Miller v. Tarry

• Decision Date: 28 November 1945
• Docket Number: No. 9523.,9523.
• Citation: 191 S.W.2d 501
• Parties: MILLER et al. v. TARRY et al.
• Court: Texas Court of Appeals

191 S.W.2d 501

MILLER et al. v. TARRY et al.

No. 9523.

Court of Civil Appeals of Texas. Austin.

November 28, 1945.

Rehearing Denied January 2, 1946.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Fifty-Third District, Travis County; J. Harris Gardner, Judge.

Suit by L. F. and F. D. Miller, doing business as Miller & Miller Motor Freight Lines, against J. P. Tarry, doing business as the J. P. Tarry Company, and others, to set aside an order of the Railroad Commission of Texas granting named defendant a certificate of convenience and necessity to operate a common carrier motor service, wherein named defendant brought a cross-action against plaintiff, and wherein Sproles Motor Freight Line, Inc., sought to intervene as a party plaintiff. From a judgment denying plaintiffs relief, plaintiffs appeal.

Affirmed.

Herbert L. Smith, of Austin, and Nelson, Montgomery & Robertson, of Wichita Falls, for appellants.

Grover Sellers, Atty. Gen., and Elton M. Hyder, Asst. Atty. Gen., for appellee Railroad Commission of Texas.

T. S. Christopher, of Fort Worth, for appellee Strickland Transp. Co., Inc.

Callaway & Reed and Rollo E. Kidwell, all of Dallas, for appellee J. P. Tarry.

McCLENDON, Chief Justice.

This suit involves the validity of an order of the Commission (Railroad Commission of Texas), dated November 2, 1940, granting to Tarry (J. P. Tarry, dba The J. P. Tarry Company) a certificate of convenience and necessity to operate a common carrier motor carrier service:

"Between Wichita Falls and Amarillo via Quanah, Childress, Memphis and Clarendon over U. S. Highway No. 370 (now 287), serving all intermediate points."

The order recited:

"All equipment to be operated under authority of this order is to be restricted to that owned by the holder of the certificate and shall not exceed Four Additional Trucks."

The suit was brought March 21, 1941, by the Millers (L. F. and F. D. Miller, dba Miller Motor Freight Lines) against Tarry (and others alleged to be interested in the certificate) and the Commission, to set aside the order. Tarry filed a cross-action seeking to set aside an order dated November 8, 1940, granting an amendment to certificates owned by the Millers, which are noted below. An intervention by Sproles (Sproles Motor Freight Line, Inc.) as party plaintiff with the Millers was dismissed upon the ground of bar of limitation; from which dismissal there was no appeal. The suit was tried to the court without a jury June 4-7, 1945, and judgment was rendered on the latter date denying the Millers any relief upon their suit, and denying Tarry any relief upon his cross-action against the Millers. The Millers alone have appealed, urging against that portion of the judgment refusing to set aside the order granting the Tarry certificate, five points stated substantially as follows:

1. The Commission acquired no jurisdiction to grant the Tarry certificate, which was for a purely local service between Wichita Falls and Amarillo, because Tarry's application was only for an extension of his existing service from Fort Worth to Wichita Falls, so as to serve out of Fort Worth towns between Wichita Falls and Amarillo.

2 and 3. Conceding (arguendo) such jurisdiction, the order was arbitrary, unreasonable and discriminatory in that there was no substantial evidence before the Commission which would support a need 2) for such local service between Wichita Falls and Amarillo and intermediate points, or 3) for service between Fort Worth and Amarillo.

4. The evidence was insufficient to support the judgment.

5. The Commission on November 1, 1940 (one day prior to the Tarry order), having granted to Sproles (and Sproles having begun operation thereunder) a certificate authorizing service paralleling and covering the same towns and over identical routes as the Tarry application, the Commission and the trial court erred in not taking into consideration such service, and in not denying and cancelling the Tarry certificate "because there was evidence before the Commission that the Sproles service would relieve all inadequacies in existing service, thereby conclusively showing that public convenience and necessity did not require Tarry's service in addition to that of Sproles."

It is conceded that the application, the evidence before the Commission and that before the trial court were each sufficient to support a certificate granting extension from Wichita Falls to Amarillo of Tarry's existing certificate from Fort Worth to Wichita Falls; the contention in the above five points being that neither (1) the certificate, nor (2) the evidence before the Commission, nor (3) that before the trial court was sufficient to support the order granting a purely local service between Wichita Falls and Amarillo.

It should be noted at the outset that the Tarry application was also for extension of service from Wichita Falls to Lubbock; but that portion of the application was denied, and is not involved in the suit.

Considering point 1 (insufficiency of the application) we quote the following from the application, and its exhibits, which were filed with the Commission April 11, 1940:

Under "proposed route of operation:"

"Fort Worth to Amarillo.

"Applicant now operates between Fort Worth and Wichita Falls via Decatur, Bowie and Henrietta under existing certificate. The proposed operation to Amarillo is an extension from Wichita Falls to Amarillo, via Vernon, Quanah, Childress, Memphis and Clarendon, traversing Federal Highway No. 370."

"There is at the present time no direct, through motor freight service between * * * Fort Worth and Amarillo, along the prospective proposed route(s) above mentioned serving intermediate points and giving a direct, overnight, through service between said termini and intermediate points. Freight between said towns as now handled by above named carriers must be interlined and interchanged, involving a loss of time which can be eliminated by supplying a through, direct, one-line service as will result from the granting of this application."

Proposed schedule set out in Exhibit E showed one trip daily each way between Fort Worth and Amarillo, leaving Fort Worth 8:30 p. m., Ar. Wichita Falls 12 midnight, Lv. Wichita Falls 1:30 a. m., Ar. Amarillo 8:00 a. m., Lv. Amarillo 10:00 a. m., Ar. Wichita Falls 4:30 p. m., Lv. Wichita Falls 6:00 p. m., Ar. Fort Worth 9:30 p. m. Time of departure from all intermediate points was given in this exhibit and an amendment thereto. Under the heading "Number of trucks to be operated," the application read, "Nine (9) now owned plus four (4) additional trucks to be purchased if application granted." These trucks were listed in Exhibit B, each of which had a capacity of 1½ tons.

The application as a full compliance with the statutes and rules of the Commission is not challenged except in the particular stated in point 1, namely, that it will not support the certificate granted in the order.

If the order, properly construed, granted a purely local service between Wichita Falls and Amarillo, wholly independent of and disconnected from the service Tarry was giving between Fort Worth and Wichita Falls, there might be just ground for complaint that the application was insufficient to support the order. The order, however, clearly, we think, shows on its face that the certificate granted is an extension of Tarry's existing service, and only such extension. We quote from the order (emphasis ours):

"The Commission finds that from the evidence introduced at the hearing, the applicant at the present time operates a common carrier motor carrier between Fort Worth and Wichita Falls and that this application is for an extension from Wichita Falls to Amarillo via Quanah, Childress and other intermediate points * * *. The testimony shows and the Commission so finds that there is no direct, through, single line motor freight service between Fort Worth and Amarillo along and over the applied for route above mentioned serving all intermediate points and giving a direct, overnight, through service between Fort Worth and intermediate points, and providing early morning delivery in each of said towns. The testimony so shows and the Commission so finds that freight moving by motor carrier from Fort Worth to points beyond Wichita Falls, on U. S. Highway No. 370, and intermediate between the towns of Wichita Falls and Amarillo must be interchanged between carriers at Wichita Falls, and that such interchange results in delay and inconvenience to the shipping and receiving public. Witnesses from Quanah, Childress, Memphis, Clarendon and other points intermediate between Wichita Falls and Amarillo on U. S. Highway No. 370, who are shippers and receivers of freight, and witnesses from Fort Worth, who are shippers of freight, testified that in many instances, that shipments moving to said points from Fort Worth, by rail and by motor carrier, are not delivered to the consignees until late forenoon or afternoon of the day following shipment and sometimes are not delivered until the second day following shipment, and that this is inconvenient to them and is an inadequate service; and such witnesses testified to the need of the proposed service of the applicant and that their convenience and necessity require a direct, one line service from Fort Worth to the points west of Wichita Falls on U. S. Highway No. 370 with overnight service and early morning delivery in each of said towns, which the Commission finds will result from the granting of this application."

Then follows a finding of inadequacy of the rail service, following which the order reads:

"The testimony further shows and the Commission so finds that the applicant proposes a daylight schedule, affording a morning departure from Amarillo and providing a same day service on shipments moving from Amarillo in the morning, consigned to Wichita Falls, and intermediate points, and affording delivery to the consignees in Wichita Falls, and...