Missouri Pacific Transportation Co. v. Gray

The question is, Did the court err in sustaining corporation commission's finding that L. N. Gray¹ should be granted a certificate of convenience and necessity authorizing him to operate a bus line between Fordyce and Little Rock?²

Gray's petition was filed April 18, 1940. He at that time was authorized to operate between El Dorado and Fordyce over highway 167. Highway seven (between El Dorado and Camden) and highway seventy-nine (between Camden and Thornton) were used by Missouri Pacific Transportation Company. On them are Norphlet, Smackover, Camden, Eagle Mills, and Bearden. Highways 167 and 79 join at Thornton. Between Thornton and El Dorado (by highway 167) are Hampton and Calion, the former having a population of 686, and the latter 712, according to the 1940 federal census.

It will be observed that the only route used by Gray and the transportation company prior to action of the commission in extending Gray's rights November 21, 1940, was that part of highway 167 between Thornton and Fordyce, as to which Gray was not allowed to accept passengers.

The commission's finding was that points between Little Rock and Fordyce did not require additional service; nor was there a requirement for greater facilities between Fordyce and Little Rock. The petitioner, however, was authorized ". . . to serve the towns of Calion, Hampton, and Thornton, to Little Rock, and from Little Rock is permitted to serve Thornton, Hampton, and Calion to El Dorado and intermediate points between Fordyce and El Dorado, provided service between Thornton and Fordyce must be from Little Rock and not from Fordyce. . . . [He] is not permitted to render service from Fordyce to Little Rock, nor from Little Rock to Fordyce, nor to or from intermediate points between Little Rock and Fordyce. . . ."

We think the commission correctly determined that the populated area on highway 167 south of Fordyce was entitled to better service, and that travelers taking passage on Gray's buses should not be required unnecessarily to spend time at Fordyce waiting for Little Rock connections; nor should passengers from points north of Fordyce en route to the area in question who take passage on appellant's buses be unreasonably inconvenienced.

It was shown, however, that Gray operated but one conveyance: a 1939-model International chassis with "home-made" body. With this he made two daily round trips between El Dorado and Fordyce.

The commission's finding that appellant's service from Little Rock to El Dorado was satisfactory is not questioned. In addition to the bus service maintained by Gray and by appellant, train schedules afforded convenient means of travel to and from some of the points to which reference has been made.

Buses operating on the three highways did not connect at Fordyce. Appellant insists it is anxious to make adjustments in order to accommodate passengers originating on Gray's route, but thinks there was want of cooperation. It is not uncommon for competitors to justify their own conduct and to believe that want of reciprocity is chargeable to the adverse party. Whatever may be true here in this respect, a preponderance of testimony shows there was ample seating room on the several buses and they were operated with sufficient frequency to meet standards. The thing wanting was connections. This deficiency could be corrected by the commission. Pope's Digest, 2026. The case is similar to Missouri Pacific v. Williams, 201 Ark. 895, 148 S.W.2d 644, decided February 10, 1941. At the time the case at bar was before the commission it did not have benefit of the Williams case.

Appellant's argument that the certificate issued to Gray creates competition is not controlling. The paramount consideration is public convenience and necessity. A service corporation, or individuals operating in a particular field in response to authority to act as common carrier, may be required to do many things they or it would prefer to avoid. On the other hand, public convenience is best served by operators who are financially responsible, and who because of such responsibility are able to utilize modern equipment in an efficient manner.

Undisputed evidence is that appellant has never profited by reason of the Little Rock-to-El Dorado service. But, as we have said, this is not the criterion. Rather, it is a component the commission must consider in ascertaining what the public is entitled to in a particular case.

Since readjustment of schedules will bring relief south of Fordyce, and this may be accomplished without infringing on a route appellant has been authorized to serve, it was error to affirm the commission's order.

The judgment is reversed. The cause is remanded to circuit court with directions to cancel the commission's order of November 21, 1940.

If because of changed conditions and the inability of appellant to render sufficient service over the highways covered by its certificate additional facilities are required, the commission has continuing authority to hear evidence and determine the question.

Mr. Justice Carter disqualified and did not participate in the consideration or determination of this case.

¹ Gray was doing business as Eagle Transportation Company. For details regarding transportation transactions see case numbered 6933 — H. M. Gregory et al. v. Willis v. Lewis et al., post p. ___,167 S.W.2d 499. The opinion is concurrent with this.

² The certificate held by Gray when petition for extension was filed called for "closed doors" between Fordyce and Thornton.