Fisher v. Branscum, 5--4328

• Decision Date: 20 November 1967
• Docket Number: No. 5--4328,5--4328
• Citation: 420 S.W.2d 882,243 Ark. 516
• Parties: Harold FISHER et al., Appellants, v. J. L. BRANSCUM, d/b/a Branscum Moving & Storage Company, Appellee.
• Court: Arkansas Supreme Court

Page 882

420 S.W.2d 882

243 Ark. 516

Harold FISHER et al., Appellants, v. J. L. BRANSCUM, d/b/a Branscum Moving & Storage Company, Appellee.

No. 5--4328.

Supreme Court of Arkansas.

Nov. 20, 1967.

Louis Tarlowski, Little Rock, for appellants.

Claude Carpenter, Jr., Little Rock, and Reid, Burge & Prevallet, Blytheville, for appellee.

FOGLEMAN, Justice.

Appellants ask that we reverse the trial court's affirmance of an order of the Arkansas Commerce Commission authorizing the transfer of a certificate of public convenience and necessity. This certificate Provision for transfer of certificates is contained in Ark.Stat.Ann. § 73--1767(b) (Repl.1957). Transfer is prohibited when the Arkansas Commerce Commission finds that such action will be inconsistent with the public interest or where it appears that reasonably continuous service has not been rendered under the authority granted by the certificate prior to the application.

for the transportation of household goods was issued to one Homer Fisher on March 16, 1955. It covered irregular routes between points in Arkansas, but all shipments were required to originate or terminate in Mississippi County. Fisher entered into a contract with appellee Branscum for the sale of these operating rights. The joint application of these parties was resisted by appellants, intrastate common carriers of household goods. Their protest was based upon the assertion that the certificate was dormant for failure to render reasonably continuous service. Consequently they contend that approval of the transfer is inconsistent with the public interest. One of the appellants held a virtually identical certificate which he had leased to Branscum.

After a hearing on November 23, 1966, the Arkansas Commerce Commission approved the transfer. It found that the certificate had not been dormant within the meaning of § 14, Act 397 of 1955 (§ 73--1767). It made a specific finding that Homer Fisher had been ill for a considerable period of time and unable to attend to business such as he normally would have conducted had he not become ill, but that afterwards he had been attempting to carry on his business.

The scope of our review on appeals is governed by § 73--134. This section provides that findings of fact of the circuit court are not binding on this court. On the other hand, it requires that we review all the evidence and make such findings of fact and law as we deem just, proper and equitable. The circuit court is required to review the order upon the record presented and to enter its finding and order thereon.

In the opinion in Wisinger v. Stewart, 215 Ark. 827, 223 S.W.2d 604, the variable, apparently inconsistent and sometimes confusing statements in some of our opinions with reference to the meaning and application of this statute were harmonized. It is now clear that the review therein provided for is that which we make in chancery cases. Missouri Pacific Transportation Co. v. Inter City Transit Co., 216 Ark. 95, 224 S.W.2d 372. In doing this, we follow these rules:

1. The trial is de novo upon the record--not as if no judgment had been rendered, but for the purpose of determining whether the judgment is against the preponderance of the evidence. Fort Smith Light & Traction Co. v. Bourland, 160 Ark. 1, 254 S.W. 481; Missouri Pacific RR. Co. v. Williams, 201 Ark. 895, 148 S.W.2d 644; Wisinger v. Stewart, 215 Ark. 827, 223 S.W.2d 604.

2. Neither the findings of the circuit court nor the findings of the Commission are binding on appeal, but we will not upset the findings of the Commission unless they are clearly against the preponderance of the evidence. Fort Smith Light & Traction Co. v. Bourland, supra; Potashnick Truck Service, Inc. v. Missouri & Arkansas Transportation Co., 203 Ark. 506, 157 S.W.2d 512; Arkansas Express, Inc. v. Columbia Motor Transport Co., 212 Ark. 1, 205 S.W.2d 716; Wisinger v. Stewart, supra; Washington Transfer & Storage Co. v. Harding, 229 Ark. 546, 317 S.W.2d 18.

3. In weighing the evidence, we do not substitute our judgment for that of the Commerce Commission. We will accord due deference to the Commission's findings because of its peculiar competence to pass upon the 4. The burden is on the appellant to show that the judgment is erroneous. Fort Smith Light & Traction Co. v. Bourland, 160 Ark. 1, 254 S.W. 481.

fact questions involved and because of its advantage in seeing and hearing the witnesses during the full hearing. St. Louis S.W. Ry. Co. v. Stewart, 150 Ark. 586, 235 S.W. 1003; Fort Smith Light & Traction Co. v. Bourland, supra; Potashnick Truck Service, Inc. v. Missouri & Arkansas Transportation Co., supra; Schulte v. Southern Bus Lines, 211 Ark. 200, 199 S.W.2d 742; Wisinger v. Stewart, supra; Boyd v. The Arkansas Motor Freight Lines, Inc., 222 Ark. 599, 262 S.W.2d 282; National Trailer Convoy, Inc. v. Chandler Trailer Convoy, Inc., 233 Ark. 887, 349 S.W.2d 672.

5. When the evidence is evenly balanced, the Commission's views must prevail. Boyd v. The Arkansas Motor Freight Lines, Inc., supra.

In short, this court's function is to inquire whether the determination of the Commission is contrary to the weight of the evidence. Missouri Pacific Transportation Co. v. Inter City Transit Co., 216 Ark. 95, 224 S.W.2d 372. In so doing, we must not lightly regard the findings of the Commission. Superior Forwarding Co. v. Southwestern Transportation Co., 236 Ark. 145, 364 S.W.2d 785.

Appellants now urge that the order approving the transfer is not supported by substantial evidence. The basis of their contention is that there was not substantial evidence to show that reasonably continuous service under the authority granted Homer Fisher had been rendered prior to the application for transfer.

Branscum testified that: During the four or five years he had operated under the lease of Beckham's certificate to the extent that it had been necessary for him to purchase additional equipment and to start construction of a new warehouse; the population of the Blytheville area was increasing and industrial plants were moving in; he did considerable business because of the air base at Blytheville, and a lot of civilian moves were going on; to his knowledge, the only certificates for household goods carriers were those issued to Homer Fisher and three of the appellants, one of whom was previously Branscum's lessor. Branscum also testified, over the objections of the protestants, that he had reviewed the books and records of Homer Fisher and made a list of the moves the latter had made outside the city limits of Blytheville in the preceding two or three years. The list showed 23 moves outside the city limits of Blytheville in 1963, 19 in 1964, 17 in 1965, and 24 in 1966. Although he had access to information as to origin and destination, this was not shown on the list and it was very possible that most of the shipments during 1963 may have gone within a radius of a mile of Blytheville. He could not tell whether any of the moves on the list went to Little Rock or Texarkana or any other place in Arkansas. In the books he saw moves to Jonesboro and West Memphis.

Homer Fisher, at the time of the hearing, only owned one truck which he testified had been in operation continuously. He further testified that: He worked out of his home, a telephone there being listed in his name; he had two part time employees; he had no warehouse; he was personally in charge of the operation; he had transported one or two or maybe more shipments between various points and places in Arkansas and Mississippi County in 1966; they originated in Blytheville, one going to Jonesboro and one to West Memphis; he handled 24 or 34 shipments to points around the edge of Blytheville, but outside the city limits, over the preceding two years; he had brought one or two to Little Rock and some to West Memphis during the life of the permit; he had not been able to handle more than a very few shipments during the preceding two years because of illness Protestants offered no evidence pertaining to the issues.

he judged that there were five or six shipments[243 Ark. 521] under the permit in Mississippi County just outside the edge of Blytheville during the month of September 1966; to the best of his memory he handled movements under the permit in August 1966, but didn't know where they went; he had records that would show movements during each month of 1966, but did not have them with him; he moved one or two to Fort Smith and one to Prescott and moved into Jonesboro in 1966, but couldn't remember any others; the service he had rendered in 1965 had been less because he had been in the hospital most of the time; the bulk of his operations under the permit was conducted in the immediate vicinity of Blytheville; he drove his truck himself; he was advertising in the telephone book, in his front yard and on his truck, and by getting in contact with persons, making solicitations and trying to get business; he was incapacitated from July 1965, up until the first of September, but for the preceding two months he had been up and moving people.

We are unable to distinguish this case from Arkansas Motor Freight Lines, Inc. v. Howard, 224 Ark. 1011, 278 S.W.2d 118. There the applicant for transfer was authorized to operate as a motor carrier of a wide range of commodities upon designated highway routes extending into every section of the state. It had been unable to exercise its authority to any great extent. It had only one terminal. Its rolling stock consisted of one truck, three tractors and four semi-trailers. It had carried only 39 shipments of freight during its thirteenmonth existence, although it advertised for business and never refused any cargo tendered. The Commission found that reasonably continuous service had been rendered and this court affirmed. Language in that opinion which we here deem appropriate is as follows:

'* * * Insamuch as the Commission's knowledge of its own specialized field is...