Alterman Transport Lines, Inc. v. Yarborough

• Decision Date: 04 April 1973
• Docket Number: No. 42566,42566
• Parties: ALTERMAN TRANSPORT LINES, INC., et al., Petitioners, v. Jess YARBOROUGH et al., Respondents.
• Court: Florida Supreme Court

Page 34

276 So.2d 34

ALTERMAN TRANSPORT LINES, INC., et al., Petitioners, v. Jess YARBOROUGH et al., Respondents.

No. 42566.

Supreme Court of Florida.

April 4, 1973.

James E. Wharton, Gregory A. Presnell and Thomas C. Garwood, Jr., of Akerman, Senterfitt, Eidson & Wharton, Orlando, for petitioners.

Prentice Pruitt, Leon Keith Pafford, Tallahassee, and Sol H. Proctor, of Proctor & Cain, Jacksonville, for respondents.

ROBERTS, Justice.

By petition for writ of certiorari, we have for review Order No. 10052 of the Public Service Commission dated May 5, 1972, modifying its previous Order No. 9974, and granting the Amended Application of Refrigerated Transport, Inc. for extension of its Certificate No. 338 so as to authorize the transportation of food, food preparations, and foodstuffs requiring refrigeration when transported in vehicles equipped with mechanical refrigeration on irregular routes and schedules between all points in Florida and meat, meat products, meat by-products and packing house products requiring refrigeration from Madison, Florida, to all points in Florida and materials and supplies requiring refrigeration used in the process of or pertaining to the foregoing described commodities from points in Florida to Madison, Florida, and motor vehicles equipment with mechanical refrigeration on irregular routes and schedules, restricted against the transportation of commodities in bulk.

In the petition for writ of certiorari filed July 10, 1972, Petitioners also sought review of Order No. 10175 of the Commission dated June 29, 1972, wherein the Commission denied Petitioner Alterman Transport Lines, Inc. Petition for Reconsideration of Order No. 10052 and denied request for oral argument stating that,

'It has long been a policy of the Commission to entertain only one Petition for reconsideration of an order disposing of an application. Since the Commission has already considered one such petition in this docket, and because the instant pleading constitutes, in effect, a 'Petition for Reconsideration of a Petition for Reconsideration' it must be denied.'

Subsequent to the filing of the instant petition for writ of certiorari sub judice, this Court in accordance with an agreement of counsel entered an order in Case No. 42,566, Alterman Transport Lines, Inc. et al. v. Yarborough, dated September 6, 1972, temporarily remanding the cause to the Commission for further consideration of the petition for reconsideration.

Pursuant to the agreement of counsel and the order of this Court, the Commission by Order No. 10337 dated October 13, 1972, rescinded Order No. 10175 which had denied reconsideration without oral argument and scheduled argument on protestant's Petition for Reconsideration of Order No. 10052 for October 17, 1972. After hearing argument on Alterman's Petition for Reconsideration of Order No. 10052, the Commission denied the same in Order No. 10362 dated October 31, 1972, wherein it found that Order No. 10052 is not only correct as it relates to the facts in evidence, but that said order is in accordance with the laws of this State and the rules and regulations of this Commission and that the modification of Order No. 9974 by issuance of Order No. 10052, was indeed in furtherance of public convenience and necessity and that said order must be affirmed.

Originally, Petitioner contended that Order No. 10175 was erroneous because the Commission had failed to permit it to file a Petition for Reconsideration to Order No. 10052 or to have oral argument thereon. This Court upheld that view and remanded temporarily to the Commission. Oral argument was held as well as careful consideration given to Alterman's petition for reconsideration. Since the Commission rescinded Order No. 10175, afforded Alterman oral argument, and consideration of the petition, this matter is now moot and need no longer be considered by this Court.

Petitioner in addition contested Order No. 10052 on the basis that there was not competent, substantial evidence to support the order of the Commission granting the authority applied for by Refrigerated Transport Co., Inc., and that the Commission, therefore, erred in modifying its previous order. The Commission in Order No. 10052 sets forth in great detail the reasons for modification of its previous order and sets out a lengthy summary of testimony in support of the granting of Refrigerated's Amended Petition for Extension of Certificate No. 338. Twenty-two companies testified clearly and decisively in support of this application and the Commission summarized testimony of each of these companies in Order No. 10052.

Additionally, the Commission explicated that,

'Protestants were Alterman Transport Lines, Inc., Belford, Trucking Co., Inc., United Freight, Inc., Commercial Carrier Corporation and National Cold Transport, Inc. Alterman and Belford have applications pending to extend their certificates and United Freight, Inc. has an application for initial authority.

United Freight, Inc. presently holds no authority and therefore cannot perform any of the services required. Commercial Carrier Corporation's authority is limited to a warehouse at Auburndale. Refrigerated can presently transport frozen commodities from this facility. The authority to transport non-frozen commodities should cause little or no adverse effect on this carrier. National Cold Storage's authority is limited to Dade and Broward Counties. Refrigerated already has authority to transport most commodities in this area. The grant of this application will cause little or no adverse effect on National Cold Storage.

The applications of Refrigerated, Alterman and Belford are somewhat similar.

This Commission and the Supreme Court have recognized that when applications are filed simultaneously or near so, the testimony of the witness in each proceeding may be considered in the other. See Fleet Transport Co. of Florida v. Mason, 255 So.2d 516 (188 So.2d 294) and Redwing Carriers, Inc. v. Mayo, 255 So.2d 516.

The record of the Refrigerated...