Arkansas Motor Freight Lines v. Howard

• Decision Date: 18 April 1955
• Docket Number: No. 5-646,5-646
• Citation: 224 Ark. 1011,278 S.W.2d 118
• Parties: , 9 P.U.R.3d 466 ARKANSAS MOTOR FREIGHT LINES, Inc., et al., Appellants, v. W. D. HOWARD et al., Appellees.
• Court: Arkansas Supreme Court

Page 118

278 S.W.2d 118

224 Ark. 1011, 9 P.U.R.3d 466

ARKANSAS MOTOR FREIGHT LINES, Inc., et al., Appellants, v. W. D. HOWARD et al., Appellees.

No. 5-646.

Supreme Court of Arkansas.

April 18, 1955.

Rehearing Denied May 16, 1955.

Thomas Harper, Ft. Smith, for appellants.

G. Lawrence Blackwell, Pine Bluff, Ed. E. Ashbaugh and Louis Tarlowski, Little Rock, for appellees.

GEORGE ROSE SMITH, Justice.

This appeal brings up for review an order by which the Public Service Commission approved a partnership's application for permission to sell its motor carrier business to the appellees. The statute provides that such a sale shall not be authorized if the Commission finds that the sale will be inconsistent with the public interest or that the seller has not rendered reasonably continuous service prior to the application for transfer. Ark.Stats.1947, § 73-1715. The appellants, competing carriers who resisted the application for approval of the sale, contend that the Commission was not justified by the evidence in holding that either of these statutory conditions had been satisfied.

The concern being sold is a small enterprise that the selling partnership has been operating under the trade name of Atlas Transfer & Warehouse Company. On January 8, 1953, after litigation, the firm was issued a certificate by which it was licensed as a common carrier of general commodities, household goods, and heavy machinery. See Arkansas Motor Freight Lines, Inc., v. Johnson, 221 Ark. 157, 252 S.W.2d 814. By the terms of the certificate Atlas was authorized to operate as a motor carrier upon designated highway routes that extend into every section of the State.

Although the certificate authorizes a wide range of operations, both as to the commodities to be carried and the territory to be covered, Atlas has been unable to exercise to any great extent the privileges conferred by its permit. The company has continuously maintained only one terminal, located at Pine Bluff, and its rolling stock at the time of the application to sell consisted of one truck, three tractors, and four semi-trailers. During the thirteen months that elapsed between the issuance of the certificate and the Commission's hearing Atlas had carried only thirty-nine shipments of freight, although it is shown that the company advertised for business and never refused any cargo that was tendered to it. The thirty-nine shipments included thirty movements of household goods, five of machinery, and four of timber. From the record it may be assumed that timber is classed as a general commodity, as it is obviously not within the other two classifications that were named in Atlas's certificate.

Upon this proof the Commission found that Atlas has been rendering reasonably continuous service. We are not willing to say that the Commission was in error. Inasmuch as the Commission's knowledge of its own specialized field is undoubtedly superior to ours, its judgment on a question of fact is not to be set aside unless clearly against the weight of the testimony. Wisinger v. Stewart, 215 Ark. 827, 223 S.W.2d 604. No difficult problems of law were presented to the Commission in this case. Whether there is a need for the whole range of facilities that might be made available under the Atlas certificate is not the question, for the issue of public convenience and necessity was determined when the permit was granted. Nor was Atlas required to show that it had fully utilized the possibilities lying at its disposal; no law or regulation requires that a motor carrier systematically travel over all its territory with trucks that are empty for want of business.

The appellants take the position that the statutory requirement of reasonably continuous service is intended to prevent a dormant franchise from being offered for sale to the highest bidder. This may be true, but the Commission was warranted in concluding that the Atlas certificate has not been dormant. This little company, with relatively modest assets, held itself in readiness to render service, advertised its existence, and accepted whatever business was offered. Under the statute complaint might have been made that it was not transporting 'all of the commodities authorized * * * over all of the routes authorized', Ark.Stats. § 73-1715; but no such complaint was lodged by the Commission, the public, or any competing carrier. In this proceeding the issue is narrowed to whether the company's service has been reasonably continuous; the Commission's affirmative answer is not contrary to the evidence.

Not much need be said with respect to the contention that the proposed transfer will be inconsistent with the public interest. The protestants'...