Blue & White Service, Inc. v. Public Service Commission

• Decision Date: 30 March 1965
• Docket Number: No. 2,No. 20272,20272,2
• Citation: 137 Ind.App. 112,205 N.E.2d 552
• Court: Indiana Appellate Court
• Parties: BLUE & WHITE SERVICE, INC., Appellant, v. PUBLIC SERVICE COMMISSION of Indiana et al., Appellees

Page 552

205 N.E.2d 552

137 Ind.App. 112

BLUE & WHITE SERVICE, INC., Appellant, v. PUBLIC SERVICE COMMISSION of Indiana et al., Appellees.

No. 20272.

Appellate Court of Indiana, Division No. 2.

March 30, 1965.

[137 INDAPP 113]

Eugene H. Yockey, E. Alonzo Deckard, Indianapolis, for appellant.

Quinn, Howard & Clark, Indianapolis, for appellees.

SMITH, Judge.

Wilbur E. Harris, d/b/a Heavy Wrecker Service, an appellee herein, filed an application with the Public Service Commission of Indiana requesting that the Commission issue said appellee a Certificate of Public Convenience and Necessity to operate motor vehicles as a common carrier of property in intrastate commerce.

The application specifically requested the following authority to transport property in intrastate commerce:

[137 INDAPP 114] 'From the appellant's office at 1201 Spencer, Indianapolis, Indiana, to points and places throughout the State of Indiana of [over] irregular routes.'

The appellant, Blue & White Service, Inc., appeared as a protestant to oppose the granting of the authority as requested by the Appellee Harris. Pursuant to legal notice, a public hearing was held on the application. Following the hearing, the Commission entered an order wherein it granted the request for authority and a Certificate for Public Convenience and Necessity was issued to Appellee Harris as follows:

'Vehicles, except house trailers and automobiles, to be used as replacements for wrecked or disabled vehicles,'

'From points and places in Marion County, Indiana, to points and places in Indiana.'

Neither the Appellee Harris nor the Appellee Public Service Commission submitted an appellee's brief. In fact the Appellee Commission filed a petition with this court requesting that this court remand this cause to the Commission because of alleged errors in the order of the Commission. While the petition to remand contains a statement that the same shall not be a confession of error, it appears from the language of the petition that the Commission requested the cause to be remanded in order to correct an error in the order of the Commission.

Considering the question of the failure of Appellees to file briefs, it is well settled by the decisions of this Court and the Supreme Court that in the event an appellee fails to file a brief, the court may, in its discretion, take several courses of action: (1) it may order the appellee to file a brief; (2) it may consider the question to be presented without aid [137 INDAPP 115] of appellee's brief; or (3) it may reverse the judgment or award if prima facie error is shown by appellant's assignment of errors and brief. See, Gibson v. City of Indianapolis, Indiana (1962), 242 Ind. 447, 179 N.E.2d 291; and United States Steel Corp. v. Cicilian (1962), 133 Ind.App. 249, 180 N.E.2d 381. (Petition for rehearing dismissed 133 Ind.App. 249, 181 N.E.2d 538.)

It is further well settled by the decisions of this Court and the Supreme Court that the failure of an appellee to file a brief in answer to an appellant's brief may be deemed to be a confession of error, and the judgment of the trial court may accordingly be reversed without prejudice to either party. This rule was announced and followed by the Supreme Court of Indiana in the case of Meadows v. Heckman (1947), 225 Ind. 146, 73 N.E.2d 343. The Supreme Court in its opinion said in substance that the failure of an appellee to file a brief controverting the errors complained of by an appellant may be a confession of such errors, however, the rule should not be invoked unless the brief of the appellant makes an apparent or prima facie showing of reversable error. The Court further said that this rule is not for the benefit of an appellant but for the protection of the court; and whether the rule should be invoked, is discretionary with the court.

It therefore appears that the only question to be determined in the instant appeal is whether the assignment of error and brief of the Appellant discloses prima facie error.

The Appellant assigns and alleges as error that the decision and order of the Appellee Public Service Commission is contrary to law. Specifically the Appellant contends:

1. that the authority requested in the application[137 INDAPP 116] cannot be granted because there is no evidence in the record as to the movement or the need for movement of any traffic from the origin point shown in the application, in other words, public convenience and necessity was not established by the evidence;

2. that the authority granted to the Appellee Harris by the Appellee Commission was wider in its scope and was different than...