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Quick Aviation Co. v. Kleinman

Supreme Court of Arizona

June 14, 1943

QUICK AVIATION COMPANY, a Corporation, Appellant,
v.
CONRAD J. KLEINMAN, Administrator of the Estate of J. H. MARINE, Also Known as JACK MARINE, Deceased, Substituted for J. H. MARINE, Doing Business as MARINE AIR SERVICE, Appellee

APPEAL from a judgment of the Superior Court of the County of Maricopa. C. C. Faires, Judge. Judgment affirmed.

Messrs. Armstrong, Kramer, Morrison & Roche and Messrs. Rawlins & Rawlins, for Appellant.

Messrs. Clark & Clark, for Appellee.

OPINION

Page 898

McALISTER, C.J.

This is an action by the plaintiff, Quick Aviation Company, a corporation, against Conrad J. Kleinman, administrator of the estate of J. H. Marine, deceased, who in his life time did business as the Marine Air Service, asking that defendant and his agents be permanently restrained from transporting by airplane property known as insecticides and germicides used in the treatment of farm products [60 Ariz. 431] throughout the State of Arizona and that it have judgment against the defendant for the sum of $2,000 as damages for transporting these articles which he had delivered up to that time.

It appears that on the 4th day of January, 1938, George C. Quick, after a hearing, obtained from the corporation commission a certificate of convenience and necessity, which reads:

"... as a common motor carrier for the transportation of, for compensation, freight (known as Insecticides and Germicides) used in the treatment of farm products via airplanes throughout the State of Arizona."

Subsequently, on the 9th day of March, 1939, this certificate was transferred to the plaintiff corporation, who has acted and continued to act under the rights and privileges granted it by the certificate.

The president of the company, Mr. Quick, testified that he was a pilot, and that the company owned two planes, four airplane engines, a truck and an automobile.

The plaintiff offered in evidence an application for a certificate of convenience and necessity filed by J. H. Marine on May 17, 1939, later denied by the corporation commission, for the purpose of proving that he did not have a certificate of convenience and necessity for the operation of airplanes in Arizona for compensation. While this was labeled an application for a certificate of convenience and necessity, it was in fact an application for a contract permit. The ruling on the offer was reserved, however, and in the end, we take it, its admission was denied.

The deceased, it appears from the evidence introduced by plaintiff, dusted the farms of five different people located in different sections of the valley in 1939, and the evidence shows that the process of dusting was performed substantially as follows: The insecticide, [60 Ariz. 432] sulphur and Paris green, was usually purchased by the farmer and delivered to his farm, either by the dealer or himself, or as near it as it was possible for the airplane to have a place to land and take off. At that place, which was two or three miles, more or less, from the farm to be dusted, the plane was loaded with the insecticide. It then took off for the farm to be dusted, and when the supply of material was exhausted the plane returned to the loading station for reloading. In one of the five instances, the case of Allen Belusi, the plane of Marine took the materials from the City of Phoenix and went directly to the farm and dusted it.

All of these parties testified that no part of the price charged was for transporting or hauling the insecticide from the near-by field to the farm to ...


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