Bermensolo, Application of

• Decision Date: 01 January 1960
• Citation: 352 P.2d 240,82 Idaho 254
• Court: Idaho Supreme Court

Page 240

352 P.2d 240

82 Idaho 254

Kenneth G. Bell, Randall Wallis, J. Charles Blanton, Boise, for appellant.

Richards, Haga & Eberle & Dale O. Morgan, Boise, for respondent. SMITH, Justice.

Respondent A. P. Bermensolo made application to the Idaho Public Utilities Commission for a permit to transport household goods within Elmore County, and between points and places within Elmore County, and places within the State, under the name and style of B Transfer and Storage, with place of business in Mountain Home, Idaho. Appellants, all of whom are holders of Idaho Public Utilities permits as household movers within the area in question, protested respondent's application. The Commission held a hearing on the matter, after which it entered an order granting respondent's application and, subsequently, denied appellants' petition for rehearing. Appellants have appealed from the order granting the application, and from the order denying the petition for rehearing.

Appellants' several assignments of error question the sufficiency of the evidence to sustain the findings of the Commission, and its order based thereon, granting respondent's application.

Disposition of this appeal requires specific disposition of but two of appellants' assignments, and a review of the evidence in order to ascertain whether it sustains the Commission's order.

Appellants by their first assignment question the finding of the Commission concerning the fitness and ability of respondent to engage in the proposed transportation service. Suffice it to say that the financial capability and business judgment of respondent were not refuted. Further, evidence was introduced relative to arrangements having been made by respondent for the procurement of necessary equipment and competent assistants should his application be approved, and no evidence was introduced in contradiction thereof. Hence, appellants' first assignment is without merit.

Appellants next contend that the Commission erred in concluding that the granting of respondent's application would be in the public interest.

I.C. § 61-802, setting forth the requirements to be found by the Commission before issuance of a permit, reads in part:

'* * * A permit shall be issued to any qualified applicant authorizing the whole or any part of his operations covered by the application made to the commission in accordance with the provisions of this chapter, if it is found that the applicant is fit, willing, and able properly to perform the service proposed and to conform to the provisions of this chapter and the requirements, rules and regulations of the commission thereunder, and that the proposed service, to the extent authorized by the permit, is or will be in the public interest, * * *.' (Emphasis supplied.)

The evidence shows that presently the two appellants, Samson Truck Line and Whitney Transfer and Storage Company, are domiciled in Mountain Home whose services are available for household moving, one of which devotes over 90% of its efforts to commercial hauling exclusive of household goods; also, that the other appellants domiciled in Boise, 45 miles from Mountain Home, transact moving businesses within the area when called upon to do so. Of the latter group, the majority are both intrastate and interstate haulers. In short, the preponderance of appellants' evidence indicates that respondent's proposed operation would be detrimental to appellants' operations, from a competitive standpoint. In addition, some of appellants' witnesses testified that the results of surveys conducted by appellants or their representatives showed that an expansion of services through the utilization of a local agent in the Mountain Home area would not be feasible from an economic viewpoint.

Respondent's witnesses testified, for the most part, to the continued growth of the Mountain Home vicinity since the re-activation and continued activities of Mountain Home Air Force Base located in that area; also that inasmuch as local services in other types of business activity had increased because of the increase in population, so too, would the demand increase for local household movers, because of the large number of transient-type families living in, and moving in and out of that area.

In Malone v. Van Etten, 67 Idaho 294, 178 P.2d 382, we held under the provisions of the Auto Transportation Act, wherein the then requirement authorizing issuance of a...