Fleet Transport Co. of Fla. v. Mason, 34215

• Decision Date: 29 June 1966
• Docket Number: No. 34215,34215
• Citation: 188 So.2d 294
• Parties: FLEET TRANSPORT COMPANY OF FLORIDA, a corporation, Petitioner, v. Edwin L. MASON, Jerry W. Carter, William T. Mayo, as members of and constituting the Florida Public Service Commission, Respondents.
• Court: Florida Supreme Court

Page 294

188 So.2d 294

FLEET TRANSPORT COMPANY OF FLORIDA, a corporation, Petitioner, v. Edwin L. MASON, Jerry W. Carter, William T. Mayo, as members of and constituting the Florida Public Service Commission, Respondents.

No. 34215.

Supreme Court of Florida.

June 29, 1966.

William P. Tomasello, Bartow, and Rebecca Bowles Hawkins, Shalimar, for petitioner.

Lewis W. Petteway, Mercer Fearington, Tallahassee, for Florida Public Service Commission.

Hill, Hill & Dickenson, Tampa, for Redwing Carriers, Inc.

HOBSON, Justice (Ret.).

This case is here upon a petition for a writ of certiorari directed to the Florida Public Service Commission. Petitioner seeks a review by this Court of an order entered by the Commission which denied petitioner's application for an extension of its existing certificate.

The application Sub judice filed by the petitioner, Fleet Transport Company of Florida, sought an extension of its existing certificate to transport only a few additional commodities (principally phosphate rock and superphosphate) in a limited area, Hillsborough and Polk Counties. It application was supported by two large industries located in the area, namely, U.S. Phosphoric and Florida Nitrogen.

U.S.P. purchases phosphate rock from the mines in Hillsborough and Polk Counties and has the rock transported to its manufacturing plant in East Tampa (Hillsborough County). Because of a favorable rail rate, it utilizes rail transportation for 70 per cent of its transportation needs. It maintains a continuous-flow, 24-hour-a-day type of operation which requires the flexibility obtainable from motor carrier service for the remaining 30 per cent of its transportation needs. The other supporting shipper, Florida Nitrogen, purchases superphosphate from U.S.P. and other suppliers in Polk County and has it transported to its manufacturing plant located in Tampa (Hillsborough County), Florida Nitrogen has no facilities for unloading this commodity when shipped by rail, and therefore it uses motor carrier transportation exclusively for this particular commodity. The Protestant, Redwing Carriers, Inc., is the only mtor carrier certificated to transport the subject commodities in Hillsborough and Polk Counties. Thus, both U.S.P. and Florida Nitrogen are compelled to depend entirely upon Redwing for their motor carrier transportation of the subject commodities.

Ironically, two or more motor carriers are certificated and are available to transport all other commodities required by the two supporting shippers. Only in the case of the commodity which is absolutely essential and vital to their manufacturing operations (phosphate rock in the case of U.S.P. and superphosphate in the case of Florida Nitrogen) are these two shippers relegated to the service of a single carrier.

That Redwing's motor carrier service does not adequately meet the demands of the two supporting shippers was conclusively shown by the testimony of their representatives. In its order denying the petitioner's application for authority to provide additional motor carrier service to these shippers, the Commission took note of this, apparently accepted Redwing's purported 'explanation' (referred to more fully hereafter) of the reasons for the recurrent delivery failures, and denied the petitioner's application. It is this order which is before the court for review.

As to U.S.P.'s transportation problems with Redwing, U.S.P.'s traffic manager testified that Redwing would fail to meet U.S.P.'s delivery schedule, whereupon a complaint would be made and the service would improve; that the service would be satisfactory for a couple of weeks 'and then it happens again'; that they go through the same cycle on an average of every two weeks; that this has been going on for several years and is very disturbing to the plant as it interrupts their flow of rock. In its order the Commission stated that U.S.P.'s complaint 'was explained by Protestant (Redwing) as being due to their inability to load on a regular basis.' If this statement was intended to be a finding that Redwing's recurrent failures to meet U.S.P.'s phosphate rock delivery schedules were due to loading problems at the mines rather than to Redwing's own inefficiency or incapacity or indifference, such a finding is not supported by competent substantial evidence.

This court said in Andrews v. C.B.S. Division etc., Fla.1960, 118 So.2d 206, that 'if the evidence is not logical and reasonable a finding based on and supported by such evidence would be based on incompetent evidence and hence be contrary to law.' It is neither reasonable nor logical to infer that the transportation problem described by U.S.P.'s representative, recounted above, resulted from loading delays at the mines. Therefore, the Commission's conclusion to this effect is not supported by Competent evidence.

Nor can the writer find in the record any Substantial evidence to support such a conclusion. 'Substantial' evidence is that which establishes 'a substantial basis of fact from which the fact at issue can be reasonably inferred.' DeGroot v. Sheffield, Fla.1957, 95 So.2d 912. The fact at issue in this phase of the case was the adequacy of Redwing's service to U.S.P. Admittedly, it was not adequate; and there is nothing in the record to show that its inadequacy was due to circumstances beyond Redwing's control.

The evidence showed that U.S.P. purchases and transports phosphate rock principally from three mines in the 'pebble rock' area in Polk County. Redwing's witness said that there were no loading problems at two of the mines; that he 'only' ran into the problem when he loaded at Smith-Douglas's mine. It was then shown by petitioner's witness (an official of Smith-Douglas) that Smith-Douglas had been selling phophate rock to U.S.P. for transportation By motor carrier only for two or three months prior to the time of the hearing. Q.E.D.: Redwing failed completely to prove that U.S.P.'s transportation defficulties with Redwing, recurring periodically over a period of several years, were due to loading delays at the mines.

As to Florida Nitrogen's transportation problems, there was testimony by its traffic manager of innumerable delays and failures to deliver the required number of loads of superphosphate and the number of times they had been compelled to close down this operation due to Redwing's failure to deliver. In disposing of this complaint, the Commission made the following remarkable statement in its order:

'Part of their difficulties appear to arise from the fact that they have no railroad siding to receive superphosphate by rail and that they have limited storage for superphosphate.'

The Commission could have said, with equal logic and candor, that Florida Nitrogen could avoid its transportation problem with Redwing by moving its plant from Tampa to Polk County, next door to its principal supplier, or by purchasing and operating its own fleet of motor tractors and trailers! Obviously, the quoted statement is a pure gratuity, completely irrelevant to the fact immediately at issue, viz., the adequacy of Redwing's service to Florida Nitrogen and the cause of the admitted inadequacy. In this connection the Commission also said:

'Conflicting testimony by Florida Nitrogen's witnesses and that of Protestant's witness would also indicate that difficulties also arise from the past inability of one of Florida Nitrogen's principle suppliers to load Protestant's trucks at regular intervals, as well as the length of time Florida Nitrogen has taken to unload each truckload.'

There is no competent substantial evidence to support this conclusion, if one may call it that, of the Commission.

Such a conclusion is vulnerable to the same attack, as to 'competency', as was Redwing's attempted explanation of the reason for failures in delivery to U.S.P., since Florida Nitrogen's traffic manager testified that, after a complaint, the service would improve and then 'go right back.'

It is also susceptible to attack under the 'substantial evidence rule', quoted above, since the evidence is too flimsy to support a conclusion that the delivery delays and failures complained of by Florida Nitrogen were due to...