State ex rel. Twehous Excavating Co., Inc. v. Public Service Commission, State of Mo.

• Decision Date: 19 May 1981
• Docket Number: No. WD,WD
• Citation: 617 S.W.2d 104
• Parties: STATE ex rel. TWEHOUS EXCAVATING COMPANY, INC., a corporation, et al., Relators, v. PUBLIC SERVICE COMMISSION, STATE OF MISSOURI, Respondent, and Nip Kelley Equipment Company, Inc., Intervenor. 31660.
• Court: Missouri Court of Appeals

Page 104

617 S.W.2d 104

STATE ex rel. TWEHOUS EXCAVATING COMPANY, INC., a corporation, et al., Relators, v. PUBLIC SERVICE COMMISSION, STATE OF MISSOURI, Respondent and Nip Kelley Equipment Company, Inc., Intervenor.

No. WD 31660.

Missouri Court of Appeals, Western District.

May 19, 1981.

James C. Swearengen, Jefferson City, for relators.

Kent Michael Ragsdale, Jefferson City, for respondent.

Bernard Peter McDonnell, Jr., St. Louis, for intervenor.

Before KENNEDY, P. J., and SHANGLER and SOMERVILLE, JJ.

KENNEDY, Presiding Judge.

This is an appeal by Nip Kelley Equipment Company from the judgment of the circuit court reversing an order of the Public Service Commission which had granted to it certain authority to operate as a common carrier over irregular routes in intrastate commerce. We find that the order of the Public Service Commission was supported by competent and substantial evidence and we therefore reverse the judgment of the circuit court and reinstate the order of the Commission.

The authority granted was to operate as a common carrier by motor vehicle in the transportation of heavy equipment, machinery and commodities, which, due to size or weight, or both, require the use of specialized equipment and/or specialized handling, or both, to load or unload, over irregular routes, between all points in Bollinger, Cape Girardeau, Mississippi, Perry, Scott and Stoddard Counties, Missouri, and between all points in that area, on the one hand, and on the other hand all points in Missouri, with the following exceptions: No service was authorized to points in Missouri lying north of Highway 54 and west of Highway 63, roughly the northwest quadrant of the state; the authority was restricted against any traffic originating in New Madrid County; and no service should be rendered that originated or terminated in St. Louis or its commercial zone.

Applicant Kelley was situated in Cape Girardeau. The application was made in the name of "Claude Kelley, III, d/b/a Nip Kelley Trucking Company". Later Nip Kelley Equipment Company, Inc., was substituted.

The application was filed September 17, 1976, after Kelley was advised by Commission representatives that his heavy-hauling operations without Commission authority were unlawful. A hearing was held on November 15, 1976, and on March 3 and 4, 1977. The Commission denied the authority by order of September 20, 1977, but granted a rehearing. The matter was heard a second time on March 29 and 30, 1978. The kind of authority requested here and granted by the Commission was to transport heavy or large objects, over irregular routes. Mentioned in evidence were heavy machinery and equipment, and large concrete sewer pipe. Users of the service are contractors, manufacturers and sellers of equipment and machinery, and fabricators of the concrete sewer pipe. The special equipment mentioned in evidence were lowboys and flatbed trailers, to be pulled by tractors. Kelley had two flatbed trailers and two lowboys, and two tractors that could be used in the heavy-hauling business. Kelley already held authority for dump truck operations, and was engaged in other related businesses.

The protestants were various holders of heavy-hauling authority. They included the respondents who are represented in this court, namely: Twehous Excavating Company, Inc., Wayne Helderman Trucking Company, Daniel Hamm Drayage Company, Inc., Aalco Express Company, Inc., and W. L. Waggoner Trucking Company, Inc.

The applicant asserts upon this appeal, and the protestants deny, that the Commission's order granting the authority was supported by competent and substantial evidence. It is that question which is before us for resolution.

The statutory criteria governing the issuance of a certificate of public convenience and necessity authorizing the transportation service proposed to be furnished by the applicant are found in § 390.051, RSMo 1978. In order to grant the authority the Commission must have found from the evidence that "public convenience and necessity will be promoted or that there is a public need for the creation of the service proposed; that the applicant is qualified properly to perform the service proposed and to conform to the provisions of §§ 390.011 to 390.176 and the requirements, rules and regulations of the Commission established thereunder". The Commission is enjoined to give "reasonable consideration to the transportation service being furnished by any common carrier by rail or motor vehicle and the effect which the proposed transportation service may have upon such carriers". Sec. 390.051.6. The protestants' main attack is at the point of "public convenience and necessity" requiring the proposed service. Protestants argue that their service is adequate to meet the public need.

I. Public need; public convenience and necessity.

The cases which have construed "public need" and "public convenience and necessity" have stated the matter in a variety of ways, but they are agreed that the "need" for the service is not a strict need or strict necessity, and on the other hand the authorization of the service may not be based upon the mere convenience of its prospective users. If the granting of the authorization subserves a genuine and reasonable public interest in promptness and economy of service, then the public "convenience and necessity" or "public need" is served. State ex rel. Beaufort Transport Co. v. Clark, 504 S.W.2d 216, 219 (Mo.App.1973); State ex rel. National Trailer Con., Inc. v. Public Serv. Comm., 488 S.W.2d 942, 945 (Mo.App.1972); State v. Burton, 374 S.W.2d 639, 643 (Mo.App.1963). The effect upon other common carriers is to be considered by the Commission, but an adverse effect upon them yields to a public need for the service. State ex rel. Churchill Trk. Lines v. Pub. Ser. Com., 555 S.W.2d 328, 335 (Mo.App.1977). Neither the circuit court nor we the scope of our respective reviews is the same are to overturn the Commission's decision if it is "lawful and reasonable", §§ 386.510, 386.540, RSMo 1978. The "lawfulness" of the Commission's decision is admitted here, and its "reasonableness" is at issue. The resolution of that question depends in turn upon whether the decision rested upon competent and substantial evidence. State ex rel. Util. Consumers Council, etc., v. Public Service, 585 S.W.2d 41, 47 (Mo. banc 1979).

The Commission could reasonably conclude from the evidence before it that users and prospective users of the services applicant Kelley proposed to furnish, reasonably required more prompt service than existing carriers were furnishing, at more economical rates, and that applicant was qualified to, and would, supply the need.

There were only two of the protesting carriers with facilities in the Cape Girardeau area. One was protestant Twehous Excavating Company, which during the week of the second hearing had entered into a one-year lease for a facility at Sikeston, Missouri, and on the day before the hearing had located one lowboy at that location. The principal Twehous facility was located four and a half miles east of Jefferson City, Missouri, a distance of about 210 miles from Cape Girardeau. Mr. Twehous of Twehous Excavating Company said that their reason for establishing the Sikeston facility was to service southeast Missouri calls, and also because it had been requested to do so by Fabick Tractor Company located at Sikeston. Fabick Tractor Company had been a customer of Twehous since 1968. The testimony would allow the construction that the Fabick Tractor Company business was a primary consideration in the location of the Twehous facility at Sikeston.

Until very shortly before the second hearing, Twehous had done scarcely any solicitation of business in the Cape Girardeau area. Its solicitation of business had been principally in towns nearer their equipment in Jefferson City. They were not listed in the Cape Girardeau yellow pages.

Twehous charged deadhead rates of 53 cents per mile.

Twehous had made frequent trips to Cape Girardeau but mostly from the St. Louis and Jefferson City areas. The authority granted to applicant Kelley in the present case would not overlap those trips, for Kelley was excluded from the St. Louis zone and from points north of Highway 54 and west of Highway 63. The Twehous trucks would usually return empty from Cape Girardeau.

Mr. Baches, transportation manager for Twehous, testified that there was sufficient traffic in the area for Twehous, for Helderman and Kelley, all three.

The other hauler with a local facility was Mr. Wayne Helderman, who had acquired his authority from Heuer Trucking Company after the November 1976 hearing and...