State ex rel. Transport Delivery Co. v. Burton

• Decision Date: 03 November 1958
• Docket Number: No. 22813,22813
• Citation: 317 S.W.2d 661
• Parties: STATE of Missouri, on the Relation of TRANSPORT DELIVERY COMPANY, a Corporation, Appellant, v. Tyre BURTON, Charles Henson, E. L. McClintock, D. D. McDonald and William Barton, Members and Comprising the Public Service Commission of Missouri, and John Groner Motor Carrier, Inc., Respondents.
• Court: Missouri Court of Appeals

Page 661

317 S.W.2d 661

STATE of Missouri, on the Relation of TRANSPORT DELIVERY

COMPANY, a Corporation, Appellant, v. Tyre BURTON, Charles Henson, E. L. McClintock, D. D.

McDonald and William Barton, Members and

Comprising the Public Service Commission

of Missouri, and John Groner

Motor Carrier, Inc.,

Respondents.

No. 22813.

Kansas City Court of Appeals, Missouri.

Nov. 3, 1958.

Hendren & Andrae, Jefferson City, for appellant.

Glenn D. Evans, Gen. Counsel, Thomas J. Downey, Asst. Gen. Counsel, Jefferson City, for respondent.

Rozier, Carson & Nacy, Jefferson City, for John Groner Motor Carrier, Inc.

MAUGHMER, Commissioner.

Appellant, Transport Delivery Company, has been engaged in the business of transporting petroleum since 1936. Since 1951, it has been the only authorized common carrier of such products from the Sinclair Terminal at Mexico, Missouri. Since 1942, John Groner Motor Carrier, Inc., designated hereinafter as 'Groner', has been engaged first as a contract and later as a common carrier of petroleum products. Groner was authorized to transport from terminals located at Mount Vernon and Belle, Missouri, but its principal supply point was the Phillips Pipeline Terminal at Jefferson City, and its customers there included Cities Service Oil Company, Farm Bureau Service Company, J. D. Street Oil Company and the D-X Sun Ray Oil Company. Early in 1957, these Groner shippers, or some of them, in order to reduce transportation costs or for other reasons to them sufficient, came to an agreement with Sinclair to draw their supplies in the central Missouri area from the Sinclair Terminal at Mexico instead of from the Phillips Terminal at Jefferson City. Cities Service effectuated such transfer as of January 1, 1957 and Farm Bureau as of July 1, 1957. Street is definitely committed, and Sun Ray will possibly change. On January 27, 1957, Groner filed with respondent Public Service Commission of Missouri its application for extension of its Certificate of Convenience and Necessity to include transporting petroleum products from the Sinclair Mexico terminal, intrastate throughout Missouri. After a hearing, respondent granted the requested additional authority effective as of August 31, 1957. Appellant, who appeared before the Commission as protestant, by certiorari, secured a review before the Circuit Court of Cole County, which court affirmed the Commission. An appeal to this court followed in due course.

Appellant concedes that Groner is qualified to perform the service sought. The Commission found its equipment was in good condition and its financial condition sufficiently strong to enable it to do so. Earl Downen, General Manager of Farm Bureau Service Company, testified that during 1956, his company distributed 1,779,126 gallons from the Jefferson City terminal with Groner as transporter. He said that he was responsible for the purchase and distribution for his company; that there was a seasonal variance in demand, it being heavier during the spring months, and that Groner's service which began in April, 1953, had been satisfactory. He testified that his company supported Groner's application in 1954 for common carrier authority at Jefferson City because it had experienced difficulties with appellant's service and it was felt that a choice of carriers would be beneficial. He said the difficulties with appellant's service included delayed deliveries which sometimes extended to a week. This witness expressed the opinion that the petroleum business is highly competitive; that competition must be met, especially as to deliveries being on time or customers are lost and that his experience had been that better service is rendered where there is a choice of carriers. He also stated that Groner extended holiday and Sunday service; that Groner had been handling all of their business; that the company wanted to use Groner at Mexico, and that no loss of existing business would thereby come to appellant.

L. W. Witte, formerly Traffic Manager, and now Consultant for D-X Sun Ray Oil Company, supported the application. He, too, said that the business was highly competitive, and that prompt delivery was essential to the retention of satisfied customers. He expressed the belief that in every instance he knew about where there was more than one supplier, there were at least two carriers, and that better service was thereby received. Mr. Witte stated that a supplier needs a choice of carriers in order to receive satisfactory transportation. He also said that Groner had handled his company's business out of the Jefferson City terminal satisfactorily; that Groner handled c. o. d. shipments and performed 'key-stop' service but that not all their carriers were authorized or acceptable for such service.

Mr. J. D. Street, President and General Manager of J. D. Street & Company, Inc., testified that his company contemplated receiving products from the Mexico terminal; that Groner had been and was now their transporter out of Jefferson City; that his service was quite satisfactory, and based upon the witness' experience there should be from two to five carriers out of a terminal.

Paul Hite, Manager of Supply and Distribution for Cities Service, supported the application. He stated that his company used Groner as its transporter out of Jefferson City, Mount Vernon and Belle, and would use it out of Mexico if authority is obtained. He expressed the belief that it is not advisable to have only one carrier, and that a choice of carriers is necessary for the best service. It was his testimony that Cities Service was unable to secure a prompt delivery from appellant to Kirksville in January, 1957, and had been required to make such delivery from Jefferson City with Groner as the transporter. Appellant has hauled Cities Service products from the Mexico terminal since January 1, 1957, and excepting the Kirksville incident referred to above, its service has been satisfactory. Appellant has made arrangements, partly by way of leased transports, to handle all of the business from the Mexico terminal. The President of appellant company stated that it was not presently doing any 'key-stop' service, c. o. d.s or holiday loadings, and that its rates were higher from the Mexico terminal, but that this rate variance was caused by the labor union.

The action of the Commission in granting the order or certificate is not triable de novo by the circuit or appellate courts. These courts may merely review and determine if the order is supported by competent and substantial evidence, Section 386.510, V.A.M.S.; State ex rel. Kansas City v. Public Service Commission, 362...