Thompson v. Hovey Petroleum Co.
| Decision Date | 07 February 1951 |
| Docket Number | No. A-2829,A-2829 |
| Citation | 236 S.W.2d 491,149 Tex. 554 |
| Parties | THOMPSON et al. v. HOVEY PETROLEUM CO. et al. |
| Court | Texas Supreme Court |
Kelley, Mosheim & Ryan and Baker, Botts, Andrews & Parish, all of Houston J. T. Suggs and Stroud & Dyer, all of Dallas, Wigley, McLeod, Mills & Shirley, Galveston, Allen, Gambill & Gambill and Seth Barwise, all of Fort Worth, and Kenneth McCalla, Walter Caven and Austin L. Hatchell, all of Austin, for petitioners Railway Companies.
Kelley, Looney, McLean & Littleton, Edinburg, Rogers Kelley and Jackson Littleton, Edinburg, for petitioners Motor Carriers.
W. D. Benson, Jr., Lubbock, and Albert G. Walker, Austin, for Hovey Petroleum Co.
Ewell H. Muse, Jr., and Morgan Nesbitt, Austin, for Corbett et al.
Rankin, Kilgore & Cherry, Edinburg, for A. & A. Transport Co.
Price Daniel, Atty. Gen., and Durward M. Goolsby, Asst. Atty. Gen., for R. R. Commission.
Prior to May 5, 1949, Respondents Hovey Petroleum Co. (dba Hovey Transport Co.), Cactus Transportation Co., Union Transportation, Inc., Younger Brothers, Oil Transports, Inc., Texas Consolidated Transportation Co., R. A. Corbett, A. E. York, J. F. Whitehurst (dba Coastal Transportation Co.), and A. and A. Transport Co. were duly authorized motor carriers, operating under specialized motor carrier certificates issued by the Railroad Commission of Texas. In December, 1948, and January, 1949, each of them filed with the Railroad Commission an application to amend its certificate so as to authorize it to transport designated chemicals 'in bulk in tank trucks, in liquid form, to, from and between all points in Texas.'
These applications were protested by Edgar M. Linkenhoger (dba Transport Co. of Texas), Robert P. York (dba York Transport Co.), York Transport Company, Inc., Commercial Oil Transport, Inc., and Robertson Transport Co., Inc., motor carriers (three of whom has special permits to transport all, while the other two had such permits to transport part, of the products sought to be transported by respondents), as well as by 13 railroads operating in Texas.
On March 17, 1949, hearing on these applications was begun before an examiner for the Railroad Commission, all applications being heard together over the objection of protestants. Evidence was introduced both by applicants and by protestants.
Upon report of its examiner, the Railroad Commission on May 5, 1949, entered its order granting the amended certificates.
The protesting railroads filed suit in the District Court of Travis County against all the applicant motor carriers, Hovey Petroleum Co. et al., and the Railroad Commission, seeking to have the Commission's order declared void and to enjoin the applicant motor carriers from operating thereunder. The five protesting motor carriers intervened as plaintiffs, seeking the same relief 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 we have concluded that our disposition of the cause turns on Point of Error No. 1, of the motor carriers' application, which is: 'The Court of Civil Appeals erred in holding that there was 'substantial compliance' with the clear and mandatory requirements of Section 5a(d), Article 911b, which provides that the Commission's orders shall be void unless they include 'full and complete findings of fact pointing out in detail' the inadequacies of existing carriers, the orders not having included any findings at all (much less the kind required) as to these Motor Carriers * * *.'
Art. 911b, sec. 5a(d), Vernon's Ann.Civ.St., referred to in the above point, provides: * * *' (Italics ours.)
The language of the Commission's order which purports to set forth 'full and complete findings of fact pointing out in detail the inadequacies of the services and facilities of the existing carriers' is as follows:
'The Commission Further Finds from the evidence that applicant presented witnesses who testified as to the need for the proposed service, said witnesses being representatives of various chemical industries located in various parts of the State of Texas and engaged in the manufacture, sale, distribution and handling of the chemicals hereinabove set out, some of said companies so represented being engaged in so handling some of the chemicals above named, while others thereof are engaged in so handling others of said chemicals, but that the evidence of each and all of said witnesses was along the same general line as to the need for the proposed service, which in addition to other matters, was as follows: that they had been handling said chemicals in tank cars, it having been necessary that many of said chemicals be transported in tank cars that were lined with various materials in order that same could be safely handled and transported; that the tanks or tank trucks used in transporting said chemicals, or some of them, have to be lined with various materials in order that said chemicals can be safely transported; that some of the tank trucks used in the transportation of said chemicals will have to be lined while others will have to be constructed of stainless steel or aluminum, and that some of said chemicals can be transported in iron tanks; that there has been delay in the transportation of said chemicals by using tank cars, in that the supply of such cars were short at times and they were unable to secure same as and when needed, but that tank cars had been more easily secured of late; that various customers of said companies over the State did not have very much storage and had to purchase said chemicals in small quantities in order to have a place to store same; that this made it necessary to ship same to said customers in small drums; that the use of drums made it much more expensive to supply the needs of said customers; that many of their customers were not located on rail lines and could not, therefore, secure the delivery of chemicals by the use of tank cars; that, if the proposed service is authorized, chemicals can be delivered to such customers by tank trucks, and it will also be possible to build up an additional market for said products and make it much more economical for said customers as they would not then have to pay the extra charge for the drums used in shipping same; that the proposed service is needed as a...
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...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 Commission consolidated some 13 or 14 applications, but nothing further......
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