State ex rel. Churchill Truck Lines, Inc. v. Public Service Commission

• Decision Date: 08 August 1977
• Docket Number: No. KCD,KCD
• Citation: 555 S.W.2d 328
• Parties: The STATE of Missouri ex rel. CHURCHILL TRUCK LINES, INC., and Bethany Express, Inc., Appellants, v. The PUBLIC SERVICE COMMISSION of the State of Missouri, Respondent, McCarty Truck Lines, Inc., Intervenor-Respondent. 28229.
• Court: Missouri Court of Appeals

Page 328

555 S.W.2d 328

The STATE of Missouri ex rel. CHURCHILL TRUCK LINES, INC. and Bethany Express, Inc., Appellants, v. The PUBLIC SERVICE COMMISSION of the State of Missouri, Respondent McCarty Truck Lines, Inc., Intervenor-Respondent.

No. KCD 28229.

Missouri Court of Appeals, Kansas City District.

Aug. 8, 1977.

Warren H. Sapp, Kansas City, for appellants.

Leonard B. Rose, Kansas City, for intervenor-respondent McCarty Truck Lines, Inc.

Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.

WASSERSTROM, Judge.

McCarty Truck Lines, Inc. applied to the Missouri Public Service Commission for a certificate of public convenience and necessity to conduct operations as a motor vehicle common carrier of general commodities between Kansas City, St. Louis and St. Joseph and their respective commercial zones, on the one hand, and on the other the cities of Bethany (and all points within a radius of 25 miles thereof) and Princeton (and all points within a radius of 20 miles thereof). Certain truck lines whose existing authority overlapped that sought by McCarty in the present application intervened in opposition before the Commission. Following a hearing, the Commission granted the application with minor variations. ¹ Two of the intervenors, Churchill Truck Lines, Inc. and Bethany Express, Inc., sought judicial review of the Commission's order, which was affirmed by the circuit court. From that decision, Churchill and Bethany Express take the present appeal.

Appellants assign four Points Relied On. The first of these constitutes purely an abstract statement of law and presents nothing for review. Rule 84.04(d); Bonds v. City of Webster Groves, 432 S.W.2d 777, 783 (Mo.App.1968). The other points relate to (1) the sufficiency of the evidence, and (2) the effect of the Commission's failure to hold an open meeting for the purpose of voting upon the McCarty application. We affirm.

I. SUFFICIENCY OF THE EVIDENCE

Appellants' position concerning the alleged insufficiency of the evidence divides into a number of sub-arguments to the effect that the record: (a) fails to show a need for additional service in the area or that the existing carriers are not providing adequate service; (b) fails to warrant the broad territorial scope of authority granted; and (c) fails to justify the Commission's "ignoring" intervenors' evidence of the adverse effect which approval of the McCarty application would have upon them. In reviewing these challenges, the evidence must be measured by the well established rules that the findings of the Commission will not be disturbed if they are supported by substantial evidence and that once the authority has been granted by the Commission, the protestants must assume the burden of proof of showing that the Commission's findings are not so supported. State ex rel. Beaufort Transfer Co. v. Clark, 504 S.W.2d 216, 217 (Mo.App.1973).

A. The Need for Additional Service

The evidence brought forward by the applicant McCarty consisted of the testimony of 38 witnesses representing 14 cities and towns located in the area which the applicant proposed to serve. McCarty conceded that the testimony of four of those witnesses had no probative value and that testimony was so treated in the Commission's extensive findings of fact. The testimony of the 34 other witnesses is summarized by the Commission in its Report and Order which exceeds 25 pages in length and amply reveals the poor service received by area residents from truck lines then currently serving the area and the superior service rendered by McCarty to businesses and individuals in the area which it was already serving.

At the time of the hearing the area now in question was served largely by three truck lines for the transportation of general commodities in bulk. With respect to those three, the Commission found that the testimony established the following:

"Both Bethany Express and Circle M are financially weak. It is apparently their position that this weakness is due to a decline in the freight being shipped into and out of the area in question. However, this record indicates a decline in the business of these carriers resulting from poor service rather than a mere decline in the total freight shipped into the area in question. Although the management of both these carriers has changed hands recently, there has been no marked improvement in the quality of service provided to this area. In the case of Circle M it is not likely that any will occur. In the case of Bethany Express some slight improvement is evident but the company is far from providing the kind of service that the shipping public is entitled to expect.

Churchill Truck Lines, Inc. has been operating in a portion of the area in question for many years. While Churchill's services are not wholly inadequate in those areas where it serves, it has a poor record of claim payment and delivery time which makes its service less adequate than the shipping public should be required to accept."

These findings are well supported by the evidence. Numerous witnesses testified that their experience as receivers of freight carried by Bethany Express and Circle M has been characterized by: (1) slow service which causes harmful delay when receiving sometimes urgently needed merchandise; (2) rough or careless handling which results in damaged merchandise; (3) inattention, delay or outright refusal to pay claims; (4) the necessity of prepayment of part of the freight charges in instances where another truck line had interlined with Bethany Express which resulted from Bethany's weak financial condition and past failure to pay such charges; and (5) delay or failure to pick up merchandise which had been delivered but which for some reason had to be returned.

The interlining prepayment problem was illustrated by one individual who testified that he spent $100 per week in long distance calls trying to locate freight and arrange prepayment so that merchandise could be released to Bethany Express for the final leg of the haul. Another delay instance was related by Mr. McComas of McComas Motor Company in Albany, Missouri, who testified that six months prior to the hearing, Circle M (or Hall & Wells, as it was known under previous ownership) solicited business, but failed to pick up the shipment; McComas called his supplier three days after the goods were due and discovered that the shipment was still sitting on the dock in Lenexa. Another witness testified that there were times, using either Bethany or Circle M, when three out of four shipments a week were late. Max Tunks, the owner of Circle M, himself admitted that some of his freight bills revealed that delivery required 5 to 7 days.

Several witnesses gave graphic descriptions of damaged freight, one of whom testified that one and one-half months before the Commission hearing he had ordered cartons of envelopes from a company which he knew had a covered dock. When the envelopes arrived at his place of business, they had been soaked by water or left out in the rain and he found himself left with 15,000 envelopes with the flaps stuck shut. Another witness testified on behalf of Gentry City Memorial Hospital that in the course of shipment via Circle M and Bethany Express in the 17 months prior to the hearing, chemicals were frozen in shipment on five or six occasions which rendered them useless.

Appellants argue in their brief that "both Bethany Express and Circle M had, at the time of the hearing, worked their way out of financial crises through improved efficiencies by new managements." Insofar as Circle M is concerned, that statement is wholly incorrect. Tunks, the Circle M owner, admitted that his principal occupation was operating a lumberyard, that he only spends an hour to an hour and a half a day in connection with the operation of the truck line; that a lot of changes would have to be made before the truck line could make him a living and that "it's not paying me."

Nor, contrary to appellants' contention, does the performance of Bethany Express appear to be improving significantly. Carl J. Coleman, who at the time of the hearing was the current manager of Bethany Express, admitted under cross-examination that although some improvement had been made, the company still "could be better than they are right now." Furthermore, certain records introduced by Bethany Express itself confirm the claims of slow service made by the various witnesses. The inadequacy of service is explained at least in part by the fact that Bethany has no terminal or dock facilities in either Kansas City or St. Joseph.

The complaints about the service rendered by Churchill, a larger and more stable truck line, were less numerous, but forceful nevertheless. In all, eleven witnesses registered dissatisfaction with the service provided for them by Churchill, mentioning some problems as delayed or slow service, short hours or absence of Saturday service, failure to keep track of merchandise during the various stages of shipment, delay in picking up merchandise, especially that which had to be returned, poor delivery practices, inefficient claims payments and inconvenience in the delivery and unloading process due to the fact that ungainly over-the-road vehicles are used rather than transferring freight to smaller trucks for delivery.

Appellants emphasize certain exhibits offered into evidence by Churchill which trace the dates on which freight was received and delivered thus showing time in transit made up from Churchill's business records from January through May of 1973. This evidence was offered in rebuttal to complaints concerning inefficiency of Churchill's service, testified to by witnesses supporting the McCarty application. Reliance upon these exhibits overlooks the fact that the records do not pertain to the same time period about which the McCarty witnesses testified. The hearing opened on February 5 and continued to February 9, 1973, when applicant...