Sunset Express v. Gulf, C. & S. F. Ry. Co.

• Decision Date: 19 September 1941
• Docket Number: No. 14268.,14268.
• Citation: 154 S.W.2d 860
• Parties: SUNSET EXPRESS, Inc., v. GULF, C. & S. F. RY. CO. et al.
• Court: Texas Court of Appeals

Page 860

154 S.W.2d 860

SUNSET EXPRESS, Inc., v. GULF, C. & S. F. RY. CO. et al.

No. 14268.

Court of Civil Appeals of Texas. Fort Worth.

September 19, 1941.

Rehearing Denied October 24, 1941.

Appeal from District Court, Tarrant County; Frank P. Culver, Jr., Judge.

Suit by the Gulf, Colorado & Santa Fe Railway Company and others against Sunset Express, Inc., for injunctive relief, wherein other parties intervened as plaintiffs. From a judgment for plaintiffs and interveners, defendant appeals.

Affirmed.

B. A. Carter and Penrose B. Metcalfe, both of San Angelo, and A. M. Felts, of Austin, for appellant.

Rawlings & Sayers and Nelson Scurlock, all of Fort Worth, for appellees (interveners) W. A. Johnson, d.b.a. Johnson Motor Lines, Merchants Fast Motor Lines, Inc.

Terry, Cavin & Mills, of Galveston, Baker, Botts, Andrews & Wharton, of Houston, R. S. Shapard and C. C. Huff, both of Dallas, Thompson & Barwise, of Fort Worth, Andrews, Kelley, Kurth & Campbell, of Houston, Albert G. Walker, of Austin, Ralph W. Currie, of Dallas, and Herbert L. Smith, of Austin, for appellees.

McDONALD, Chief Justice.

In 1939, C. D. Sanders and W. P. Jones obtained a certificate of convenience and necessity from the Railroad Commission, authorizing them to operate a motor common carrier service from Dallas and Fort Worth to Brady and Mason, the authority granted, in the words of the certificate, being as follows:

"To operate a motor carrier company over the following public highways of Texas * * * from Dallas to Fort Worth via highways 114 and 121; thence from Fort Worth to Brady via State Highway No. 10 to Brownwood and State Highway No. 23 from Brownwood to Brady and from Brady to Mason via State Highway No. 9; operating with closed doors from Fort Worth to Brady and serving only the points of Brady and Mason on freight out of Fort Worth and Dallas, using in said operation three trucks."

This certificate was transferred to defendant, Sunset Express, Inc., to whom was issued a certificate containing the same authority as that granted to Sanders and Jones.

It is stipulated by the parties that the defendant, Sunset Express, Inc., is soliciting freight in Dallas and Fort Worth in less than truck loads, and in semi-trailer loads, and is transporting said freight to Brady Texas, where it is interchanged with the Sunset Motor Lines, Inc., another concern, to be hauled to points beyond Brady and Mason. It is also stipulated that in cases where an entire trailer load of freight has been gathered in Dallas and Fort Worth for shipment to points beyond Brady, the trailer itself is interchanged at Brady and is handled by the Sunset Motor Lines to the points beyond Brady.

The plaintiffs, who are competing railroads, and interveners, who are competing motor common carriers, brought this suit in the District Court of Tarrant County for the purpose of, and obtained a judgment, perpetually enjoining the defendant "from transporting property for hire by motor vehicle over the public highways of this State * * * except the transportation for hire of freight out of Dallas and Fort Worth, destined to Brady or Mason * * *."

The defendant has appealed, contending, (1) that the District Court of Tarrant County had no jurisdiction to entertain the suit because the exact controversy was then pending before the Railroad Commission, (2) that plaintiffs and interveners had an adequate remedy at law, in that they could have applied to the Railroad Commission for relief, the defendant further contending in this respect that the Railroad Commission had exclusive jurisdiction in such case, (3) that plaintiffs and interveners show no justiciable interest because their pleadings fail to show whether the freight hauled is intrastate or interstate shipments, (4) that the record fails to show any restriction prohibiting defendant from interchanging freight with connecting carriers at its termini.

Defendant's contentions will be discussed in the order named.

The jurisdiction, authority and functions of the Railroad Commission, with respect to motor common carriers, have been fully discussed in the decisions of the courts of this State, some of which are cited herein. We are referred, of course, to the provisions of the Statutes commonly designated as Art. 911b, Vernon's Annotated Civil Statutes, governing motor common carriers.

We do not consider that this controversy was pending before the Railroad Commission, at the time this suit was filed, in such way as would oust the jurisdiction of the District Court of Tarrant County. The facts are that in February, 1940, Walton D. Hood, as Law Enforcement Officer and Chief of Inspectors of the Railroad Commission, filed with the Commission a motion requesting the Commission to construe the certificate in question to determine whether the defendant had authority to transport freight consigned to points beyond its termini, Brady and Mason. This motion was dismissed by the Railroad Commission, apparently for want of prosecution by any one, on September 10, 1940. Defendant Sunset Express, Inc., filed with the Commission a motion praying for a reconsideration of the order of dismissal, the effect of which was to ask the Commission to determine whether defendant had authority, by interchanging freight with connecting carriers, to transport freight consigned to points beyond Brady and Mason. This motion was filed on September 28th, and on the same day the Commission entered an order reciting that it appeared to the Commission that it should give consideration to the matters contained in the motions of Hood and of the defendant, and that the Commission "retains and will continue to retain jurisdiction of the subject matter of said motions, and of the order of September 10th, 1940, until such time as the Commission can give further consideration to said order and to the motion filed by Sunset Motor Lines and Sunset Express, and the Commission expressly retains jurisdiction of all of said matters until further orders of the Commission."

The record before us fails to show that any motion was filed by Sunset Motor Lines, further than the reference to such a motion, which has just been recited.

The record contains a copy, agreed to be correct, of the rule of the Railroad Commission providing that motions for new trials shall be filed within 20 days.

The suit on appeal was filed on September 16, 1940.

Appellant vigorously insists that by reason of the matters just mentioned, the exact controversy involved in this suit was pending before the Railroad Commission, and was undisposed of, at the time this suit was brought and at the time judgment was rendered in the District Court of Tarrant County. Appellant appears particularly to rely upon Sect. 20 of Art. 911b, which provides that appeals from orders of the Railroad Commission may be taken only to the District Court of Travis County, and upon such court decisions as West Texas Compress & Warehouse Co. v. Panhandle & S. F. Ry. Co., Tex.Com.App., 15 S.W.2d 558; Shupee v. Railroad Commission of Texas, 123 Tex. 521, 73 S.W.2d 505; Railroad Commission of Texas v. Brown Express, Tex.Civ.App., 106 S.W.2d 327; Sunset Truck Lines v. Railroad Commission of Texas, Tex.Civ.App., 134 S.W.2d 373; and other cases which are cited in the decisions just mentioned.

But, in our opinion, none of the cases relied upon by appellant is in point here.

While it is true that the interpretation officially placed on an order or rule by the Commission becomes a part of the rule, West Texas Compress & Warehouse Co. v. Panhandle & S. W. Ry. Co., Tex.Com.App., 15 S.W.2d 558, it is our opinion that such a situation is not presented in the case on appeal. The Railroad Commission does not sit as a court, to construe the effect of final orders theretofore issued by the Commission. The rights of all parties in the present suit are fixed by the terms of the certificate of convenience and necessity, along with, perhaps, such general rules and orders of the Commission as may be applicable to certificates of this type. A hearing on the motion of Walton Hood and on the motion for rehearing filed by defendant, could not serve to enlarge the authority granted under the certificate of convenience and necessity. An enlargement of such authority would have to be based upon another hearing of convenience and necessity. Railroad Commission v. Red Arrow Freight...