Whitfield Transp. v. Tucson Warehouse & Transfer Co.

• Court: Arizona Supreme Court
• Writing for the Court: WINDES; PHELPS
• Citation: Whitfield Transp. v. Tucson Warehouse & Transfer Co., 276 P.2d 954, 78 Ariz. 136 (Ariz. 1954)
• Decision Date: 29 November 1954
• Docket Number: No. 5868,5868
• Parties: , 7 P.U.R.3d 532 WHITFIELD TRANSPORTATION, Inc., a corporation, Appellant, v. TUCSON WAREHOUSE & TRANSFER CO., a corporation, Appellee.

Page 954

276 P.2d 954

78 Ariz. 136, 7 P.U.R.3d 532

WHITFIELD TRANSPORTATION, Inc., a corporation, Appellant, v. TUCSON WAREHOUSE & TRANSFER CO., a corporation, Appellee.

No. 5868.

Supreme Court of Arizona.

Nov. 29, 1954.

Yale McFate, Phoenix, for appellant.

Darnell, Robertson, Holesapple & Spaid, Tucson, for appellee.

WINDES, Justice.

Tucson Warehouse & Transfer Company, a corporation, filed a complaint in the Superior Court of Maricopa County against the Arizona Corporation Commission alleging in substance that the defendant-commission had theretofore issued plaintiff a certificate of convenience and necessity authorizing it to operate as a common carrier for the transportation of various classes of freight including liquids in bulk within Pima and Pinal counties; that while this certificate was in force, pursuant to the application of Whitfield Transportation, Inc., the defendant commission, after hearing, granted such applicant a certificate of convenience and necessity to operate motor vehicles as a common carrier for the transportation of petroleum products in bulk in tank trucks between points and places within in the state of Arizona; that the commission prior to granting the Whitfield certificate made no finding that the service rendered by the plaintiff was inadequate or insufficient and did not find that plaintiff was unable to or is not furnishing the same service in Pima and Pinal counties which Whitfield offered to perform; that the commission had not directed plaintiff to improve its service; that plaintiff was able, ready and willing to institute whatever service public convenience and necessity require; and that the commission did not give plaintiff an opportunity to provide satisfactory, sufficient or adaquate service under its certificate. Defendant's answer admitted the issuance of the two certificates, admitted the commission did not find plaintiff's services to be inadequate or that plaintiff was unable to furnish the service, and admitted the commission did not direct plaintiff to improve the service and did not give it an opportunity to provide satisfactory and adequate service.

Whitfield Transportation, Inc., was allowed to intervene and filed an answer wherein for all legal purposes involved herein made the same admissions of fact as those made by the defendant.

Plaintiff moved for summary judgment, supporting the motion with affidavits substantially following the allegation of facts set forth in the complaint. In opposition to the motion, intervenor filed the affidavit of its Arizona manager setting forth the extent of operations under its certificate and indicating that it had been extensively serving Pima and Pinal counties; that public convenience and necessity requires its operations; and that plaintiff had completely failed and refused to serve under its certificate in the transportation of petroleum and petroleum products in bulk. Summary judgment was entered to the effect that the order of the commission granting the Whitfield...