V.I.P. Limousine Service, Inc. v. Herider-Sinders, Inc.

• Decision Date: 07 October 1976
• Docket Number: INC,HERIDER-SINDER,No. 2--774A161,2--774A161
• Citation: 171 Ind.App. 109,355 N.E.2d 441
• Parties: V.I.P. LIMOUSINE SERVICE, INC., Appellant (Protestant below), v., Appellee (Applicant below).
• Court: Indiana Appellate Court

Page 441

355 N.E.2d 441

171 Ind.App. 109

V.I.P. LIMOUSINE SERVICE, INC., Appellant (Protestant below), v. HERIDER-SINDERS, INC., Appellee (Applicant below).

No. 2--774A161.

Court of Appeals of Indiana, Second District.

Oct. 7, 1976.

Alki E. Scopelitis, of Sommer, Tinkham, Barnard, Freiberger & Scopelitis, Indianapolis, for appellant.

Fred W. Garver, Richard E. Aikman, Jr. and Michael K. Irwin of Stewart, Irwin, Gilliom, Fuller & Meyer, Stephen W. Sutherlin, Indianapolis, for appellee.

SULLIVAN, Judge.

The Public Service Commission granted a certificate of public convenience and necessity which authorized Herider-Sinders, Inc. (Herider), to conduct, as a common carrier, an intrastate charter limousine service. V.I.P. Limousine Service, Inc., (V.I.P.), a protestant in the proceedings before the Commission, appeals.

Ind.Ann.Stat. 8--2--7--15 (Burns Code Ed. 1973), the statute which regulates the authority of the Commission to issue common carrier certificates, sets forth only two broadly stated criteria: (1) 'that public convenience and necessity requires the proposed operation' and (2) 'that the proposed operation will not unreasonably impair the existing public service of any authorized common carrier . . ..' These criteria constitute the ultimate facts to be found by the Commission before a certificate may be issued. However, judicial review may not be conducted solely with reference to findings which are limited to these ultimate facts.

As stated in City of Evansville v. Southern Indiana Gas & Electric Co. (2d Dist. 1976) Ind.App., 339 N.E.2d 562, 571:

'. . . the statutory standard requires that the Commission's decision contain specific findings on all the factual determinations material to its ultimate conclusions.'

Thus, the Commission must find the 'basic facts' which support a conclusion that the ultimate fact exists. Transport Motor Express, Inc. v. Smith (2d Dist. 1972) Ind.App., 289 N.E.2d 737, reversed on other grounds 311 N.E.2d 424 (Ind.). In the latter case we said:

'. . . the specific findings we need are those which are relevant to the contested issues, the disputed issues, which is to say, the specific facts which are basic to the ultimate facts upon which the parties have been unable to agree.

As to the other elements of the claimant's burden of proof, the uncontested and undisputed elements, on which the Board must make a finding, it is relatively unimportant whether the facts are found specifically or whether the Board merely 'mouthes the general language of the statute". 289 N.E.2d at 744. (footnotes omitted).

We may not, under the guise of judicial review, infer from the findings of ultimate fact the existence of the basic facts essential to those ultimate conclusions. To do so is to indulge in the fact finding process which is the exclusive domain of the Commission. Transport Motor Express, Inc. v. Smith, supra.

The basic contention of V.I.P. upon appeal is that the evidence before the Commission showed, at best, a mere preference, as opposed to need, by some members of the public for the service proposed by Herider. Further V.I.P. contends that with reference to the adequacy vel non of existing service, the evidence shows only isolated instances in which existing service was less than fully adequate. V.I.P. thus argues that the evidence falls short of establishing the requisite public convenience and necessity and does not establish that existing limousine service will not be unreasonably impaired. These disputed or contested issues are not in any manner resolved by the Commission's findings. Those findings are, in their entirety, as follows:

'The Commission, having examined the application, the evidence introduced in this cause, the Exceptions of the Protestant V.I.P. Limousine Service, Inc. and their brief in support thereof, and being duly advised in the premises, is of the opinion and now finds:

1. That the Commission has jurisdiction of the parties hereto and the subject matter of this cause, which now are properly before the Commission for finding, determination and order.

2. That the motion to dismiss that portion of the application dealing with Medical Car escort service on the grounds that such service was not presently or ever has been regulared by the Public Service Commission should be granted, and it will be so ordered.

3. That the Applicant is an Indiana corporation, with its office located at 961 N. Meridian Street, Indianapolis, Indiana 46204.

4. That the proposed amended operations will not unreasonably affect the efficient public service of any authorized common carrier, intrastate, in the area to be served by the Applicant.

5. That the character and condition of the motor vehicle equipment proposed to be used by Applicant upon the public highways of Indiana are such that same may be operated without injury or damage to such highways, and without unreasonable interference with the use of such highways by the general public.

6. That Applicant and its employees are able and willing to comply with the laws of Indiana and the Rules and Regulations of the Public Service Commission as the same apply to a common carrier of passengers, intrastate.

7. That Applicant has sufficient and well-maintained equipment and sufficient and well-trained personnel to render the proposed service; and that Applicant has the financial ability to render the proposed service.

8. That the Exceptions of Protestant V.I.P. Limousine Service, Inc. should be overruled, and it will be so ordered.

9. Taht the public convenience and necessity require the granting of the application for the requested authority as amended; and that a certificate of public convenience and necessity should be issued to the Applicant in accordance herewith; and it will be so ordered.'

V.I.P. urges us to establish certain 'minimum standards of proof' or 'a minimum burden of proof' which must be met by an applicant in every common carrier proceeding, citing Graves Trucking, Inc. v. B. G. Trucking, Inc. (3d Dist. 1972) 151 Ind.App. 563, 280 N.E.2d 834.

V.I.P. has misconstrued the import of the Graves Trucking decision. That case involved an application seeking authority to operate as a contract carrier pursuant to Ind.Ann.Stat. 8--2--7--2(h)(b) (Burns Code Ed. 1973) and 8--2--7--20 (Burns Code Ed. 1973). The court there concluded that the evidence before the Commission was insufficient to support the granting of a certificate saying:

'We are of the opinion that some minimum standards of proof should be established to prevent the development of a practice whereby the supporting shippers may designate and select at will the carriers that they prefer to handle their commodities. This not only would work a great disadvantage upon the common carriers authorized to handle such commodities but would usurp the statutory duty of the Public Service Commission of Indiana and circumvent the clear intent of the Legislature. Selection of a favorite contract carrier by shippers without some standards of proof to protect the public could eventually precipitate an erosion of common carrier service to the public which the statute prohibits. Therefore, we hold that the following minimum standards of proof should be met. In addition to the testimony of each individual shipper stating the specific transportation service required to satisfy its distinct needs, each supporting shipper should testify to the following:

1. Identify the commodities shipped or received.

2. Describe the traffic movements of these commodities to and from given points or areas.

3. State the approximate volume of these commodities to be tendered the applicant.

4. State the carrier service now being used to move the shipper's traffic.

5. State deficiencies, if any, in existing carrier service to shipper.

6. Each individual shipper should state his knowledge of existing carrier service authorized to carry the commodities being considered by the Commission.'

280 N.E.2d at 839--40.

Graves Trucking, does not call for the establishment of a unique, inflexible minimum standard of proof applicable to every type of contract or common carrier application. The context in which the Graves Trucking case speaks of minimum standards or a minimum burden connotes the nature and type of evidence necessary to support the issuance of a contract carrier certificate. Contract carriers are required 'to meet the distinct need of each individual customer' Ind.Ann.Stat. 8--2--7--2(h)(b), supra. The 'distinct need' criterion is more susceptible to specificity of evidence than the 'public convenience and necessity' criterion which must be met by a common public carrier. Within that susceptibility lies the distinguishing point between Graves Trucking, supra and this case.

In the 'distinct need' contract carrier situation, the supporting shippers are a clearly defined evidentiary source, whose needs are to be served by the applicant. The identified individual shippers can readily testify as to the specifics of their respective 'distinct needs'. The common carrier applicant may not so readily amass and present supportive...