Opinion
No. 21912.
October 5, 1953.
APPEAL FROM THE CIRCUIT COURT, COLE COUNTY, SAM C. BLAIR, J.
Lowell L. Knipmeyer, Kansas City, for appellants.
Thomas A. Johnson, General Counsel, Frank J. Iuen, Asst. General Counsel, for Public Service Commission of Missouri.
This is an appeal from a judgment of the Circuit Court of Cole County affirming an order of the Public Service Commission granting Brooks Truck Lines, Inc., authority to render through service at lower through rates on existing authorized routes to all points it was then authorized to serve.
The applicant, Brooks Truck Lines, Inc., respondent here is a motor carrier of freight authorized to serve Kansas City and St. Louis and a group of cities and towns in the central portion of the state, centering around Marshall. As stated by its president, applicant has "authority to operate from Kansas City to Marshall and a number of points around Marshall, and authority to operate from St. Louis to Marshall and a number of points around Marshall." However, applicant has no authority to transport freight at through rates between Kansas City and St. Louis, but it could do so "at a combination of local rates."
Applicant's predecessor, Earl Brooks, had acquired his operating authority, in segments, over a period of years, some by providing convenience and necessity and others by purchase, the last being by purchase on May 20, 1949. These authorities are fully described in the Commission's Report and Order and it would serve no useful purpose to set them out here. Applicant, Brooks Truck Lines, Inc., offered testimony to the effect that all of the above authorities were transferred from Earl Brooks, doing business as Brooks Truck Lines, to it. Such transfer was authorized by an order of the Commission dated June 6, 1949.
The present application of Brooks Truck Lines, Inc., for authority to render through service at through rates to all points it was then authorized to serve was filed September 30, 1950. The application does not involve the question as to whether applicant is to be permitted to serve new points or to serve old points via new routes. The sole question is whether applicant may charge lower through rates instead of a combination of higher local rates to points and over routes which it now serves.
The application for such authority was made under Section 390.060 RSMo 1949, V.A.M.S. (formerly Sec. 5724(c), R.S.Mo. 1939) which authorizes the transfer of certificates of convenience and necessity and then provides: "In the event of such purchase, when there is a consolidation of one or more certificates of convenience and necessity and when through service will be beneficial to the public, such through service may be permitted." (Italics ours.)
At the hearing before the Commission eight carriers appeared to oppose the application. Of these carriers, two, Middlewest Freightways, Inc., and Byers Transportation Company, Inc., have appealed. In addition to applicant's president and manager, ten witnesses appeared and testified in support of the application. No testimony was offered by any of the protestants other than placing in evidence their operating authorities.
Applicant offered the following exhibits: (1) The seven orders of the Commission certifying applicant's operating authorities, each accompanied by a map showing the authority as to routes and points: (2) A map showing the consolidation of all the authorities in Exhibit 1: (3) A financial statement of applicant: (4) A list of equipment owned and operated by applicant: (5) A list of the terminals owned and operated by applicant, the equipment available at each terminal and the number of persons there employed: (6) Proposed schedules of applicant to be effective if the application were granted: (7) A survey of the amount of truck service being rendered to a representative group of cities and towns in Missouri: (8) A comparison of through rates against the higher combination of local rates which applicant was then required to charge: (9) A list of shipments between St. Louis and Kansas City showing the combination of local rates charged, the through rate and the saving to the shipper which would result if the application were granted.
Applicant serves some twenty-eight towns and cities in Central Missouri, of which nineteen are not served by any other carrier out of St. Louis. The evidence shows that there had been many requests for service between St. Louis and Kansas City and particularly for service with privilege of dropping off portions of the load at some of the Central Missouri towns en route.
The evidence likewise disclosed that granting the application would result in lower charges to shippers. The following example was given: A shipment from St. Louis to Sweet Springs of 10,000 pounds, 4th class rate would take an 1.t.1 (less than truck load) rate of 68 ¢ a hundred pounds. If the same shipper had another 10,000 pounds of the same commodity destined for Kansas City, the 1.t.1. through rate would be 80 ¢ a hundred pounds. The two shipments would cost $148. However, if the two shipments were consolidated and billed as a truck load to Kansas City with a "drop off" (or discharge) of 10,000 pounds at Sweet Springs the cost would be only $119, or a saving of $29 to the shipper.
There was testimony that the American Asphalt Roof Corporation of St. Louis and Kansas City would be benefited by applicant's proposed service. This Roofing Corporation ships from St. Louis to Kansas City and thence back to Marshall and other towns. Under the proposed service it could fill a truck for Kansas City and drop off portions of the load at Marshall, Dover and similar points on applicant's line, thus saving time and money. The evidence shows the same situation applied as to the C. J. Hussey Company (shipments of sheet copper, etc.), The A. M. Castle Company (steel distributors), The Union Wire Rope Company, and Western Sheet Metal Company.
All of the shipper witnesses testified that granting the application would result in less congestion at their docks. The evidence disclosed that there has been delay in shipments caused by confusion in the minds of shippers which arose from the fact that many shippers knew the applicant has terminals both in Kansas City and St. Louis. They were unable to understand why applicant could not serve those points at the same low rates as other carriers. They would send their cargo to applicant's dock at St. Louis or Kansas City and, on being advised of the rate situation, would either pay the higher (combination) rate or suffer the delay entailed in sending the cargo to another carrier.
There was no evidence that the granting of the application would injure the protestants.
The Commission found that: "A study of the authorities of the applicant shows that when joined together they form a through route over U.S. Highway 40 between St. Louis and Kansas City, although this applicant has no authority to render through service at through rates between these points. A similar situation was true in the Toedebusch and Orscheln cases. Likewise, the applicant has authority to render service from Kansas City and St. Louis to certain intermediate points between these two termini." It then concluded "that, under the evidence presented in this case, the public will be benefited by granting the application."
As a reviewing court, we may not substitute our own judgment on the evidence for that of the Commission, but we are authorized to decide whether such tribunal could have reasonably made its findings and reached its result upon consideration of all the evidence before it; and to set aside decisions clearly contrary to the overwhelming weight of the evidence. Seabaugh's Dependents v. Garver Lumber Mfg. Co., 355 Mo. 1153, 200 S.W.2d 55: State ex rel. Byers v. Public Service Commission, Mo.App., 246 S.W.2d 825.
Upon the whole record, it is clear that we would not be justified in disturbing the conclusion reached by the Commission. The two holdings referred to in the Commission's finding, Re Toedebusch Transfer, Inc., 1 Mo.P.S.C. Reports, N.S. 499 and Re Orscheln Bros. Truck Lines, Inc., 2 Mo.P.S.C. Reports, N.S. 612, are well considered cases. They involved situations identical to the one appearing in the case at bar, and in each instance the authority sought by the applicant was granted.
The finding of the Commission in the instant case also finds support in the cases of State ex rel. Anderson Motor Service Co. v. Public Service Commission, 234 Mo. App. 470, 134 S.W.2d 1069; Id., 348 Mo. 613, 154 S.W.2d 777, and State ex rel. Byers Transportation Co. Inc., v. Public Service Commission, Mo.App., 180 S.W.2d 259.
The judgment of the Circuit Court upholding the order of the Commission is correct and is affirmed.
All concur.