Morgan Drive Away, Inc. v. Railroad Commission

483 S.W.2d 320, 1972 Tex. App. LEXIS 2468
CourtCourt of Appeals of Texas
DecidedJuly 12, 1972
DocketNo. 11913
StatusPublished
Cited by4 cases

This text of 483 S.W.2d 320 (Morgan Drive Away, Inc. v. Railroad Commission) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Morgan Drive Away, Inc. v. Railroad Commission, 483 S.W.2d 320, 1972 Tex. App. LEXIS 2468 (Tex. Ct. App. 1972).

Opinion

O’QUINN, Justice.

Two protesting carriers have brought this appeal from judgment of the district court denying them relief from an order of the Railroad Commission which granted a certificate to Warfield Walker authorizing him to transport mobile homes and campers from all points within one hundred miles of Huntsville, Texas, to all points in [321]*321Texas, excepting shipments originating in Harris County.

Appellants are Morgan Drive Away, Inc., and National Trailer Convoy, Inc., holders of specialized motor carrier certificates which authorize them to operate throughout the state. Appellee Warfield Walker, doing business as Mobile Home Transports, proposed to station his equipment at Huntsville and operate with points of origin within a one hundred mile radius of Huntsville. The Railroad Commission’s order authorized Walker to operate in accordance with these proposals, except as to shipments originating in Harris County.

After hearing before the trial court without intervention of a jury, the court entered an order vacating a temporary restraining order previously issued by the court in May of 1971, and continued in force by agreement of the parties, which order enjoined Walker from operating pending final hearing. The trial court found the law and facts to be with appel-lees, who were defendants below, and found a public need for the proposed service and substantial evidence to sustain the order of the Railroad Commission.

Validity of the Railroad Commission’s order, issued April 23, 1971, is attacked by appellants under four points of error. We will overrule all points of error and affirm the judgment of the trial court.

At the outset appellants insist that there is no substantial evidence reasonably supporting the order of the Commission granting Walker’s application.

Appellants are the only two carriers in the state authorized to operate throughout Texas in the specialized field of handling transport of mobile homes and trailers, and under the Commission order attacked in this case Walker is their only competitor in the disputed area surrounding Huntsville for a radius of one hundred miles. Neither of the appellants owns its equipment, and both depend upon contractors who supply equipment and drivers in furnishing the services authorized to be performed.

National Trailer Convoy has fourteen terminals in Texas, all of which are operated by women who in some instances are the wives of drivers contracting with National to perform the transportation services. The company has no full-time employees in Texas except these agents. National was operating sixty leased vehicles in the state at the end of 1970 and at the time of the Commission’s order in April of 1971 the company operated ninety-three trucks in Texas. National advertises in trade journals and in telephone directories. Within the disputed territory around Huntsville, National advertises only in Bryan, Jacksonville, Houston, Lufkin and La Porte. A witness for National estimated that sixty percent of the company’s operation is devoted to movement of new trailers from manufacturers. Within one hundred miles of Huntsville the company operates only one terminal, located at Pasadena in Harris County.

Morgan Drive Away, the other statewide carrier of mobile homes, operates sixteen terminals in Texas and a district office in San Antonio from which agents are reached by telephone or TWX. Advertising in telephone directories is published in Bryan and Houston. About forty-five percent of the company’s traffic originates at manufacturing plants.

A witness who operates a mobile home sales business in Lufkin and another in Livingston testified that the existence of Sam Rayburn Reservoir, Lake Livingston, and other recreational areas accounted for “roughly a third of our economy.” The witness related increased sales of mobile homes and trailers to faculty and students in colleges and universities in the area to greater demand for movement of mobile homes and trailers. At least ten cities and towns with colleges or universities are located within the Huntsville territory in which Walker was authorized to operate.

[322]*322Witnesses for National and for Morgan Drive Away testified they were not aware of any increase in trailer movements in relation to the location of recreational areas and colleges in the disputed territory.

Three witnesses testified to complaints they had concerning services as rendered by both National and Morgan Drive Away. Appellants urge that such testimony lacks weight because all complaints registered relate to incidents occurring fifteen months or more prior to the Commission’s order approving Walker’s application.

We have not attempted here to set out in complete detail all the evidence, but we find in brief that appellants operate only two terminals within the disputed area; that the two terminals conveniently adjacent to the Huntsville circle in which Walker may operate have been reduced, in one instance, or abandoned, in the other; that appellants, together with Walker, are the only carriers authorized to service the designated area; that the forty-five counties surrounding Huntsville, in Walker County, have experienced a substantial increase in extensive recreational lakes and similar projects and include a large number of colleges and universities; and that public witnesses testifying clearly enumerated service complaints against the appellants.

We conclude that the order of the Commission is supported by substantial evidence and that in granting authority to Walker the Commission’s action was not arbitrary or capricious and was not taken in disregard of the facts.

Appellants contend that evidence of prior unlawful operations by Walker disqualify the applicant from receiving authority from the Commission. The protesting companies insist that “Walker failed to establish his fitness to conduct the operations for which a certificate was issued” in view of a history of illegal conduct beginning in 1969.

Witnesses in behalf of Walker testified that on occasions they had called on Walker for services, some being when National or Morgan Drive Away failed or was slow to perform. Walker admitted that he had been performing services the Commission authorized by its order.

Appellants rely on decisions involving the Interstate Commerce Commission and its policy not to “reward an applicant who has flouted the regulatory authority by extending its activities . . . into an area for which no authority had yet been obtained.” A B C Freight Forwarding Corporation v. United States, 125 F.Supp. 926 (S.D.N.Y.1954), affirmed 348 U.S. 967, 75 S.Ct. 531, 99 L.Ed. 753. Appellants argue that in view of the evidence, the cited decisions, and Article 911b, Vernon’s Anno.Tex.Civ.Sts., Walker failed to establish his fitness for the certificate.

Appellees argue that the proceedings in this case did not involve the nature or extent of Walker’s alleged illegal operations, such being a subject outside the jurisdiction of the Commission. Powers of arrest and prosecution, appellees point out, are expressly delegated to the Department of Public Safety under Article 1690b, Vernon’s Anno.Tex. Penal Code, originally section 16 of the Motor Carrier Act (Art. 911b), but codified in the Penal Code.

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483 S.W.2d 320, 1972 Tex. App. LEXIS 2468, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morgan-drive-away-inc-v-railroad-commission-texapp-1972.