Mountain Trucking Co. v. Daniels

• Citation: 197 S.E.2d 819,156 W.Va. 855
• Decision Date: 17 July 1973
• Docket Number: No. 13270,13270
• Court: Supreme Court of West Virginia
• Parties: MOUNTAIN TRUCKING COMPANY, a corporation, et al. v. Clinton DANIELS et al., and the Public Service Commission of West Virginia.

Page 819

197 S.E.2d 819

156 W.Va. 855

MOUNTAIN TRUCKING COMPANY, a corporation, et al. v. Clinton DANIELS et al., and the Public Service Commission of

West Virginia.

No. 13270.

Supreme Court of Appeals of West Virginia.

Submitted May 1, 1973.

Decided July 17, 1973.

Syllabus by the Court

1. An applicant for a permit to operate in this state as a contract carrier as provided in Code, 1931, 24A--3--3(a), as amended, must establish to the satisfaction of the Public Service Commission, Inter alia, that the privilege sought will not impair the efficient public service of any authorized common carrier or common carriers adequately serving the same territory and this is especially applicable when a protest to the application is received by the commission from a common carrier serving the same territory.

2. A final order of the Public Service Commission, based upon findings not supported by the evidence, will be reversed and set aside by this Court upon review.

Hanna & Ross, Homer W. Ahnna, Jr., Alexander J. Ross, Charleston, for petitioners.

Phillip C. Duff, Legal Div., Charleston, for Public Service Commission.

CAPLAN, Justice:

This is an appeal from an order of the Public Service Commission of West Virginia entered on June 1, 1972, pursuant to a hearing on an application for a contract carrier permit. By the provisions of said order Clinton Daniels, the applicant, was granted a permit to operate three motor vehicles as a contract carrier in the transportation of road building materials in Kanawha, Clay and adjoining counties under contract with C. M. Geupel Construction Company.

This appeal is prosecuted by Mountain Trucking Company, a corporation, and S. S. 'Joe' Burford Company, a corporation, each having appeared at the aforesaid hearing as protestants opposing the grant of a contract carrier permit to Clinton Daniels. Both protestants are common carriers operating under certificates of convenience and necessity issued by lawful orders of the Public Service Commission. Each has authority under said certificates to haul road building materials in the area covered by the subject contract carrier permit.

At the hearing before the commission Daniels testified that he sought a contract carrier permit to operate three motor vehicles in the transportation of road building materials in Kanawha, Clay and adjoining counties. He alleged that such activities would be undertaken pursuant to the terms of a contract with C. M. Geupel Construction Company, Inc. and placed the contract in evidence. While the instrument filed is somewhat vague it appears to meet the requirements of a contract as contemplated by Code, 1931, 24A--1--2, as amended. It appears from the examination and cross-examination of Mr. Daniels that the contract would terminate within a few days of the hearing. He acknowledged that he did not have another contract but hoped to obtain further work under contract with the same company. At the time of the hearing he was operating under a temporary permit issued by the Public Service Commission.

Protesting the issuance of such permit S. Franklin Burford appeared on behalf of S S. 'Joe' Burford Company. He testified that his company had thirty-two trucks which, because of a lack of business, were not in operation at all times; that he had not been contacted by the Geupel company to haul for it; that they have done similar hauling for other contractors and are ready, willing and able to respond to any call by said company; that his company is a member of the West Virginia Motor Tariff Bureau and that it is bound by the tariffs published by said bureau; and that the granting of this contract carrier permit would adversely affect his company. In responding to the last question he editorialized that many contract carrier permits are being issued to owners of a small number of trucks by the commission and that if this practice continues common carriers could be forced out of business.

Dempsey Jones, President of Mountain Trucking Company, offered testimony similar to that of Burford. He did say, however, that his company had done some hauling for Geupel. He, too, testified that some of his trucks were idle due to lack of work and that his company was ready and able to supply this service for the Geupel company and all others. Mr. Jones testified that, as a member of the West Virginia Tariff Bureau, his company and that of Burford operate on a rate of $16.00 per hour whereas Daniels' contract revealed that his charge was $12.00 per hour. No one appeared from the Geupel company to testify as to the need of Daniels' services or to show that the protestants were not furnishing adequate service in that area.

Upon the evidence adduced at the hearing the commission, in its order, expressed its opinion and found that the applicant was entitled to the authority which he sought. Thereupon it ordered the issuance of the permit as aforesaid.

The appellants, protestants below, assign the following errors: (1) The Commission's order is in violation of Code, 1931, 24A--3--3(a), as amended, wherein it provides that no contract carrier permit shall be issued unless it is established to the satisfaction of the...