Thompson v. Hovey Petroleum Co., 9901
| Decision Date | 31 May 1950 |
| Docket Number | No. 9901,9901 |
| Citation | 232 S.W.2d 146 |
| Parties | THOMPSON et al. v. HOVEY PETROLEUM CO. et al. |
| Court | Texas Court of Appeals |
Kelley, Mosheim & Ryan, of Houston, J. T. Suggs, of Dallas, Baker, Botts, Andrews & Parish, of Houston, Wigley, McLeod, Mills & Shirley, of Galveston, Stroud & Dyer, of Dallas, Allen, Gambill & Gambill, Seth Barwise, all of Fort Worth, Kenneth McCalla, Walter Caven and Austin L. Hatchell, all of Austin, for Railroad Companies.
Jackson Littleton, of Kelley, Looney, McLean & Littleton, all of Edinburg, for Motor Carriers.
Morgan Nesbitt and Ewell Muse, Jr., of Austin, for R. A. Corbett & Younger Bros., Inc. Albert G. Walker, of Austin, for Hovey Petroleum Co., Cactus Transportation Co., Union Transports, Inc., J. F. Whitehurst, doing business as Coastal Transport Co., A. & A. Transport Co., A. E. York, and Texas Consolidated Transportation Co.
Rankin, Kilgore & Cherry, of Edinburg, for A. & A. Transport Co.
Price Daniel, Atty. Gen., and Durward M. Goolsby, Asst. Atty. Gen., for Railroad Commission.
This is a companion case to our No. 9900, Thompson, v. Railroad Commission, Tex.Civ.App., 232 S.W.2d 139, this day decided, and is an action, in the nature of a statutory appeal, brought by some twelve railroad companies, joined by five motor carriers, against the Railroad Commission and nine motor carriers to set aside orders of the Commission identical in all material respects with those orders described and involved in the Thompson case, supra, to which opinion reference is here made for all purposes.
Trial was to the court and after appellants had rested judgment sustaining the orders was rendered on the motion of appellees.
A joint brief has been filed by the rail appellants and a separate and joint brief has been filed by the motor appellants.
We will first discuss and dispose of the eleven points raised by the rail appellants.
Points 1, 2, 3, 4, 9, 10 and 11 are identical with points 1, 2, 3, 4, 6, 7 and 8, respectively, discussed and decided in the Thompson case, and our rulings are the same here.
Point 5 complains that the Commission in consolidating the hearings on the applications of the seven motor carrier appellees, over objection, violated its own rules and that the orders are, therefore, void.
Rule 39 of the Rules of Practice and Procedure of the Railroad Commission reads as follows:
'Joint Record of Hearing.
'No hearing of two or more applications, complaints or other proceedings shall be heard on a joint record without the affirmative consent of all of the parties both applicant and protestant, unless the presiding examiner shall find prior to the consolidation of such proceedings that substantial justice cannot be afforded without a consolidation.'
There was no express finding by the examiner that substantial justice could not be afforded without a consolidation, however, we believe that such finding should be implied from the fact of consolidation itself. Rail appellants do not contend that they have suffered any harm or prejudice from the consolidation and we have found none.
Points 6, 7 and 8 all relate to the state and sufficiency of the evidence. They are briefed together and will be discussed together.
Appellants offered evidence that the present service was adequate and that they could safely and efficiently transport all of the commodities involved between all points in Texas. Appellees offered no rebutting evidence in the usual sense of that term. They relied exclusively upon the order of the Commission which recited the facts found by the Commission.
Section 5a(d) of Article 911b, Vernon's Ann.Civ.St., provides that the Commission shall comply with Section 12 of said Article in granting an application of a specialized motor carrier. That section provides: '* * * in any contested hearing, the Commission shall, along with its order, file a concise written opinion setting forth the facts and grounds for its action, and such opinion shall be admissible as evidence on any appeal taken therefrom * * *.'
Such opinions were prepared by the Commission, incorporated in each order, and they are in evidence. Each order and opinion are, for all material purposes, identical. They are likewise identical with the opinions and orders extensively quoted from in the Thompson case, supra, and such quotations are incorporated here by reference.
In Railroad Commission v. McDonald, Tex.Civ.App., 90 S.W.2d 581, 584 (Austin C.C.A.), it was held that by reason of said Section 12, supra, 'Such findings of fact therefore, by the commission, set out as part of its order,...
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Alamo Express v. Union City Transfer
...1952, affirmed 1953, 345 U.S. 954, 73 S.Ct. 941, 97 L.Ed. 1375; Davis, Administrative Law, (1951), pp. 297-298; Thompson v. Hovey Petroleum Co., Tex.Civ.App., 232 S.W.2d 146, reversed on other grounds, 149 Tex. 554, 236 S.W.2d 491. The Supreme Court's opinion in that case sets out that the ......
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Roberdeau v. Railroad Commission
...Error Granted. The description of the orders involved made in this case was adopted by the Court of Civil Appeals in the Hovey case. 232 S.W.2d 146, 147. ...
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Alamo Express v. Union City Transfer
...were heard on a consolidated docket and the above statement may not clearly state the intent of the examiner.) In Thompson v. Hovey Petroleum Co., 232 S.W.2d 146, this Court said the fact of consolidation itself is an implied finding by the examiner that substantial justice could not be aff......
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Thompson v. Hovey Petroleum Co.
...as that prayed by the railroads. The trial court entered judgment for the defendants, which was affirmed by the Court of Civil Appeals. 232 S.W.2d 146. The railroad plaintiffs filed application for writ of error, as did the motor carrier intervenors, and both applications were granted; but ......