State ex rel. Utilities Commission v. Edgecombe-Martin County Electric Membership Corp. , 5 N.C. App. 680 ( 1969 )

BeoCK, J.

Our decision in State of North Carolina, ex rel. Utilities Commission, and Virginia Electric and Power Company v. Woodstock Electric Membership Corporation and North Carolina Electric Membership Corporation, which was filed the same day as this, is dispositive of the primary questions raised in this appeal.

Appellant contends here, as in the Woodstock Electric case, that in assigning the controverted area to EDGECOMBE-MARTIN only for loads of less than 150 KW demand, and by assigning the same area to both EDGECOMBE-MARTIN and VEPCO for higher contract demands, subject to consumer choice “. . . the Commission (A) exceeded its statutory authority, (B) acted arbitrarily and capriciously, and (C) violated the constitutional rights of both EDGE-COMBE-MARTIN and the consuming public.”

In Woodstock Electric, supra, we ruled that the Commission did not exceed its statutory authority in making an assignment of an area jointly to two electric suppliers. And here, as in Woodstock Electric, supra, we hold that no constitutional rights are involved.

Without setting out the lengthy findings of fact by the Commission, we merely point out that the Commission made no findings of fact to justify setting a limit of 150 KW as the load level below which EDGECOMBE-MARTIN was individually assigned the area. In Woodstock Electric, supra, the load level for the individual assignment was set at 400KW, and we held there that the Commission had failed to find facts to justify the setting of that limit. The same questions are left unanswered in this case. For the failure of facts to justify the establishment of a limit of 150 KW below which EDGE-COMBE-MARTIN was individually assigned the area, the order appealed from is arbitrary and must be reversed.

Additionally, appellant assigns as error the admission of testimony bearing upon the preference of industrial consumers to be served by a private power company. The witnesses had each had experience in site locations for industry and the factors considered by industry in selecting a site. Each stated in effect that in his opinion, industries generally preferred electrical service by a private power company over electrical service by a municipality or an electric membership corporation. Appellant contends that the admission of this testimony violated the rule of evidence which prohibits the admission of hearsay testimony. Obviously, in the totality of their experience in this field, these witnesses had at times conversed and corresponded with officers- and agents of industrial concerns, and had read brochures and reports,, but they were not undertaking by their testimony to relate someone’s statements. Their testimony was an expression of their opinions which had been formed from the totality of their experience; the factors that influenced the formation of their respective opinions bear upon the weight to be given to the testimony, not its admissibility. These assignments of error are overruled.

For the reasons stated above, and the reasons more fully set out in the Woodstock Electric case, supra, the order of the Commission is reversed and this cause is remanded for such further proceedings as may be appropriate.

Reversed and Remanded.

Campbell and Mokkis, JJ., concur.