Red Ball Motor Freight, Inc. v. Louisiana Public Service Commission

• Decision Date: 03 December 1973
• Docket Number: No. 53566,53566
• Parties: RED BALL MOTOR FREIGHT, INC. v. LOUISIANA PUBLIC SERVICE COMMISSION.
• Court: Louisiana Supreme Court

Page 337

286 So.2d 337

RED BALL MOTOR FREIGHT, INC. v. LOUISIANA PUBLIC SERVICE COMMISSION.

No. 53566.

Supreme Court of Louisiana.

Dec. 3, 1973.

Charles H. Ryan, Monroe, for plaintiff-appellant.

Marshall B. Brinkley, Gen. Coun., Louisiana Public Service Comm'n, Baton Rouge, for defendant-appellee.

SUMMERS, Justice.

Red Ball Motor Freight, Inc., was cited by the Louisiana Public Service Commission to show cause why it should not be found guilty of failing to adequately perform motor transportation service. Specifically, the complaint the Commission was investigating centered around delays and other difficulties brought about due to the discontinuance by Red Ball of its subagency terminal in Leesville, Louisiana. La.R.S. 45:161--172.

The matter was heard before the Commission on January 16, 1969 and February 26, 1969. Based upon the 'overall economy' of Red Ball's intrastate operations in Louisiana, the Commission, on May 20, 1969, ordered Red Ball to reestablish a terminal facility at Leesville comparable to that recently discontinued. Red Ball applied for a rehearing which was granted. After receiving additional evidence and upon further consideration, the Commission affirmed its order on May 5, 1970 with one dissent.

Being 'dissatisfied' with this result Red Ball filed a petition in the district court, as authorized by Section s192 of Title 45 of the Revised Statutes, to have the Commission order annulled and set aside. A pretrial conference was held at which it was understood that Red Ball would produce a witness at the trial on its behalf to testify 'about the operating costs of reopening the terminal facility at Leesville'; this testimony was to be supplemental to that given at the hearings before the Commission.

At the trial before the district judge counsel for Red Ball introduced in evidence the transcript of the proceedings before the Commission. He then sought to offer evidence 'not repetitious or cumulative' of the evidence taken before the Commission. Two of his witnesses would testify and offer exhibits relative to the Leesville terminal dealing with 'happenings and occurrences subsequent to the last hearing before the Commission.'

The offer to present this evidence was objected to by counsel for the Commission as irrelevant. The argument is that the Commission order was based upon evidence existing at the time of its issuance. Evidence of subsequent 'happenings and occurrences', it was contended, could therefore have no effect on the order's validity. Objection was also made that to permit the introduction of this 'new evidence' would result in a 'duplicity of trials.' And, thirdly, counsel for the Commission advanced the argument that orders of administrative tribunals are presumed to be correct and must be attacked, if at all, on the basis of the evidence with was before the administrative tribunal at the time the order was entered.

In sustaining the objections of Commission Counsel the trial judge stated that the matter before him was a petition for review of the Commission order to be determined solely on the basis of the record made before the Commission. The witness was nevertheless permitted to testify, however, and the evidence has been recorded and separately filed under a proffer. La.Code Civ.P. art. 1963. The ruling was erroneous and is reversed.

The Constitution prescribes that 'any party in interest may appeal from orders and decrees of the Commission to the courts by filing suit . . . against the Commission at its domicile.' La.Const. Art. VI, 5. Although establishing the right to review of Commission orders, the Constitution is silent as to the scope of review. Comment, 33 Tul.L.Rev. 199 (1958). However, the enabling statute (La.R.S. 45:1194) provides for the suspension of judicial proceedings upon presentation of new facts on review, and requires that the new evidence be sent to the Commission for its consideration before rendition of any judgment by the trial court.¹ By the requirement that new facts be sent back to the Commission the statute restricts the scope of review to evidence which the Commission has had an opportunity to consider. The procedure can only be dispensed with by stipulation of the parties. There is no such stipulation in this record.

As we view the statute, the evidence a plaintiff tenders for introduction in a suit to review a Commission order is necessarily to be governed by the rules of evidence concerning admissibility. However, when the evidence meets the test of admissibility, the trial judge must permit it to be introduced into the record. Thereupon, if the evidence is 'found to be different from that offered upon the hearing before the commission, or additional thereto, the court, before proceeding to render judgment . . . shall send a transcript of such evidence to the commission.' The language is mandatory. The trial judge has no discretion in the matter. La.R.S. 45:1194; White v. Louisiana Public Service Comm., 259 La. 363, 250 So.2d 368 (1971).

Therefore, our principal concern is with the admissibility of the evidence proffered at the trial. To make this judgment it is necessary to...