Public Services Commission v. Kolb's Bakery & Dairy, Inc.

Delaplaine, J., delivered the opinion of the Court. This is an appeal from a decree of the Circuit Court for Carroll County enjoining the Public Service Commission of Maryland from enforcing an order which would prevent Kolb’s Bakery and Dairy, Inc., the appellee, a corporation located in Baltimore, in the business of pasteurizing, bottling, and selling milk, from “collecting, hauling and conveying to its dairy by its own motor vehicle transportation its fluid milk supply which is purchased from the producers of milk whose farms are located along the routes served by the intervenors, Wilbur F. Miller, trading as Snyder’s Express, and the Tidewater Express Lines, Inc., under subsisting permits heretofore issued by said Commission.” - Miller, trading as Snyder’s Express, a carrier authorized to haul freight by motor truck, filed a complaint with the Commission under Code [Supp. 1935], art. 56, sec. 262A, alleging that the appellee had ben picking up milk of shippers on his franchise route and hauling the milk without a permit, thereby infringing unlawfully on the rights granted to him by the Commission. The Tidewater Express Lines, Inc., another carrier, intervened as a complainant in the proceedings. The Commission held that the motor vehicle operations complained of were subject to the Public Freight Motor Vehicle Law, and ordered the appellees to cease the operations.

The dairy company thereupon filed a bill of complaint under Code, art. 23, sec. 404, praying that the Commission be enjoined from enforcing its order. Miller and the Tidewater company intervened as defendants. The defendants filed combined demurrers and answers to the bill of complaint. No testimony was offered other than the record before the Commission.

The court over-ruled the demurrers and issued the injunction sought by the dairy company. ¹⁹⁴ The question in this case is whether the dairy company was hauling its own milk, or whether it was engaged in hauling milk for hire. The company insisted that its driver purchased the milk from the producer at the farm. Up until June 30th, 1938, the driver made an inspection of the milk for odor and appearance as well as for temperature; but after the Health Department of Baltimore City ordered the company to stop removing lids from the cans until after they arrived at the dairy, the company addressed a letter to the producers, announcing that after June 30th, 1938, the driver would merely test the milk for temperature by feeling the outside of the can. The company stated in this letter: “Upon loading the milk on our truck it becomes our property, and any loss that may thereafter occur through spoilage, accident, or in the event the milk should turn out to be bloody or of bad odor, it will be our loss. * * * We want it understood, all reports to the contrary, that we are not engaged in the transportation business, but are purchasing our milk from you at your farm to assure ourselves not only of the quality of the milk that we use at the dairy, but for the further reason that we desire to pick out the person with whom we deal.” It is clear from the announcement that the company’s purpose was to buy the milk from the producers at the farm.

There was testimony indicating that, prior to June 30th, 1938, some milk with garlic or other defects had not been paid for by the company; however, any such defects were waived by the positive language of the letter to the producers. After that time any loss occurring after the milk was loaded on the truck was the loss of the dairy company. Reliance was placed by the appellants upon the decision of this court in Public Service Commission v. Western Maryland Dairy, 150 Md. 641 , 135 A. 136 ; but in that case the milk was consigned to the Maryland State Dairymen’s Association, but with a fixed charge for transportation according to zones, and the milk was then sold by the association to the dealers, including the Western ¹⁹⁵ Maryland Dairy. The amount of