930 TOR_RANS V. AMC COMMERCE COMM 'N [246 ROBERT TORRANS, D/B/A COMMERCIAL STORAGE & DIST. CO . V. ARKANSAS COMMERCE COMMISSION, ET AL 5-4870 440 S.W. 2d 558
Opinion Delivered May 12, 1969 1. Appeal & Error—Harmless Error—Review on Trial De Novo.— Error of circuit court in applying substantial evidence rule in case appealed from commerce commission held not prejudicial where record on appeal from circuit court is reviewed de novo by Supreme Court and commerce commission's order will be affirmed if not against the preponderance of the evidence. 2. Commerce Commission—Proceedings & Orders—Review.—In weighing evidence upon review of commerce commission's order, Supreme Court does not substitute its judgment for that of the commission but accords due deference to commission's findings. 3. Commerce Commission—Certificates—Grounds for Issuing.— Generally, a certificate of public convenience and necessity may not be granted where there is existing service in operation over the route applied for unless the service is inadequate, or additional service would benefit the general public, or the existing carrier has been given an opportunity to furnish such additional service as may be required. 4. Commerce Commission—Denial of Application for Intrastate Transportation of Goods—Review.—Findings of commerce commission and its order denying appellants' application for authority to transport goods and equipment intrastate held nct against the weight of the evidence.
ARK.] TORRANS v. ARK. COMMERCE COMM'N 931 Appeal from Pulaski Circuit Court, Second Division; Warren E. Wood, Judge; affirmed. Arnold & Arnold for appellant. Louis• Tarlowski for appellees. • J. FRED JONES, Justice. This aPpeal is from a-judgment of the Pulaski County Circuit Court affirming an order of the Arkansas Commerce Commission..in denying an application by Robert Torrans, doing business as Commercial Storage & Distribution Co., for authority to transport household and other goods and equipment i.ntrastate. Torrans' main place of business is located in Texarkana, Arkansas, and he had a Texas permit authorizing intrastate operation . in • that •state. He already had Arkansas authorization to transport household goods within Miller County and to andiron' the city of Texarkana, Arkansas. The intrastate authority was under the provisions of Ark. Stat. Ann„ § 73-1762 (Repl. 1957) which provides : [A] certificate shall be issued _if it risj found that the applicant is fit, willing and able properly to perform the service . pyoposed ... and that the . service . „ . is-or will be required by present or future public convenience and necessity ; otherwise the application shall be denied . ; and the burden of proof shall be upon the applicant ..." Several certificated common carriers of the type goods included in appellant.'s application filed protests asserting that the proposed service is not required by the present or future public convenience and necessity, and a full hearing was had before the Commerce Commission resulting . in the denial of . the petition: Upon appeal from the judgment Of the , circuit court affirming the order of the Commission, the appellant relies on the following points for reVersal:
932 TORRANS V. AnK. COMMERCE COMM'N [246 'Circuit Court erred in not trying the case de novo, according to Sec. 73-133, Ark. Stats., Mo. Pac. T. Co. v. Inter City T. Co., 216 Ark. 95, 224 S.W. 2d 372, and in not deciding whether the determinations of the Commission were contrary to the weight of the evidence, but found that.the order of the Commission is supported by substantial evidence, p. 1.2 of R. Vol. 2, and solely on this basis erroneously affirmed all the finding's of the commission. The trial court erred in sustaining the Arkan-sas Commerce Commission's denial of the authority of Torran.s for household goods applied for. Tbe trial court erred in sustaining the Arkan-sas Commerce Commission's denial of authority to transport additional commodities. The trial court erred in sustaining the Arkan-sas Commerce Commission's denial of extension of authority from Miller County to include additional commodities in Southwest Arkansas. . The trial court erred in sustaining the Arkan-sas Commerce Commission's denial of Torrans' application in its entirety. The trial court erred in sustaining the Commission's finding that 'the . present certified carriers have equipment which stands idle a good part of the time because of lack of business.' Fisher v. Branscum, 243 Ark. 516. The trial court erred in sustaining the Arkan-sas Commerce Commission's finding that 'there appears nothing in the record to show that. sufficient business is generated in such adjacent counties to justify additional certified carriers.' "
ARK.] TOURANS V. ARK. COMMERCE Comm'x 938 Under the appellant's first point, he argues that the circuit court erred in applying the "substantial evidence" rule rather than the "weight of the evidence" rule in reaching its decision. The trial court's judgment does recite that the order of the Commission "is supported by substantial evidence, and should be, and the same hereby is affirmed." Arkansas Statutes Annotated § 73-133 (Repl. 1957) sets out the procedure to be followed by the circuit court in reviewing an order of the Commerce Commission. This statute, insofar as it is applicable 'here, is as follows: "Within thirty days after the entry on the record of the [Arkansas Commerce Commission] ... of any order made by it, any party aggrieved may file a written motion ... praying for appeal from such order to the circuit court ... The said circuit court shall thereupon review said order upon the record presented ... and enter its findings and order thereon ..." Appeals to this court from circuit court judgments affirming or reversing orders of the Commerce Commission are governed by Ark. Stat. Ann. § 73-134 (Repl. 1.957), as follows: . . [T]he appeal to the Supreme Court shall be governed by the procedure, and reviewed in the manner . applicable to other appeals from such circuit court, except that any finding of fact by the circuit court shall not be binding on the Supreme Court, but the Supreme Court may and shall review all the evidence and make such findings of fact and law as it may deem just, proper and equitable." In the case of Wisinger v. Stewart, 215 Ark. 827, 223 S.W. 2d 604, this court said: "A point not to be lost sight of here is that tie novo review by the courts, including this Court,
934 TORRANS V. ARK. COMMERCE C0M1VI'N [246 must not proceed as though the Public Service Commission did not exist and had never held a hearing. - A hearing has been held, and the Commission which held the hearing has had the advantage of seeing and -hearing the parties and witnesses face to face, whereas the Circuit Court and this Court review the evidence from the record only. 'Where a matter is heard and decided by an administrative body such as the Public Service Commission, an order made .by it shouldhe upheld by the court on appeal unless it is against the weight of the evidence.' Camden Transit Co. v. Owen, 209 Ark. 861, 192 S.W. 2d 757, 758." Apparently the trial court did err in applying the subStantial evidence rule in the case at bar, but such error is not prejudicial to the appellant since -we also review the record de novo on appeal from the circuit, court and . must affirm the order of the Commissionif the order is not against the preponderance of the evidence. In Mo. Pac. T. Co. v. Inter • Ci:01 T. Co., --216 Ark. 95„224 S.W. 2d 372, we said: • ``... Mlle de novo review prescribed by the ::governing statute, Ark. Stats. (1947) §§ 73-133 and 73-134, is similar to that employed by this Court in Chancery appeals. Accordingly it was concluded that ' This Court's' proper task, 'in the light of this state of the law, is to inquire whether the determination of the Commission was contrary to the weight of the evidenee.' ...The testimony presented by appellant in support of hTh' application is suramarized briefly as follows : Appellant, Robert 'Torrans, testified that 'there is an obvious peed for . movers in southwest Arkansas based upon Moves . ' that he has been unable to handle. Mr. 0. L. Werst, an- employee .of .the appellant, testified that he lived at Hattori in Polk County, Arkansas ;
ARK.] TORBANS V. ARK. CON MERCE COMM 'N 935 that he Owns a tractor of his own and did use a rented trailer belonging to Mayflower Transit Co. prior to his transfer over to working for the appellant in 1960. He testified that if the appellant was awarded the intra-state permit, that he, Mr. 'Werst, would be in a position to service the area in and around Hatton. He testified that be received telephone calls quite frequently from residents in the community, but that be does not remember specifically who any of the individuals were or the time at which the calls were made. He did recall a Mr. C. H. Johnson, who lived at Cove, Arkansas, and that he moved him from Cove to Mena, and that since that time, within the last year, he bad moved the same man interstate from Mena to Ardmore, Oklahoma. On cross-examination this witness testified that he had only handled the one move intrastate and that be was contacted by one other individual, and suggested that that individual call the appellant in regard to a move from Wicks to Ashdow11. Mr. Hollis Luck of Hope, Arkansas, testified that he was in the used furniture business and previously was in the floorsweep manufacturing business; that be used his own truCk in picking up used furniture at the various places he purchased it, and that he thinks he would go out and buy more furniture if he could get it moved. He testified that it was necessary for the people in the vicinity of Hope to borrow a cattle or log truck to move their furniture, and that he is unable to get anything shipped out of Hope because the original certified mOver who was at Hope bad died and his wife had sold out to somebody else and that. the new owners do not want to move household goods. On cross-examination this witness testified that be desires intrastate service for the appellant in order to bring merchandise into Hope; that be is purchasing used- furniture locally at the present time, and that an intrastate carrier based in Texarkana would be of very little benefit to bim, and that the reason common carriers do not like to handle his merchandise' is that it doesn't weigh enough. .This witness' testi-
936 TORRANS v. ARK. COMMERCE COMM'N [246 fied that he was under the impression that if the application should be granted, the appellant would dispatch a truck to Texarkana to pick up a load of furniture, and that he does not know if other common carriers would do the same thing or not; that he has not investigated what intrastate service is available at the present time. • Mr. Walker Strasner testified that he was in the business of farming and cattle raising, and that he does some trading in real estate at Nathan, Arkansas, north of Nashville. This witness testified that there was new industry moving into the entire area, that he sees lots of moving going on in the community, and that the moving he has observed has been in cattle trucks and open-top trucks. On cross-examination this witness testified that the moving he had observed had been in the vicinity of •Murf reesboro, Nashville, Nathan and Dierks, and that he had never bad an occasion, to make an investigation as to what type of moving was available from Prescott, Hope or any other towns in that area. Mr. Ed Smith testified that he lives at DeQueen, Arkansas, and is a salesman for a realty company in that nrea. He testified tbat he does not know of any common carriers situated in that area, and that he has bad _occasion to use the service of a household mover; that he does not remember the date but that be moved from •one place to another in the city of DeQueen. He testified that he moved in an open truck and that there was no household mover in town. He testified that be knew of people moving from other parts of Arkansas to De-Queen and from DeQueen to other parts in Arkansas, but that be does not know how they moved. On cross-examination this witness testified that be moved f rom one place in DeQueen to another address some four years ago and that he did not have need for a household _goods mover transportation service. Mr. Luther Alford testified that he lives in Mur-freesboro, Arkansas ; that be has lived in that community
ARK.] TOBRANS V. ARK. COMMERCE COMM 'N 937 all of his life, is 73 years of age, and has farmed and has served eight years as deputy sheriff. He testified that he had observed people moving household goods - into and out of Murfreesboro and that the most of them had moved on open cattle trucks. This witness testified that . be remembers seeing one van type moving truck from Hope, alid that he•thinks that this move was • from Murfreesboro to Hope. Mr. Smith testified that he knew of no specific instance of anyone having difficulty in moving to and from Murfreesboro, but that he did know of one particular case where %some people in Clarendon called a cattle truck to come from Murfreesboro to move them. Mr. Smith testified that the majority of the people- he had observed moved in cattle trucks and that he cannot-think of anyone in particular he has heard complain about lack of moving facilities. On cross-examination this witness testified that the last move he had made was in. 1932, when he moved from . one part of Murfreesboro to another. He testified that he does not have any need for a moving service, but that he does not know when he might. Mr. M. A. George testified that he lives in Cove, Arkansas, and is a real estate broker; that some .of the sales that he has made have resulted in people .moving in and out of the community. He says that most moves are made by pickup trucks or cattle trucks, and that apparently no other local service is available to them. _This- Witness testified that he would be glad to refer his clients:to the appellant if the appellant were able to render local service and that he would like to be . able to refer his clients who inquire about movers to someone close by..On cross-examination this witness testified that he had no personal need for the service of a household goods mover. He- was-unable to recall any specific clients, who had need of a household mover from Cove, but that everyone would be more or less familiar with the fact that there was no one available. This witness testified that be
938 TONRANS V. ABE. COMMERCE COMM'N 1246 had no idea of the type service the appellant proposed .to render out of Cove, Arkansas, and that he has made no investigation as to existing facilities which might he available in and around Cove. This witness testified that he could think Of no reason why existing carriers Could not have performed the services needed in the community. He testified that he had contacted no mover of household goods and has bad no occasion to do so. He says that he has heard complaints about the lack of moving facilities but cannot Temember who made them cw when. He testified that he had made no effort to find moving service in Texarkana or the nearby towns. Mr. A. J. Robinson thstified that he lives at -Wicks, Arkansas; that he owns a little motel and drive-in and that he is a real estate broker. This witness testified that the community was growing; that he had seen peoPle moving in pickups and cattle trucks, but . that he does not know whether the trucks belong to the people doing the 'Moving or to someone else. This witness testified thnt he bas no need for a furniture moving service personally. Mr. George Turner testified that he lived in Lewis-ville that the community is growing, that there is no CoMmon carrier of houSehold goods stationed in Lewis-ville, and that the people moved mostly by pickup truck. On cross-examination Mr. Turner testified that it is approximately 30 miles from Lewisville to Texarkana; that until very recently he was office manager for Cherokee Carpet Mills; that he has no need for moving service himself and that his only reason for appearing as a witness was to testify that Lewisville has grown in population in the last five years, and that new industries are coining into the area. Mr. Jim C. Reece and Mr. Odie Jackson, who live at Nashville, testified substantially the same as the other witnesses to having seen people moving locally on bob-trucks and most anything they could get. Mr. Jackson
A RTC] TORRANS V. ARK. COMMERCE COMM 'N 939 testified that be bad seen a few moving vans come into Nashville, but does not know where they:were from or anything about them.. He testified there was no common carrier of household goods domiciled in Nashville, and that he suspects Texarkana •would be; the •closest place to obtain the services of a regular moving van for the moving of household goods. • . Mr. W. A. :Jones testified that be liVed. in Texark-ana and is in the real estate business. He testified that the poPulation in and around AshdoWn is increasing and testified as to the new industry that is Coming into Southwest Arkansas. On cross-examination this witness testified that AshdoWn is approximately 20 Miles-from Texarkana, and that he 'himself has no transportation problems of any kind. The twelve protestants offered teStimony'to-the effect that they were actively engaged' in the • rendition of ihe same service§ included in appellant's aPPlidation. They testified that they were ready, able and willing to accept additional business and that there were many time§ when some of their 'eqiiiiinient 'WaS • Standing idle. They teStified 'that they solicited bUSiness - bY • adVertise--thetas in the yellow pages of telephone directorieS'in all parts Of the state,:including 'southwest -Arkansa.S . ; that they accepted long diStance collect caBs s from prospective customers and bad never received a request for serv-iee they were unable or unwilling to perform:• .. The finding of the Commission, in denying the appellant's application, is set out in part as .follows "The COmmission has -giiTen • careful consideration to • all of the facts and the- eVidenee •- and, as stated above, finds that the . APplicant haS not met the burden of 'proof impoSed upon him by Section 9 (a) of Act 397 Of the ActS • Of Arkansas;- 1955: Accordingly, it follows that no useful purpose would be served by granting Applicant authority in any adjacent county, since there appears nothing in the
940 TORRANS V. ARK. COMMERCE COMM 'N [246 record to show that sufficient business is generated in such adjacent counties to justify additional certificated carriers. From the foregoing, the Commission is of the opinion that the application must be denied in its entirety." In the rather recent case of Arkansas Best Freight System v. Missouri Pacific Truck Lines, 240 Ark. 664, 401 S.W. 2d 571, we said: "The rule is set out in Missouri Pacific Railroad Company, Thompson, Trustee v. Williams, 201 Ark. 895, 148 S.W. 2d 644. There quoting from A.L.R., we said: The general rule is that a certificate may not be granted where there is existing • ervice in operation over the route applied for, unless the . service is inadequate, Or additional service would benefit the general public, or unless the existing carrier has been given an opportunity to furnish such additional service as may be required.' * * * Of course, a few individuals or companies might receive some benefit trom the granting of a certificate ... but the benefit that might accrue in these isolated cases is not what is meant by the term 'public convenience and necessity.' In the still more recent case of Fisher v. Branscum, 243 Ark. 516, 420 S.W. 2d 882, we said: "In weighing the evidence, we do not substitute our judgment for that of the Commerce Commission. We will accord due deference to the Commission's findings because of its peculiar competence to pass upon the fact questions involved and because of its advantage in seeing and bearing the witnesses during the full hearing." From our examination of the entire record in this case, we are unable to say that the findings of the Com-
ATIK.1 941 mission and its order entered thereon, were against the weight of the evidence. The judgment of the trial court is affirmed. Affirmed.
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