State Ex Rel. Utilities Commission & First Courier Corp. v. American Courier Corp.

174 S.E.2d 808 (1970)

STATE of North Carolina, ex rel. UTILITIES COMMISSION and First Courier Corporation
v.
AMERICAN COURIER CORPORATION.

No. 7010UC65.

Court of Appeals of North Carolina.

June 24, 1970. Certiorari Denied August 28, 1970.

Edward B. Hipp and Larry G. Ford, Raleigh, for the Utilities Commission.

Bailey, Dixon, Wooten & McDonald, by J. Ruffin Bailey and Ralph McDonald, Raleigh, for applicant-appellee.

Allen, Steed & Pullen, by Thomas W. Steed, Jr., Raleigh, for protestant-appellant.

HEDRICK, Judge.

The protestants in this action contend that the Utilities Commission was in error in granting the permit to the applicant, First Courier Corporation, to operate as a contract carrier in the State of North Carolina in that the order was erroneous as a matter of law and was unsupported by competent material and substantial evidence.

On appeal to the Court of Appeals of North Carolina, findings of fact of the Utilities Commission are conclusive and binding if they are supported by competent, material and substantial evidence in view of the entire record. State ex rel. Utilities Comm. v. Petroleum Transportation, Inc., 2 N.C.App. 566, 163 S.E.2d 526 (1968); State ex rel. Utilities Commission v. Champion Papers, Inc., 259 N.C. 449, 130 S.E.2d 890 (1963); State ex rel. Utilities Commission v. Towing Corp., 251 N.C. 105, 110 S.E.2d 886 (1959); State ex rel. Utilities Commission v. R. R., 238 N.C. 701, 78 S.E.2d 780 (1953); State ex rel. Utilities Commission v. Radio Service, Inc., 272 N.C. 591, 158 S.E.2d 855 (1968).

G.S. § 62-262(i) sets forth the criteria to be used by the Utilities Commission in determining whether a permit is to be granted authorizing an applicant to operate as a contract carrier. This section states that the Commission shall give due consideration to:

"(1) Whether the proposed operations conform with the definition in this chapter of a contract carrier,

"(2) Whether the proposed operations will unreasonably impair the efficient public service of carriers operating under certificates, or rail carriers,

"(3) Whether the proposed service will unreasonably impair the use of the highways by the general public,

"(4) Whether the applicant is fit, willing and able to properly perform the service proposed as a contract carrier,

"(5) Whether the proposed operations will be consistent with the public interest and the policy declared in this chapter; and

"(6) Other matters tending to qualify or disqualify the applicant for a permit."

G.S. § 62-3(8) defines a contract carrier as follows:

"``Contract carrier by motor vehicle' means any person which, under an individual contract or agreement with another person and with such additional persons as may be approved by the Utilities Commission, engages in the transportation other than the transportation referred to in subdivision (7) of this section, by motor vehicle of persons or property in intrastate commerce for compensation, except as exempted in G.S. 62-260."

The Utilities Commission in the present case, in Finding of Fact Number 2, specifically found that the proposed operations of the applicant, First Courier Corporation, met the statutory requirements of G.S. § 62-262(i). The findings are supported by competent, material and substantial evidence and we, as the reviewing court, are bound by them.

The protestant contends that the permit should not have been issued to the applicant because the applicant does not meet the requirements of N.C.U.C. Rule R2-15 (b).

By the provisions of G.S. § 62-49, the Utilities Commission was authorized and directed to publish rules and regulations.

Rule R2-10(b) provides:

"Contract carrier authority for the transportation of passengers or property will not be granted unless the proposed service conforms to the definition of a contract carrier as defined in G.S. 62-3(8) and applicant meets the burden of proof required under the provisions of G.S. 62-262(i) and Rule R2-15(b)."

Rule R2-15(b) provides:

"If the application is for a permit to operate as a contract carrier, proof of a public demand and need for the service is not required; however, proof is required that one or more shippers or passengers have a need for a specific type of service not otherwise available by existing means of transportation, and have entered into and filed with the Commission, prior to the hearing or at the time of the hearing, a written contract with the applicant for said service, which contract shall provide for rates not less than those charged by common carriers for similar service."

The protestant, American Courier, contends that the evidence clearly indicates that its services were readily available to serve the precise needs of the witnesses for the applicant and that in some instances they were doing so. The evidence does not so show. The testimony of the witness, Raymond Griffin, Manager of Data Processing of Southern National Bank in Lumberton, North Carolina, was that his company has a need for transportation of interbank correspondence, audit and accounting media, including cash letters to their offices as far north as Henderson, east to Edenton, south to Tabor City and west to Mt. Gilead. He testified that at the present time they are using the U. S. Mail, bus express, their private cars and First Union National Bank's private courier service which has been provided to them free of charge. Mr. Griffin testified that no other transportation services were available to them in Lumberton and that no common carrier service is available to meet their specific needs. When questioned in regard to service provided or offered by the protestant, Mr. Griffin testified that they had had no contact with American Courier and that they did not receive any proposal or offer of service to their corporation until 12 April 1969 when American Courier submitted a proposal to them to provide service for $44,000.00, a rate twice what they now are paying. The letter and proposal from the protestant was received approximately five months subsequent to the filing of the application by First Courier Corporation for a permit to operate as a contract carrier.

Bob Harrington, of Cameron-Brown Company, a mortgage banking institution and a wholly-owned subsidiary of First Union National Bank, Corporation, Inc., testified that he was familiar with the services offered by the protestant but that he did not learn of the service provided by the protestant until after he began negotiations with First Courier Corporation. He testified that there are several ways in which American Courier does not provide service to meet the specific requirements of Cameron-Brown, and that his company has several offices which are not on the protestant's service routes. Mr. Harrington testified that American Courier offered to provide his company with service after he had signed a contract with First Courier and that they offered to put on the necessary men and equipment if Cameron-Brown would pay the additional cost and if they would sign a sufficient contract to guarantee reimbursement of the costs of the additional runs.

From this evidence, it is clear that the applicant has met the requirements of N.C. U.C. Rule R2-15(b).

The protestant, American Courier Corporation, bases much of its opposition to the granting of the permit to the applicant on the ground that if the permit were granted it would then have competition in the area of transportation. Protestant contends that such competition should not be allowed since the granting of the proposed application would adversely affect the business of American Courier. We do not feel that this is a sufficiently compelling reason to prohibit the entrance of other contract carriers into the field of transporting bank documents and other commodities. In State ex rel. North Carolina Utilities Commission v. Coach Co., 261 N.C. 384, 134 S.E.2d 689 (1964), our Supreme Court, speaking through Moore, J., said: "There is no public policy condemning competition as such in the field of public utilities; the public policy only condemns unfair or destructive competition." This Court, in the recent case of State ex rel. Utilities Comm. v. Petroleum Carriers, 7 N.C.App. 408, 173 S.E.2d 25 (1970), citing the above passage from the Coach Co. case, stated: "The possibility that a transfer of authority to a more competitive carrier will adversely affect existing carriers does not make such a transfer contrary to ``the public interest' as a matter of law." So, too, in the present case, the Utilities Commission's action in authorizing the granting of the permit to the applicant does not denominate the competition generated by that action unfair or against the "public interest". The testimony contained in the voluminous record indicates that the field of commodity transportation is still open and has not been closed out by the granting of this permit.

For the reasons given in the above opinion, the order of the North Carolina Utilities Commission granting First Courier Corporation's application for a permit authorizing it to transport bank commodities is

Affirmed.

MALLARD, C. J., and PARKER, J., concur.