Dye Trucking Co. v. Miller
| Decision Date | 08 December 1965 |
| Docket Number | No. 11341,11341 |
| Citation | 397 S.W.2d 507 |
| Parties | DYE TRUCKING COMPANY, Appellant, v. Walter A. MILLER et al., Appellees. |
| Court | Texas Court of Appeals |
Dan Felts, Dean Moorhead, Austin, for appellant.
White, McElroy & White, Dallas, Small, Small & Craig, C. C. Small, Jr., James, Robinson & Starnes, Phillip Robinson, Austin, Kelley, Looney, McLean & Littleton, Edinburg, Clark, Thomas, Harris, Denius & Winters, Jerry C. Prestridge, Austin, for appellees.
This case presents the question of whether the term 'batch cement,' as used in a Specialized Motor Carrier Certificate held by Appellant Dye Trucking Company, permits the appellant to transport the commodity 'bulk cement.'
In the trial court appellant claimed that under the term 'batch cement,' as used in its certificate, it is fully entitled to transport bulk, dry cement, unmixed with water, sand or any other substance, the dry cement not being contained in sacks, packages or other containers, for hire over the highways of the State of Texas not to exceed 350 miles in distance.
Appellees contended that the term 'batch cement,' as used in appellant's certificate, does not include bulk, dry cement and that appellant is not entitled to transport this commodity under color of such certificate.
The trial court rendered judgment for appellees and we affirm his judgment.
Appellant is before this Court with eight points of error assigned to the judgment of the trial court. Points One and Three complain of the trial court's judgment in holding that appellant is not authorized to transport bulk cement. Point Two complains of the trial court's judgment in failing to hold that appellant had this authority. Point Four says that there is 'no evidence' to sustain the holding. Point Five states that there is 'insufficient authority' to support the trial court's judgment and Point Six states that the holding is 'contrary to the great weight and preponderance of the evidence.' Points Seven and Eight are alternative in nature and state that the trial court should have at least held that appellant had the authority to transport bulk cement to 'batching plants.'
We overrule these points.
It is generally agreed between the parties hereto that this case hinges upon what the Railroad Commission meant by 'batch cement' when it issued the appellant the certificate in question.
The original application, filed in 1950 under the above-described statute, out of which the authority claimed by the appellant originates, stated the commodities for which authority was requested as follows:
'Applicant proposes to transport gravel, rock, caliche, shell, iron ore, ready mix asphalt, dry cement, sand, stone, round and crushed, loose in bulk * * *' (Emphasis added.)
The application stated that these commodities were to be transported in the following manner:
'* * * in truck load lots in dump trucks or trailer loads in dump trailers * * *' The proposed transportation was to take place:
'* * * from gravel pits and other storage places to construction sites, including buildings, dams, streets, and highways and all other kinds of structures where in the course of such transportation the longest haul will not exceed 150 miles.'
The application, in describing the 'specialized equipment' to be used, said:
The application contains the following statement:
'There are only a few specialized motor carriers who are authorized to transport the commodities described and render the service in dump trucks and dump trailers as proposed in this application.'
This is followed by a list of such carriers.
The application then says:
'The above styled carriers with the exception of Sparks Trucking Company of Victoria have only recently procured their certificates and like these applicants were operating long prior to the filing of these applications.'
Pursuant to this application the Commission granted Specialized Motor Carrier Certificate No. 8590, setting out the authority granted in the following language:
'Gravel, rock, caliche, shell, iron ore, ready mix asphalt, batch cement, sand, stone, round or crushed, loose in bulk * * *' (Emphasis added.)
These commodities, according to the Certificate, were to be transported in the following manner:
'* * * in truck load lots in open dump trucks or trailer loads in dump trailers * * *' (Emphasis added.)
These commodities were to be transported in such manner from and to the following places:
'From gravel pits and other storage places to construction sites, including buildings, dams, streets and highways and all other kinds of structures where in the course of such transportation the longest haul will not exceed 100 miles.' (Emphasis added.)
The Certificate issued by the Commission differs from the application in the following respects:
The word 'batch' has been inserted in lieu of the word 'dry' before the word 'cement' in the commodity description. The word 'open' has been inserted before the word 'dump' in the equipment description. The mileage has been reduced from 150 to 100 miles.
In 1960 an application was filed to amend Specialized Motor Carrier Certificate No. 8590 in the following manner:
'So as to remove the present restriction of miles the commodities sand, gravel, etc., now authorized may be transported and allow such commodities to be transported between all points in Texas without restriction as to distance between origin and destination without change in commodities now authorized.'
This application disclaimed any intent to make any change in the commodity authority set out in the original Certificate in this language:
'Let it be emphasized that no authority is sought hereby to eliminate, add or change the commodities that may be transported.'
Apparently similar applications were made by other carriers of the general type because a joint order covering several applications were issued by the Commission on May 7, 1961. The Commission order pursuant to...
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...125 Tex. 430, 83 S.W.2d 929 (1935), cert. den., 296 U.S. 623, 56 S.Ct. 144, 80 L.Ed. 442 (1935) as interpreted in Dye Trucking Co. v. Miller, 397 S.W.2d 507 (Tex.Civ.App.1965). See, generally, Walter v. Bd. of R.R. Com'rs, 153 Mont. 384, 457 P.2d 479 (1969); Reynoldsburg Trucking, Inc. v. P......
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