State ex rel. Missouri, Kansas & Oklahoma Coach Lines v. Public Service Commission

• Decision Date: 06 March 1944
• Citation: 179 S.W.2d 132,238 Mo.App. 317
• Parties: State ex rel. Missouri, Kansas & Oklahoma Coach Lines, Inc., et al., Appellants, v. Public Service Commission of Missouri, Respondent
• Court: Kansas Court of Appeals

179 S.W.2d 132

238 Mo.App. 317

State ex rel. Missouri, Kansas & Oklahoma Coach Lines, Inc., et al., Appellants, v. Public Service Commission of Missouri, Respondent

Court of Appeals of Missouri, Kansas City

March 6, 1944

Appeal from Cole Circuit Court; Hon. Sam C. Blair, Judge.

Affirmed.

James P. Aylward, Ralph M. Russell, C. J. Quimby and June R. Rose for appellants.

(1) Applicant's witnesses did not offer any competent evidence that the present available service of authorized rail and motor carriers was inadequate, inefficient or insufficient. There was no competent evidence offered upon which the Commission could base a finding of public convenience and necessity had it given reasonable consideration to the service being rendered by presently authorized carriers as required by Sec. 5724, R. S. Mo. 1939. (2) The Commission's order, while finding "the Commission believes and finds that public convenience and necessity would be promoted by the granting of the application," makes no finding of inadequacy of presently authorized service. The requirement of a finding of necessity, as well as public convenience, further implies that if another utility is adequately rendering the service proposed, or is able and willing or may be required to do so then the necessity would not exist and the certificate should be refused. State ex rel. v. Atkinson, 275 Mo. 325 335. (3) The application should have been denied because the evidence on the part of appellants showed beyond question that the fourteen schedules being operated by authorized carriers were adequate, and that appellants were willing and able to put on any additional service the Commission might find necessary or convient, and were willing and able to re-adjust time schedules in eight or ten days to meet the convenience of the nine witnesses appearing for applicant, if the Commission should, as it could have, direct them to do so. In the light of this testimony the certificate should have been refused. State ex rel. Atkinson v. Commission supra; Sec. 5725, R. S. Mo. 1939. (4) The Commission was required to give consideration to the effect the inauguration of the proposed transportation might have upon other transportation service being rendered (see Sec. 5724, R. S. Mo. 1939). If the Commission gave any consideration to the fourteen schedules being operated by other carriers, except to note their existence, the report and order is silent thereon. (5) The report and order under the evidence fails to give reasonable consideration to present service; fails to give reasonable consideration to the effect on such service to be had by the proposed service; and fails to consider appellants' willingness to offer and render any additional service the respondent Commission might deem necessary or convenient, as the Commission was required to do before granting the application. Secs. 5724 and 5725, R. S. Mo. 1943. (6) The order of the Commission was based on incompetent testimony of witnesses none of whom knew how much service was already available by authorized carriers, and said witnesses admitted they did not know certain of appellants' schedules even operated, nor did they know the time of operation. The order was based directly on the incompetent hearsay testimony of Homer Lee Hurst, who testified he did not use bus service, but was permitted to state what service would be more convenient to others than himself. The order being based on incompetent testimony should be reversed. State ex rel. Potashnick Truck Service v. Public Service Comm., 129 S.W.2d 69. (7) The commission could not grant a permanent certificate upon a finding of temporary need. Sec. 5724, R. S. Mo. 1939; State ex rel. Ringo v. Public Service Comm., 234 Mo.App. 549, 132 S.W.2d 1080; State ex rel. Gaines v. Canada, 131 S.W.2d 217; Lober v. Kansas City, 74 S.W.2d 815, 824.

John P. Randolph, General Counsel and Lester G. Seacat, Assistant Counsel, for respondent, Public Service Commission.

D. D. McDonald for Raymond R. Terrill.

(1) The burden of proof is upon the party attacking an order of the Commission issuing a certificate of convenience and necessity to show by clear and satisfactory evidence that the order is unreasonable and unlawful. Sec. 5703, R. S. Mo. 1939; State ex rel. Case v. Public Service Comm., 298 Mo. 303, 249 S.W. 955, 960, 965; State ex rel. v. P. S. C., et al., 271 Mo. 155, 196 S.W. 369; State ex rel. Ozark Power & Water Co. v. P. S. C., et al., 287 Mo. 522, 533, 229 S.W. 782, 785. (2) In reviewing order of Public Service Commission authorizing issuance of certificate of convenience and necessity to motor carriers, under Section 5724, R. S. Mo. 1939, the test is whether order of Commission is unreasonable or unlawful. Secs. 5703, 5724, R. S. Mo. 1939; State ex rel. St. P. & K. C. S. L. R. Co. v. P. S. C., 98 S.W.2d 699, 702; State ex rel. Alton R. Co. v. P. S. C., 70 S.W.2d 611, 64; State ex rel. Mo. Pac. R. Co. v. P. S. C., 297 S.W. 47, 49, and cases cited; State ex rel. City of St. Joseph v. Busby, 274 S.W. 1067, 1070. (3) The grant of intrastate motorbus carrier's application for extension of route was not precluded by fact that railways were operating in same territory, if Public Service Commission believed public convenience and necessity would be promoted by extension, notwithstanding service being furnished by railways was convenient and adequate and extension would adversely affect railways. State ex rel. Pitcairn, et al. v. P. S. C., 111 S.W.2d 222, 228. (4) No corporation or person or public utility shall in any court urge or rely on any ground not set forth in the motion for rehearing before the Commission. Sec. 5689, R. S. Mo. 1939; State ex rel. Alton R. Co. v. P. S. C., 100 S.W.2d 474; State ex rel. Buffum Telephone Co. v. P. S. C., 272 Mo. 627, 199 S.W. 962; State ex rel. v. Atkinson, 269 Mo. 634, 192 S.W. 86; State ex rel. Pitcairn et al. v. P. S. C., 111 S.W.2d 222, 230.

Bland, J. Cave, J., concurs; Shain, P. J., not sitting.

OPINION

BLAND

This is an appeal by Missouri, Kansas and Oklahoma Coach Lines, Inc., and Southwestern Greyhound Lines, Inc., which, for convenience, are hereinafter referred to as protestants, from an order and judgment of the Circuit Court of Cole County, affirming an order of the Public Service Commission. The order granted to Raymond R. Terrill, hereinafter referred to as Terrill, a certificate of convenience and necessity authorizing him to operate as a passenger-carrying motor carrier between the cities of Springfield and Lebanon, over and along U.S. Highway No. 66. Terrill had theretofore been granted authority to operate, as a motor carrier of passengers over Highway No. 66, between Springfield and Lebanon, with authority to serve intermediate points, but with no authority to carry passengers either way between Springfield and Lebanon. In the present application Terrill sought, and was given authority by the Commission, to carry passengers between said points. At the hearing the application of Terrill was opposed by the contestants.

The Commission made a report and order reciting: "Applicant operates two roundtrips daily between Lebanon and Springfield, subject to the limitations" that he carry no passengers between Lebanon and Springfield in either direction.

"The application is supported by the testimony of the applicant Mr. Raymond R. Terrill and nine other witnesses. Their testimony may be summarized as follows:

"Service by applicant between Springfield and Lebanon would not necessitate any more travel mileage, as the vehicles of applicant will move on the same time schedules as now and it would not be necessary, in the event the application is granted, for the applicant to place additional sections on his time schedules as his coaches can handle additional traffic. Mr. Terrill stated that he has had requests for the establishment of service between Lebanon and Springfield and that a rendition of such service would be profitable to him.

"Mr. H. A. Stone, General Agent of the General American Life Insurance Company, who resides in Springfield, has occasion to travel between Lebanon and Springfield at an average of about two trips weekly. Mr. Stone states that the railway service rendered by the St. Louis-San Francisco Railway Company is crowded and that the Southwestern Greyhound buses are 'usually full of passengers and occasionally more than full', thus necessitating him to wait for a second section of the time schedule. Mr. Stone's principal objection to the service of the presently authorized carriers between Lebanon and Springfield is that the time schedules are not times to serve conveniently between said points.

"Mr. H. T. Goatcher a resident of Springfield, Missouri, a representative of Hermon Brownlow Company selling automobile parts and accessories, likewise makes complaint of the time schedules presently operated, particularly pointing out that the time schedule leaving Springfield at 7:54 A. M. would be more convenient for his company if it were operated at about 8:30 A. M.

"Mr. Jack Lloyd of Springfield, Missouri, district manager of the Springfield office of the General American Life Insurance Company at St. Louis, considers that time schedules now operated by the applicant in his local service heretofore authorized by the Commission would be convenient for his use in traveling from Springfield to Lebanon.

"Miss Virginia Turner, Mrs. Mable James, Miss Muriel Appling and Miss Elaine Wray who reside in Lebanon but who are employed or attend college at Springfield, prefer the time schedules of the applicant, between the points involved herein, to those of the protestants.

"Mr Homer Lee Hurst, a police officer of Lebanon, Missouri, testified that the service of the applicant would be more convenient to...