Keith v. Palmer

235 So. 2d 454, 84 P.U.R.3d 45, 1970 Miss. LEXIS 1449
CourtMississippi Supreme Court
DecidedMay 18, 1970
DocketNo. 45818
StatusPublished
Cited by2 cases

This text of 235 So. 2d 454 (Keith v. Palmer) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Keith v. Palmer, 235 So. 2d 454, 84 P.U.R.3d 45, 1970 Miss. LEXIS 1449 (Mich. 1970).

Opinion

BRADY, Justice:

This is an appeal from a final decree of the Chancery Court of the First Chancery Court District of Hinds County, Mississippi, wherein the chancellor affirmed an order of the Public Service Commission granting a certificate of convenience and necessity to the appellees, John N. Palmer and Mrs. Vermae Rowell, Partners d/b/a AAA Answer Phone and Doctors Exchange of Hattiesburg. South Central Bell Telephone intervened in the cause. Hereinafter in this opinion the appellant will be referred to as Monroe and appellees as AAA, South Central, and Commission. From the above decision this appeal is taken.

AAA filed its application for a certificate to establish, maintain and operate a domestic public land mobile and portable radio service which will be engaged in the transmission of messages by radio as a public communications service for compensation or hire between a base radio transmission and receiving station to mobile and portable units and from such mobile and portable units to said base station within a thirty-five mile radius of the city of Hattiesburg, Forrest County, Mississippi. The Commission had previously granted a certificate to Monroe to render such service within a sixty mile radius of Hattiesburg. AAA in its application stated that Monroe rendered a similar service and Monroe protested the granting of such certificate on the basis that it was rendering the same services and that to grant such a certificate to AAA as a competitor would result in waste, duplication and inefficiency and would jeopardize a large investment made by Monroe. South Central entered and filed its appearance and notice of participation but the limited or conditional protest of South Central was restricted in that its principal interest was to assure that the Commission recognize and not diminish or affect, in any order which it might issue, the existing, operating rights of [456]*456South Central within the area in question.

AAA is a general partnership composed of John N. Palmer, a certified public accountant of Jackson, Mississippi, and Mrs. Vermae Rowell, a resident of Hattiesburg. The partnership was created on September 1, 1968. Prior to the formation of the partnership, Mrs. Rowell had, for a number of years, been engaged in the telephone answering service business in Hattiesburg, that is, answering telephones for various subscribers for a monthly fee. In September Mrs. Rowell sold to Mr. Palmer a one-third interest in her telephone answering service and the partnership was created. The partnership continued to engage in the business of answering telephones for the general public in the Hat-tiesburg area and at the time of the hearing the appellee AAA had approximately one hundred and sixty answering service customers. A number of the answering service customers had requested Mrs. Rowell to secure authority from the Commission to handle mobile radio messages in connection with her handling of their telephone messages in the answering service. Physicians in particular desired this common handling of their telephone and radio messages. The telephone answering service is a twenty-four hour a day operation and AAA plans to offer its customers in Hattiesburg a type of selective calling apparatus in the mobile units with private selectors, which will enable the conversations to be private.

Prior to the filing of the application by AAA, Monroe did not engage in the telephone answering service business in Hat-tiesburg and its mobile radio operation was not a twenty-four hour operation. Immediately upon the filing of the instant application by AAA, Monroe began newspaper advertising and went into the answering service business in Hattiesburg, and at the time of the hearings was also maintaining a twenty-four hour service to its mobile radio customers. Monroe, however, does not handle “private selector” equipment only and, in fact, has only two customers using such private selector equipment, of which he has eleven units.

The case was heard by the Commission on December 3, 1968, and thereafter on December 17 the Commission issued its order granting to the appellee a certificate of public convenience and necessity to render mobile radio service within the area in question. The Commission in its opinion and order found that: (1) The appellant is ready, willing and able to construct, maintain and operate the facilities and other equipment necessary for the operation requested; (2) the area proposed to be serviced by the appellant is heavily populated and supports a variety of different businesses which have a need and have expressed a demand for the proposed service; (3) the appellant will operate in the Hattiesburg area on channel or channels to be assigned by the Federal Communications Commission, which channel or channels will be on a different frequency from Monroe; (4) the mobile units which the appellees’ subscribers will be using in the Hattiesburg area will be equipped with selective calling apparatus which enables a subscriber to carry on a private conversation; (5) the appellees will interconnect with the facilities at Hattiesburg, with facilities at Jackson, Meridian, Natchez and other cities in Mississippi, so that the customer in any one of the four locations may communicate with customers in any other locality by way of an arrangement with South Central; (6) appellees’ proposed services distinctly and substantially differ from that offered by the appellant; and (7) public convenience and necessity require and justify the proposed operation.

From this decision of the Commission an appeal was taken to the Chancery Court of the First Chancery Court District of Hinds County. The chancellor affirmed the decision of the Commission and from that decision this appeal is taken.

[457]*457The appellant assigns as error the following:

1. The Commission erred in not applying the existing facility rule and the order will result in a duplication and waste.

2. The Commission erred in finding that there was a public need for an additional radio telephone service and in granting a certificate of convenience and necessity for the same.

3. The Commission erred in authorizing South Central to furnish mobile radio telephone service in this area on no evidence.

4. The Commission erred in allowing two witnesses to testify on behalf of the parties over the objection of the appellant.

5. The Commission erred in finding (a) that all the applicants’ units would be of selective calling, (b) that the service of the applicants would be distinctly and substantially different, and (c) that the rates and charges should be approved and the findings are not supported by substantial evidence that are contrary to the manifest weight of the evidence.

6. The order violates the constitutional rights of the appellant and exceeds the statutory authority of the Commission.

This cause is somewhat unique, first, in that it is extremely well briefed by all parties, and second, it almost duplicates the recent case of Keith v. Bay Springs Telephone Company, 251 Miss. 106, 168 So.2d 728 (1964), factually and in the application of the controlling statutes.

The basic error assigned by the appellant is that the Commission erred in not applying the existing facility or the Tri-State Transit rule. Stated otherwise, if it had properly applied such rule, it could not have issued a certificate of convenience and necessity to the appellees. Furthermore, appellant urges that the Commission’s order will result in duplication and waste.

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Cite This Page — Counsel Stack

Bluebook (online)
235 So. 2d 454, 84 P.U.R.3d 45, 1970 Miss. LEXIS 1449, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keith-v-palmer-miss-1970.