Tennessee Cartage Co., Inc. v. Pharr

• Decision Date: 01 February 1947
• Parties: TENNESSEE CARTAGE CO., Inc., v. PHARR et al.
• Court: Tennessee Supreme Court

199 S.W.2d 119

184 Tenn. 414

TENNESSEE CARTAGE CO., Inc., v. PHARR et al.

Supreme Court of Tennessee.

February 1, 1947

Appeal from Chancery Court, Davidson County; Thomas A. Shriver Chancellor.

Certiorari proceeding by the Tennessee Cartage Company, Inc., against Samuel S. Pharr, Chairman of the Railroad and Public Utilities Commission, and others, to review the commission's action granting a certificate of convenience and necessity to a certain partnership to haul freight. From a decree dismissing the petition, the Tennessee Cartage Company, Inc., appeals.

W. H. Turner, of Carthage, and J. H. Ballew, of Nashville, for appellant.

Clint Beasley and I. D. Beasley, both of Carthage, and Joe Brown Cummings and

p>Page James Clarence Evans, both of Nashville, for appellee.

GAILOR Justice.

This is an appeal from the action of the Chancellor of Part One of the Chancery Court of Davidson County, in dismissing petition for certiorari filed by the Cartage Company, to review the action of the Railroad & Public Utilities Commission, by which a certificate of 'convenience and necessity' was issued to a partnership doing business as the Smith County Freight Lines. The certificate authorized the partnership to haul freight 'from Nashville to Carthage Tennessee over U.S. Highway 70-N, serving Bellwood, Rome Roca City, with closed doors between Lebanon and Carthage and from Carthage to Dickson Springs over Highway 25 serving Mononville, Riddleton, and also from Carthage to Granville, Tennessee over Highway 70 and State Highway 53, serving all intermediate points.'

The Chancellor dismissed the petition for certiorari upon the following grounds:

'In the instant case, after an examination of the record and due consideration of carefully prepared and excellent briefs of counsel for petitioners and defendants, the Court is of opinion:

'1. That the evidence in the record as to whether or not the public convenience and necessity will be promoted by the issuance of the certificate in question, is in conflict, there being some evidence of a substantial nature to support the affirmative of this proposition.

'2. That the evidence is in conflict as to whether or not the territory involved will support the service of the respondents, without ruinous competition to the petitioner, and that there is some evidence of a substantial nature to support the affirmative of this proposition.

Hence, the Court is of opinion that, under the decisions of our courts of last resort, which are at present extant and binding on this Court, it would not be justified in setting aside the orders of the Commission granting the certificate in question.'

The rule applied by the Chancellor to limit the scope of his review, is thus stated in a recent opinion of this Court:

'When the Commission has proceeded regularly within its jurisdiction, the courts will refuse to disturb its findings where there is material evidence to support conclusions that are neither arbitrary nor unlawful.' Dunlap v. Dixie Greyhound Lines, 178 Tenn. 532, 538, 160 S.W.2d 413, 415.

Five assignments of error are made on the appeal here, but they present two determinative questions: (1) What is the quantum of evidence necessary to justify affirmance by the Trial Court of action by the Commission? (2) Was the requisite quantum of proof to be found in the transcript of the proceedings before the Commission? The transcript was filed in the Chancery Court and is filed here on appeal.

(1) The gist of appellant's position on the first question is that on its petition for certiorari in the Chancery Court, is was entitled to more extensive review of the evidence on which the action of the Commission was taken than that evidenced by the Chancellor's affirmance of the action of the Commission on the finding that such action was supported by 'evidence of a substantial nature.' The appellant maintains that there is a distinction between 'evidence of a substantial nature,' 'substantial evidence' and 'material evidence.' It is insisted that since the Chancellor found only that the action of the Commission was supported 'by evidence of a substantial nature,' he did not perform the judicial function required of him under the petition for certiorari, nor justify his action in affirming the action of the Commission. In no case cited by appellant, or that we have been able to find, is any distinction made in the practical application of the three phrases uquoted above. They are used interchangeably to express the fact that there was, or was not, a 'rational basis' for the action taken by an administrative board of experts such as the Railroad & Public Utilities Commission. Mississippi Valley Barge Line v. United States, 292 U.S. 282, 54 S.Ct. 692, 78 L.Ed. 1260, 1265; Rochester Tel. Co. v. United States, 307 U.S. 125, 59 S.Ct. 754, 83 L.Ed. 1147, 1161.

'But as has often been pointed out, this, as in the case of other findings by administrative bodies, means evidence which is substantial, that is, affording a substantial basis of fact from which the fact in issue can be reasonably inferred.' National Labor Rel. Bd. v. Columbian E. & S. Co., 306 U.S. 292, 59 S.Ct. 501, 505, 83 L.Ed. 660, 665; Washington V. & M. Coach Co. v. National Labor Rel. Bd., 301 U.S. 142, 57 S.Ct. 648, 81 L.Ed. 965; Consolidated Edison Co. v. National Labor Rel. Bd., 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126.

'In making that body's determination as to the facts in these matters conclusive, if supported by evidence, Congress entrusted to it primarily the decision whether the evidence establishes the material facts. Hence in reviewing the Board's ultimate conclusions, it is not the court's function to substitute its own inferences of fact for the Board's, when the latter have support in the record.' National Labor Rel. Bd. v. Hearst Publications, 322 U.S. 111, 64 S.Ct. 851, 860, 88 L.Ed. 1170, 1184; National Labor Rel. Bd. v. Nevada Consol. Copper Corp., 316 U.S. 105, 62 S.Ct. 960, 86 L.Ed. 1305.

In the opinions of this Court, the phrase 'material evidence' has been commonly used in discussing concurrence between administrative boards and the lower Courts, Dunlap v. Dixie Greyhound Lines, supra; National Optical Stores Co., Inc., v. Bryant, 181 Tenn. 266, 273, 181 S.W.2d 139; between the Trial Court and the Court of Appeals, Pacific Mut. L. Ins. Co. v. McCrary, 161 Tenn. 389, 391, 32 S.W.2d 1052; between the jury and the Trial Judge, Van Huss v. Rainbolt, 42 Tenn. 139; Curran v. State, 157 Tenn. 7, 4 S.W.2d 957.

To express the identical rule of practice and the scope of review, the Federal Courts have commonly used the phrase 'substantial evidence.' National Labor Rel. Bd. v. Columbian E. & S. Co., 306 U.S. 292, 59 S.Ct. 501, 83 L.Ed. 660, 665; National Labor Rel. Bd. v. Hearst Publications, 322 U.S. 111, 64 S.Ct. 851, 88 L.Ed. 1170. As evidence that the terms 'material' and 'substantial' have been used interchangeably, this Court in repudiating the 'scintilla rule,' said, speaking through Mr. Justice Chambliss:

'This is sometimes called the 'scintilla rule,' but perhaps inaccurately. More than a 'scintilla' is requisite. As well said in Louisville & N. R. Co. v. Johnson['s Adm'x], 161 Ky. 824, 171 S.W. 847, 'the word 'scintilla,' however, as applied in our practice does not mean that the case should be submitted to the jury where there is merely a 'spark' or a 'glimmer' of evidence.' It means that, when there is some evidence of a material or substantial nature to support the plaintiff's case, the court will not undertake to...