State ex rel. Byers Transp. Co. v. Public Service Com'n

• Decision Date: 03 March 1952
• Docket Number: No. 21675,21675
• Parties: STATE ex rel. BYERS TRANSP. CO., Inc. et al. v. PUBLIC SERVICE COMMISSION et al.
• Court: Missouri Court of Appeals

Page 825

246 S.W.2d 825

STATE ex rel. BYERS TRANSP. CO., Inc. et al. v. PUBLIC SERVICE COMMISSION et al.

No. 21675.

Kansas City Court of Appeals, Missouri.

March 3, 1952.

Tyre W. Burton, Frank J. Iuen, Jefferson City, Clayton W. Allen, Rockport, for appellants.

James T. Blair, Jr., June R. Rose, Thomas P. Rose, all of Jefferson City, for respondents.

SPERRY, Commissioner.

This proceeding was instituted by Caton Brothers Truck Transport, applicant, before the Missouri Public Service Commission, seeking a permit to operate a regular freight trucking service from Kansas City through St. Joseph, serving Oregon, Forest City, Mound City, Maitland, Skidmore, Craig, Fairfax, Tarkio, Rockport, Langdon and Corning; also to render service between St. Joseph and the last above mentioned towns, and between Kansas City and St. Joseph in the hauling of livestock only.

The Commission, after hearing testimony adduced by applicant and by six protesting motor carriers and a rail carrier all named in the caption hereof, denied a minor portion of the authority sought but granted the major portion thereof. Protestants sought and obtained a review by the circuit court of Cole County. That court found that the Commission's order and decision, as it relates to Tarkio, is based on testimony having but little tendency to support the order and is against the overwhelming weight of the evidence; and that the evidence is wholly insufficient to support the order and decision of the Commission as it relates to the authority granted in reference to Fairfax, Craig, Forest City, and Oregon. It was adjudged that the order and decision be reversed and the cause remanded to the Commission for further action.

The scope of review in this case is governed by the provisions of Mo.R.S.1939, Sec. 386.510, V.A.M.S., which provides that suits brought to review the orders and decisions of the Commission 'shall be tried and determined as suits in equity.' While the court may not substitute its judgment for that of the Commission, it is authorized to determine whether the Commission could have reasonably made its findings and reached its results upon consideration of all the evidence before it. Goetz v. J. D. Carson Co., 357 Mo. 125, 206 S.W.2d 530, 532; and if the order and decision is clearly against the overwhelming weight of the evidence it should be set aside. Dittmeier v. Missouri Real Estate Commission, Mo.App., 237 S.W.2d 201, 203.

From an examination of the record we find the evidence in support of the award, as it relates to the convenience and necessity for the service at Tarkio, Fairfax, Craig, Forest City and Oregon, to be weak and unconvincing.

Mr. Caton, one of the applicants, testified to the effect that he lived in Mound City; that he had received, almost daily, calls for service in that general area from Kansas City but he was not specific as to who asked for the service, or why, or the volume. General testimony to the effect that he received calls for service from people in the area, is not the kind of testimony required to prove necessity and convenience.

Mr. Roberts, bookkeeper for the John Deere Imp., Co., at Tarkio, stated that he had held that position for four months; that he had no knowledge regarding the freight service that was available to the people of Tarkio, and in other towns in that community; that he did not know the rates charged, the quality of service available and rendered by various truck lines; that his company receives its heavy freight over the C. B. & Q. R. R., small parts by express, and uses its own truck extensively. Although he stated that the proposed new service was desirable and needed, his testimony is, obviously, entitled to but very little weight, and is limited to Tarkio.

Mr. Tourtelotte has a gasoline business at Westboro and operates a truck line from Omaha to Rockport, Tarkio, Fairfax and Westboro; he stated that he was not familiar with the service rendered in that area by Williams Truck Lines which, the evidence showed, has served almost all of that general area for many years. He refused to state that there was a...