) feet wide and either eight (8) or twelve (12) feet long.

The evidence shows that two pieces of the gypsum wallboard is the “limit” of what two people can carry “without knocking all of the corners off of it”. We hold the inherent nature of the commodity requires it to be palletized to protect it from being damaged. As palletized, it is necessary to load and unload the gypsum material using special equipment. A forklift qualifies as special equipment “so long as the commodity itself is otherwise authorized”. State v. Bilbo, 392 S.W.2d 121 (Tex.1965).

Once the inherent nature of the commodity is established, requiring aggregation on pallets, additional factors may be considered to determine the authority of the heavy hauler’s certificate.

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Related

Martinez v. Delta Brands, Inc.
515 S.W.2d 263 (Texas Supreme Court, 1974)
In Re King's Estate
244 S.W.2d 660 (Texas Supreme Court, 1951)
W. J. Dillner Transfer Co. v. Interstate Commerce Commission
193 F. Supp. 823 (W.D. Pennsylvania, 1961)
Dillner Transfer Co. v. United States
368 U.S. 6 (Supreme Court, 1961)
STANDARD DRUG CO. INC. v. General Electric Co.
368 U.S. 4 (Supreme Court, 1961)
State v. Bilbo
392 S.W.2d 121 (Texas Supreme Court, 1965)
Aero Trucking, Inc. v. United States
346 F. Supp. 826 (W.D. Pennsylvania, 1966)

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559 S.W.2d 694, 1977 Tex. App. LEXIS 3706, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-e-a-holder-inc-texapp-1977.