Auto Convoy Co. v. Railroad Commission of Texas

• Decision Date: 03 April 1974
• Docket Number: No. B--4241,B--4241
• Citation: 507 S.W.2d 718
• Parties: AUTO CONVOY COMPANY et al., Appellants, v. RAILROAD COMMISSION OF TEXAS et al., Appellees.
• Court: Texas Supreme Court

Page 718

507 S.W.2d 718

AUTO CONVOY COMPANY et al., Appellants, v. RAILROAD COMMISSION OF TEXAS et al., Appellees.

No. B--4241.

Supreme Court of Texas.

April 3, 1974.

Robinson, Felts, Starnes & Nations, Mert Starnes and Paul D. Angenend, Lanham, Hatchell & Sedberry, Thomas F. Sedberry and Joe T. Lanham, Austin, for appellants.

John L. Hill, Atty. Gen., Rex H. White, Asst. Atty. Gen., Austin, James W. Hightower, Dallas, Doherty & Robertson, James M. Doherty, Austin, for appellees.

DANIEL, Justice.

This is a direct appeal by Auto Convoy Company and United Transports, Inc., from a judgment of the trial court sustaining an order of the Railroad Commission granting Jean Eddy a specialized motor carrier certificate.

Jean Eddy's application for authority to transport automobiles from Dallas and Grand Prairie to points in Texas and vice versa was granted in part by the Commission, being limited to used vehicles to and from Grand Prairie as follows:

'TO TRANSPORT: USED AUTOMOBILES AND USED PICKUP TRUCKS from Grand Prairie, Texas, to points in Texas, and vice versa, requiring the use of specialized equipment for the loading, unloading and transporting thereof.'

Both Auto Convoy and United Transports, hereinafter referred to collectively as Appellants, held broader permits from the Commission authorizing each to transport 'New and used motor vehicles between all points in Texas by both truck away and drive away methods over irregular routes, using all highways' of the State. Both protested Jean Eddy's application in all proceedings before the Commission, and both joined in this suit against the Commission and Eddy to declare her permit invalid and to enjoin any operations thereunder. They challenged the Commission's order in the trial court and here on two grounds: (1) that it is not supported by substantial evidence, and (2) that it does not contain findings of fact as required by law. The trial court found against Appellants on both points and entered a take nothing judgment against them. We affirm.

Jean Eddy's application, the opposition, and the evidence, all center upon the need for transportation service for used automobiles and pickups to and from the Big 'D' Auto Auction held each week at Grand Prairie. There are basically two auctions conducted each Tuesday; the first being referred to as the 'Chrysler' or 'CLC' sale at which only current or last year models are sold; and the second being known as the 'Consignment Sale,' at which older models are sold. Colectively, these two sales handled 18,000 to 20,000 automobiles in 1973. Appellee, Jean Eddy, testified that she initiated the Big 'D' Consignment Sale, owned it for about four years until she sold it in 1971 or 1972, and then worked as office manager for the sale until March of 1973. While owner of the Big 'D' she had owned and operated two automobile transport trucks and trailers for transporting her own automobiles. It was her contention and that of her car dealer witnesses that the Big 'D' sales and Grand Prairie were not adequately served by existing and available specialized motor carriers, while Appellants' witnesses testified that existing services were adequate and satisfactory.

In this appeal, it is logical that we should first examine the fact findings to determine whether they meet the statutory requirement. One of their purposes is to assist the courts in reviewing the evidence and the action of the Commission. Morgan Drive Away, Inc. v. Railroad Commission, 498 S.W.2d 147 (Tex.1973); Miller v. Railroad Commission, 363 S.W.2d 244 (Tex.1962). Sec. 5a(d) of Article 911b, Vernon's Ann.Civ.St., provides:

'The order of the Commission granting said application and the certificate issued thereunder shall be void unless the Commission shall set forth in its order full and complete findings of fact pointing out in detail the inadequacies of the services and facilities of the existing carriers, and the public need for the proposed service.'

The Commission Examiner, after a ten page summary of the evidence, made the following relevant fact findings:

'This examiner finds that existing service to and from Grand Prairie is not adequate for the movement of used automobiles and used pickup trucks. The record reflects that a large auction sale, namely Big 'D' Auto Auction is located in Grand Prairie. The record reflects that late model used vehicles are sold at the so called Chrysler sale, whereas older second hand vehicles are bought and sold at the consignment sale. This examiner finds that the existing carriers are performing an adequate service for those vehicles which are transported to and from the Chrysler sale whereas they are not offering an adequate service for vehicles transported to and from the consignment sale. Those individuals who have a need to transport vehicles to and from the consignment sale are being forced to use tow bars and illegal carriers to transport their vehicles at the present time.'

The Commission Order of April 6, 1973, adopted the findings of the Examiner and made them a part of the Order, except insofar as they conflict with other findings which the Commission proceeded to make, in part as follows:

'THE COMMISSION FURTHER FINDS, contrary to the Examiner's Report (p. 11), that the existing service offered by Protestants for transporting late model used cars (CLC's) to and from the 'Chrysler Sale' at Grand Prairie, Texas is inadequate based on the testimony of Applicant's witnesses who deal at the 'Chrysler Sale' as well as the 'Consignment Sale.' It is expressly found that on August 8, 1972, that witness Helgren was unable to get 6 units purchased at the 'Chrysler Sale' transported from Grand Prairie without a delay of 7 to 10 days and that he experienced like responses from both Protestants in January, February, March and September, 1972. It is further expressly found that witness Helgren has never been able to obtain reasonably prompt service from either United or Auto for similar shipments in ten years of doing business at Big D Auto Auction. The Commission finds that witness Lawless also purchases from the 'Chrysler Sale' and the 'Consignment Sale' and in July, 1972, was unable to get 9 vehicles moved from Grand Prairie without a 7 to 10 day delay after contacting both Protestants. It is found that witness Barker called both Protestants for 10 days commencing on or around March 1, 1972, to get a group of 18 'lease cars' (CLC's) that had been purchased in Grand Prairie shipped to Amarillo and Abilene and was unable to obtain service.

'THE COMMISSION FURTHER FINDS from the record that such delays as experienced by Applicant's witnesses result in a loss of revenue to them as dealers in 'CLC' vehicles purchased at Grand...