Rubion Transfer & Storage Co. v. Louisiana Public Service Commission

• Decision Date: 07 November 1960
• Docket Number: No. 44704,44704
• Citation: 123 So.2d 880,240 La. 440
• Parties: RUBION TRANSFER & STORAGE CO., Inc. v. LOUISIANA PUBLIC SERVICE COMMISSION.
• Court: Louisiana Supreme Court

Page 880

123 So.2d 880

240 La. 440

RUBION TRANSFER & STORAGE CO., Inc. v. LOUISIANA PUBLIC SERVICE COMMISSION.

No. 44704.

Supreme Court of Louisiana.

Nov. 7, 1960.

Jack P. F. Gremillion, Atty. Gen., Joseph H. Kavanaugh, Sp. Counsel, Baton Rouge, for defendant-appellant.

Polk, Foote & Neblett, Alexandria, for intervenors-appellees.

Dart, Guidry & Dart, New Orleans, for plaintiffs-appellees.

FOURNET, Chief Justice.

The plaintiff, Rubion Transfer & Storage Co., Inc., a Louisiana corporation which holds a certificate of public convenience and necessity as a common carrier of special commodities (including household furniture) over irregular routes by motor, with the restriction that all commodities must originate in, or be destined to, points in St. Tammany Parish and the Parish of Tangipahoa, instituted suit against the Louisiana Public Service Commission seeking annulment of Order No. 7181, reaffirmed by Order 7407, which granted to Dunwoodie McDuffie a certificate of public convenience and necessity as a common carrier of household goods over irregular routes within a radius of one hundred miles of New Orleans and asked that the said orders be cancelled as they 'included all points within the parishes of St. Tammany and Tangipahoa, as to which petitioner has heretofore been granted a certificate.' From a judgment decreeing the said orders to be null, void and of no effect, and that they be cancelled, the Louisiana Public Service Commission has appealed.

The record discloses that McDuffie, doing business as Mack's Moving Service and domiciled in New Orleans, applied to the Commission for a certificate authorizing him to operate as a common carrier motor freight service, transporting 'household goods' over irregular routes 'within a radius of one hundred miles from New Orleans;' that after notice to competing common carriers, the matter came on for hearing and testimony was adduced. On April 3, 1957, at the close of the hearing, a certificate of public convenience and necessity, No. 7181, was granted to McDuffie; application for rehearing filed by the opponents (holders of state-wide certificates for the transportation of household goods) having been considered and denied, McDuffie began operating under his certificate. Shortly thereafter the Commission received a complaint from Rubion Transfer & Storage Company, domiciled in Covington (St. Tammany Parish), that it did not receive formal notice of the above hearing; ¹ the matter was reopened, additional witnesses were heard, McDuffie's witnesses were recalled for cross-examination by counsel for Rubion Transfer & Storage Co., Inc., and on November 27, 1957, by Order No. 7407, the Commission's previous Order No. 7181 of April 3, 1957 was reaffirmed. The instant suit followed.

The plaintiff, Rubion Transfer & Storage Co., Inc. in its petition alleged in substance that on the showing made by McDuffie the public convenience and necessity would not be promoted to any degree whatsoever by the granting of an additional certificate in the designated area; that in addition to the plaintiff, there are state-wide carriers well equipped to handle the transportation of household goods within the radius of one hundred miles of New Orleans; and actually that plaintiff's own equipment and facilities, as shown by the record, are 'idle and unused most of the time;' and plaintiff submitted that not only was the service rendered by it adequate and sufficient, but because of the Commission's inclusion in its certificate to McDuffie of points in St. Tammany and Tangipahoa Parishes, it 'will sustain a large financial loss, which Order will unlawfully divert traffic from petitioner.' Four New Orleans transfer and storage companies, holders of state-wide certificates (Gallagher Transfer & Storage Co., Inc., Henry G. Bauer, O. K. Storage & Transfer Co., and Douglas Public Service Corporation), intervened in support of the plaintiff, alleging that in view of the satisfactory and adequate service being rendered by them and other certified carriers, and the ability and willingness on their part to give additional service if needed over the identical territory covered by McDuffie's certificate, the issuance of Order No. 7181 by the Commission was contrary to law and a flagrant abuse of the discretionary powers vested in said Commission. The case was submitted on the evidence and testimony contained in the transcript of proceedings before the Public Service Commission and the District Judge, expressing the view that from the evidence it appeared that present facilities offered by existing licensed certified carriers adequately served the area, rendered judgment in favor of plaintiff and against defendant, as noted above.

Counsel for defendant appellant--mindful that under the express provisions of R.S. 45:164 '* * * No new or additional certificate shall be granted over a route where there is an existing certificate, unless it be clearly shown that the public convenience and necessity would be materially promoted thereby',--rely on the settled jurisprudence of this Court that orders of the Public Service Commission should be accorded great weight, will not be overturned by the courts in the absence of a clear showing of abuse of power, and that where the order is not arbitrarily or grossly contrary to the evidence and no error of law has been committed, the court will not substitute its judgment for that of the Commission, ² and argue that the Commission's action in granting the certificate is clearly supported by the testimony of witnesses for McDuffie to the effect that as a result of construction of the causeway across Lake Pontchartrain and the ensuing growth and development, with resulting migration of families, there was definite need for additional means of transporting household goods and that inconvenience and trouble in moving had been experienced, such as inability to get service at the time desired or failure of the mover to appear until hours or even days after the time agreed upon. Counsel call particular attention to Rubion's testimony blaming cut-rate noncertified movers in his locality for lack of sufficient business to support even one certified household goods carrier in that territory, ³ and counter with the circumstance that McDuffie, operating under a certificate and observing the...