B & M Trucking, Inc. v. Louisiana Public Service Commission, 60600

• Decision Date: 19 December 1977
• Docket Number: No. 60600,60600
• Citation: 353 So.2d 1323
• Court: Louisiana Supreme Court
• Parties: B & M TRUCKING, INC., et al. v. LOUISIANA PUBLIC SERVICE COMMISSION.

Page 1323

353 So.2d 1323

B & M TRUCKING, INC., et al. v. LOUISIANA PUBLIC SERVICE COMMISSION.

No. 60600.

Supreme Court of Louisiana.

Dec. 19, 1977.

Rehearing Denied Jan. 27, 1978.

Harold R. Ainsworth, New Orleans, for plaintiff-appellant.

Ernest C. Hunt, Jr., Hunt, Godwin, Painter & Roddy, Lake Charles, for intervenor-appellant.

Herman J. Mouton, Marshall Brinkley, Baton Rouge, for intervenor-appellee.

DIXON, Justice.

This case involves the Louisiana Public Service Commission's grant of a certificate of public convenience and necessity to American Vacuum Truck Company, Inc. authorizing it to transport by vacuum tank trucks over irregular routes certain commodities consisting primarily of liquid products used in the oil and gas business.

A hearing was held September 20, 1976 before the Commission with Vacuum Truck Carriers of Louisiana, Inc., B & M Trucking, Inc., Prudhomme Truck Tank Service, Inc., Gulf Coast Pre-Mix Trucking, Inc., Garret Oil Field Service, Inc. and Browning-Ferris Vacuum Services, Inc. intervening in opposition. An order was issued by the Commission on November 18, 1976, with one commissioner dissenting, and subsequently amended January 11, 1977, granting the authority, but limiting the requested statewide authority to an area within a seventy-five mile radius of Westlake, Louisiana. Petitions for rehearing or reconsideration of both the initial and amended orders were denied.

An appeal to the district court was taken and the Commission's order was affirmed.

On appeal to this court intervenors contend: (1) American was not properly before the Commission, and therefore its application for authority should not have been heard; (2) American did not sustain its burden of showing that the public convenience and necessity would be materially promoted as required by R.S. 45:164; (3) the present motor carrier service available to the public is adequate to meet its needs; (4) the Commission failed to provide a fair and impartial hearing since one commissioner expressed his disagreement with the law and jurisprudence and indicated his intention to grant the permit before any of intervenors' evidence was heard; and (5) intervenors were denied their constitutional right to fair and equal treatment, since American received favored treatment based on race.

1. American's appearance before the Commission.

American submitted its application for authority with the Commission on April 19, 1976; its corporate charter, however, was not filed with the Secretary of State until over a month later. Intervenors contend that since American was not incorporated at the time the application was filed that there was no "applicant" and the Commission's grant of authority would be null and void.

American attained corporate status over three months before the hearing was held and over seven months before the Commission rendered its order granting the authority. This "after-acquired status," although untidy, should not be fatal to the application. A contrary ruling would only result in an expensive duplication of proceedings already long finished, and produce only unnecessary delays. Neither intervenors nor the public has been harmed.

2. Did American sustain its burden of showing that the public convenience and necessity would be materially promoted?

3. Is the present motor carrier service adequate to meet the needs of the public?

The answers to these questions require a review of the evidence adduced before the Commission.

American presented five witnesses in support of its application. Ronald Griffith, president of American, which was to be located in Lake Charles, testified that in his work as an oil field contractor he was informed by his gang foreman that there were some delays in obtaining vacuum truck service in order to move salt water or mud from a storage area. Only two specific instances of delay were cited. In one instance in early 1974, W. C. Pickens Company of Dallas, Texas utilized Griffith's services to clean out a mud tank by hand when Pickens was unable to obtain a vacuum truck. Griffith could not specify the date nor could he say what companies or how many had been called. In the other instance, Griffith was working for Union Oil of California sometime between February and May of 1976 backfilling a pit when the need for a vacuum truck to remove fluid arose. Calls were made to a vacuum truck service in Lake Charles but, having been told no trucks were available, Union Oil was forced to shut down operation until a vacuum truck was provided. Again he could be no more specific on dates. He testified that any delay would be costly since the company would continuously be billed. It was also established that at least five other vacuum services are located in the Lake Charles-Lafayette-Abbeville area, all within the seventy-five mile radius of Westlake where American was given its authority to operate, but only one certified to operate in Lake Charles itself.

Of the four public witnesses called to testify on American's behalf, two stated they had had no trouble with existing services and had experienced no delays. However, both Mario Fattori, the division traffic supervisor for Amoco Production Company, and George Donlevy, the senior transportation analyst in the traffic department of Shell Oil Company, testified that they would make use of American's services if the certificate were granted. Fattori expressed the desire to have more service available in the event an emergency arose, while Donlevy stated the competition would tend to let the rates seek an equitable level.

R. L. Packer, the district superintendent for Sohio Petroleum Company, testified in American's behalf. He stated that approximately 25% Of the times when a vacuum truck was needed the company would have to wait until that night or the next day when one would become available. This kind of delay resulted in substantial expense. Packer could not give any specific dates but stated the delays occurred within the first four months of 1976. He did testify, however, that 75% Of the time the company could anticipate their need in advance and that in the four or five months prior to the hearing fewer problems were experienced since they were making the necessary advance arrangements. Packer also could not state what companies he had called, but only that when the trouble was in Lake Charles, Browning-Ferris would normally be called first.

George Cobb, the district production superintendent for Mobil Oil Company, testified that in the fifty to seventy-five times vacuum trucks were needed over a four month period in the Lockport Field outside Lake Charles, his foreman had to wait four to six times. It was intimated that Browning-Ferris, the company located in Lake Charles, had been called on these instances, however no specific dates could be offered.

Four witnesses appeared on behalf of intervenors. Edward M. McLandrich, president of B & M Trucking, Inc. of Lafayette, testified that his six vacuum tanks and seven tractors were not fully utilized but would sit idle 70% Of the time. Additional business was needed. During the period in which the Sohio and Mobil representatives complained of a failure in service, B & M had never been called. He stated he could get equipment to the Lake Charles area where the problems discussed above arose in two to two and one-half hours. In the event an emergency arises, trucks are pulled off of jobs that are not as pressing and sent to where the need is greater; the consumer, however, would have to pay any additional expense incurred from transporting a truck from a job site that was further than the Lafayette terminal to the needed location.

Robert Hollier, the general manager of Gulf Coast Pre-Mix Trucking, Inc., testified that the company has three terminals, one located in Abbeville where twenty-two vacuum trucks are kept. He stated that, based upon a twenty-four hour day, seven day week, the company's equipment was only fully utilized 25 to 30% Of the time and that additional business was needed. When trucks were unavailable they were called off of other jobs, or if none could be obtained in that way, a competitor was called. Gulf Coast does not pass the added costs on to the consumer. It was admitted that some delays were experienced. Hollier also testified that for six months in 1973 five trucks were moved to the Lake Charles area but were moved out for lack of work.

Wilbur Ducharme, the general manager of Prudhomme Tank Truck Service, testified that ten vacuum trucks were located at the company's Lafayette terminal and that there was 30% Utilization of equipment based on a twenty-four hour day, seven day week. Prudhomme had been calling on customers to obtain more business.

Walter Elkins, the branch manager of Browning-Ferris Industries Vacuum Services, Inc., a publicly held corporation, testified that of the eighteen trucks located in Lake Charles sixteen were available. Elkins appeared before the Commission with detailed logs in order to refute or respond to specific charges of failures in service; as previously noted, American's witnesses could not designate times when delays were experienced. In the year from May, 1975 to the end of April, 1976, when American filed its application, and based on a twenty-four hour day, there was 31% Utilization. Using an eight hour day the utilization would reach 93%.

Much discussion followed on the competency of the utilization figures used by intervenors. Elkins testified that his company remains on a...