Barnett v. Movers Conference of Mississippi, Inc., 44595
| Decision Date | 06 November 1967 |
| Docket Number | No. 44595,44595 |
| Citation | 203 So.2d 584 |
| Parties | James M. BARNETT and Mrs. James M. Barnett, d/b/a Barnett's Moving & Storage, v. MOVERS CONFERENCE OF MISSISSIPPI, INC. |
| Court | Mississippi Supreme Court |
Alton Massey, Kosciusko, for appellants.
Donald B. Morrison, Jackson, Overstreet, Kuykendall, Perry & Crockett, of counsel, Jackson, for appellee.
This is an appeal by Mr. and Mrs. James M. Barnett, owners of the Barnett Moving & Storage Company of Kosciusko, Mississippi, from a final judgment of the Circuit Court of the First Circuit Court District of Hinds County, Mississippi. The circuit court reversed an order of the Mississippi Public Service Commission granting the appellants a certificate of public convenience and necessity, authorizing the appellants to transport household goods from an area within a fifty-mile radius of Kosciusko to all points and places in Mississippi, and from all points in Mississippi to the fifty-mile area around Kosciusko, Mississippi. The appellee, Movers Conference of Mississippi, is composed of individuals and companies who have certified permits to operate as movers of household goods within the area in which the appellants seek a certificate to operate as a mover of household goods.
The appellants gave notice to the holders of (household moving) certificates of the hearing to be had before the Public Service Commission (hereinafter called 'Commission'). The appellee appeared as representative of its members, and contested the appellants' petition before the Commission.
At the hearing before the Commission, the appellants introduced fourteen witnesses, and appellee introduced ten of its members to testify against the petition of appellants. The testimony introduced on behalf of the appellants (hereinafter called 'Petitioners') shows that the area within in a radius of fifty miles of Kosciusko, Mississippi is growing at a fast rate. Large, new factories are moving into the area. There is a tremendous growth as shown by the increased employment, home building, new jobs, economic expansion and movement of people into the area. The record shows that there is considerable movement of individuals not only by long distance transportation, but by intrastate transportation also. In fact, one of the protestants recognized the need of a local representative and the need for local service by asking the Commission to permit him to locate equipment and an office at Kosciusko, Mississippi. The city authorities of several towns located adjacent to Kosciusko filed resolutions asking the Commission to grant the petition of the Petitioners.
Members of the Movers Conference, on the other hand, offered evidence to show that they have the equipment to haul all household goods moving in the area, and that they have moved all household goods that they have been requested to move. They contended that to allow additional certificates of convenience and necessity to the Petitioners would violate their certificated rights to serve the area described in the petition, and that to allow additional permits would infringe on their rights to obtain the revenue that would be absorbed by new competition. The Petitioners offered evidence to rebut this defense theory by showing that the appellees had made little effort to serve the area, either by advertisement or solicitation, and that there were persons who sought to obtain movers of household goods. Moreover, it was shown that estimates of moving jobs were difficult to obtain from movers who were located a long distance from the area involved.
Upon appeal to this Court, appellee stands firmly upon the proposition that a certificate of public necessity and convenience should not be granted to an applicant where there is existing adequate service over the routes applied for, and if the service is found to be inadequate, a new certificate should not be granted until a certificated carrier is given an opportunity to furnish such additional service and equipment as is required to meet the public need. The appellee contends that this is the clear meaning of the rule established by this Court in Tri-State Transit Company of Louisiana v. Dixie Greyhound Lines, 197 Miss. 37, 19 So.2d 441 (1944). We agree with this contention not only because of the rationale of that case, but because the Mississippi Legislature expressly admonished the Commission to 'give due consideration to the present transportation facilities over the proposed route of the applicant, the volume of traffic over such route, the financial condition of the applicant, and the condition of the highway over the proposed route, or routes.' Miss. Code 1942 Ann. § 7642 (1956). On the other hand--does the rule in the Tri-State Transit Company case apply here?
It will be observed that the cases applying the rule of the Tri-State Company case are cases where the transportation certificate of public convenience and necessity extends over a given route. See Tri-State Transit Co. v. Dixie Greyhound Lines, 197 Miss. 37, 19 So.2d 441 (1944); Dixie Greyhound Lines v. American Buslines, 209 Miss. 874, 48 So.2d 584 (1950); Southern Bus Lines v. Mississippi Pub. Serv. Comm., 210 Miss. 606, 50 So.2d 149 (1951); Tri-State Transit Co. of La. v. Gulf Transport Co., 201 Miss. 744, 29 So.2d 825 (1947). This rule has also been applied to the existing routes served by public utilities. Mississippi Power Co....
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