Potashnick Truck Service, Inc. v. Missouri & Arkansas Transportation Company

• Decision Date: 12 January 1942
• Docket Number: 4-6555
• Citation: 157 S.W.2d 512,203 Ark. 506
• Parties: POTASHNICK TRUCK SERVICE, INC., v. MISSOURI & ARKANSAS TRANSPORTATION COMPANY
• Court: Arkansas Supreme Court

157 S.W.2d 512

203 Ark. 506

POTASHNICK TRUCK SERVICE, INC., v. MISSOURI & ARKANSAS TRANSPORTATION COMPANY

4-6555

Supreme Court of Arkansas

January 12, 1942

Appeal from Pulaski Circuit Court, Second Division; Lawrence C Auten, Judge; affirmed.

Judgment affirmed.

John S. Mosby, for appellant.

A F. House and W. S. Walker, for appellee.

OPINION

SMITH, J.

The Missouri & Arkansas Transportation Company, a subsidiary of the Missouri & Arkansas Railway Company, applied to the Corporation Commission of this state for a Certificate of Convenience and Necessity to operate truck lines over the following routes in this state.

1. Gateway to Harrison, via U.S. highways 62 and 65, serving all intermediate points.

2. Harrison to Clinton, via U.S. highway 65, serving all intermediate points.

3. Clinton to Kensett, via State highway 16, serving all intermediate points.

4. Clinton to Little Rock, via U.S. highway 65, serving no intermediate points.

5. Wooster to Heber, via State highways 25 and 16, serving no intermediate points between Wooster and Quitman, and all intermediate points between Quitman and Heber.

6. Searcy to Little Rock, via U.S. highway 67, serving no intermediate points.

At the hearing before the commission the Missouri Pacific Railroad Company, the Chicago, Rock Island & Pacific Railway Company, and Motor Express, Inc., appeared and protested the granting of any authority to operate between Searcy and Little Rock, this being proposed route No. 6. After hearing testimony as to the need of further service between those cities, the commission held that the application, so far as it related to route 6, should be denied, whereupon the three protestants above-named withdrew from the proceeding.

The other protestants were: Potashnick Truck Service, Fred W. Jones Truck Line, Powell Brothers Truck Line, Film Transit, Inc., Jones Truck Line, Derickson Truck Line, and Heber Springs Truck Line. They were heard, and they presented their objections to the granting of the permit. During the hearing, the Derickson Truck Line withdrew its protest. After the conclusion of the testimony, which began on April 17, 1940, the petition was submitted on briefs, and on November 16, 1940, an order was entered by the commission granting authority to operate over routes 1 to 5, inclusive. On December 4, 1940, the remaining protestants perfected an appeal to the Pulaski circuit court, where, after additional briefs had been filed, the court, on June 9, 1941, affirmed the order of the commission. In the meantime the Jones Truck Line, one of the original protestants, filed a disclaimer, saying it did not care to appeal from the order of the commission and later Carl Matthews, doing business as Heber Springs Truck Line, withdrew from the proceeding, after stating that he had ceased his operations as a motor carrier. All the other protestants have prosecuted and are prosecuting this appeal from the judgment of the circuit court affirming the order of the commission.

We said in the case of Missouri Pacific Railroad Co. v. Williams, 201 Ark. 895, 148 S.W.2d 644, that the statute under which this proceeding was had required this court, upon the appeal to it, to hear the matter de novo, and to render such judgment upon the appeal as appeared to be warranted and required by the testimony. And so we do, but we cannot ignore the fact appearing in the record before us that a protracted hearing was had, both before the commission and in the circuit court on appeal, and, while the burden was upon petitioner to make the affirmative showing that the public convenience and necessity required the issuance of the permit, that finding has been made, and should now be affirmed unless it appears to be contrary to a preponderance of the testimony. We hear chancery appeals de novo, but, when we have done so, we affirm the findings of the chancellor on questions of fact unless his findings appear to be contrary to a preponderance of the evidence. Leach v. Smith, 130 Ark. 465, 197 S.W. 1160.

The protestants produced nine witnesses, two of whom appeared in opposition to granting a permit covering the route from Little Rock to Searcy; but the commission denied that part of the application, from which action the petitioner prayed no appeal. Of the remaining seven witnesses all but two were owners or employees of the opposing truck lines. The testimony of a much larger number of witnesses was to the effect that the public convenience and necessity required the issuance of the permit prayed for.

Opposing counsel, in their briefs, cite numerous cases from other jurisdictions defining the term "Public convenience and necessity," as employed in similar statutes of other states; but our...