Opinion
February 12, 1952. Rehearing Denied March 25, 1952.
Petition for review from the Florida Railroad Public Utilities Commission.
Shackleford, Farrior, Shannon Stallings, Tampa, for petitioners.
Lewis W. Petteway, Guyte P. McCord, Jr., and D. Fred McMullen, Tallahassee, for respondent.
A. Pickens Coles, Tampa, for Tamiami Trail Tours, Inc., Great Southern Trucking Co., Central Truck Lines, Inc., and Fogarty Bros. Transfer, Inc., intervenors.
It appears by the record in this cause that Benton Brothers Film Express, Inc., a Georgia corporation, with its principal place of business at 192 Luckie Street, Atlanta, Georgia, and with offices termini at 228 Myrtle Avenue, Jacksonville, Florida, and 1819 North Franklin Street, Tampa, Florida, by assignment is the holder of a Certificate of Public Convenience and Necessity issued by the Interstate Commerce Commission. Benton Brothers Film Express, Inc., under the aforesaid certificate, was and is authorized to conduct a limited transportation service in delivering motion picture films, theatre supplies and accessories, and newspapers and magazines between Atlanta, Georgia, and designed points and places situated in the State of Florida. It operates a one ton and a one and one-half ton truck with appropriate bodies especially constructed for the transportation of picture films, which are highly inflammable, and the trucks and bodies are constructed so as to be as near fire-proof as possible. Its employees are especially trained in the handling of these theatre supplies.
Since April 17, 1940, Benton Brothers Film Express, Inc., and its predecessors, under Certificate No. MC-66905 (Sub. No. 1) issued by the Interstate Commerce Commission, have been transporting in interstate commerce the above commodities to all theatres over irregular routes between Atlanta, Georgia, and designated points in the State of Florida. In December, 1947, an amended Certificate of Public Convenience and Necessity was issued by the Interstate Commerce Commission authorizing the transportation in interstate commerce of all the articles specified above to all theatres over irregular routes between Atlanta, Georgia, and designated points and places in the State of Florida. So, it now appears that Benton Brothers Film Express, Inc., or its predecessors, are authorized by a Certificate of Public Convenience and Necessity issued by the Interstate Commerce Commission, as amended, to transport in interstate commerce all such above described supplies used or sold to theatres between Atlanta, Georgia, and designated points in the State of Florida.
On February 9, 1948, pursuant to an adversary hearing in which considerable testimony was adduced, the Florida Railroad Public Utilities Commission issued to Benton Brothers Film Express, Inc., a limited Common Carrier Certificate of Public Convenience and Necessity No. L-126, which authorized the transportation in intrastate commerce in motor vehicles over designated route situated in the State of Florida moving picture films, film accessories, motion picture advertising matter, film parts, gears and other motion picture parts from, to and between points to theatres situated along the routes named in said order. As the writer studies the record, the aforesaid order denied Benton Brothers Film Express, Inc., authority to transport by private carrier theatre supplies such articles as candy, popcorn and other items usually sold at theatres, along with sanitary supplies.
On May 31, 1951, Benton Brothers Film Express, Inc., applied to the Florida Railroad Public Utilities Commission for an extension of Certificate No. L-126 and represented that it was rendering the several theatres of Florida a class of film service in which it has perfected a schedule necessary to accommodate the many theatres of Florida situated on its authorized route; it supplies a personalized service to the theatres by delivering films, returning those not used and said service usually is made during the night or early morning to avoid interrupting the operation of the theatre; the truck driver is supplied a key to the theatre and delivers the supplies to each theatre, which is a daily overnight service, inclusive of Saturdays and Sundays; the transportation costs therefor are paid each week by each theatre to the applicant on statements rendered; the daily overnight service takes care of emergencies in films, machinery, accessories and supplies; they are placed in the theatre after show hours in the absence of the theatre operator; that it carries insurance which protects exhibitors, not only from the loss or failure to deliver, but for any losses and damages which may occur, and in the rendition of said service to the theatres on the designated routes a public service is rendered the people of Florida; that the services rendered by the protestants are not only inadequate but incomplete.
The applicant points out that he has trucks on the service containing refrigerator units in which edible commodities above referred to can or may be transported from the warehouse of the wholesaler, jobber or other distribution center daily each week, when desired, to the several theatres along its route, and the edible commodities are delivered in a fresh and sanitary condition for consumption by the patrons of the theatre; that the services now rendered to the theatres by the protestants are wholly inadequate in that it fails to supply a Saturday and Sunday service each week; the commodities are not delivered to the theatres when desired or when ready for consumption; they are usually delivered at the termini of the protestants in the respective cities; the several commodities are never delivered within the theatre as the films are now being delivered by the applicant. The Great Southern Trucking Company, Central Truck Lines, the Fogarty Brothers Transfer Company, Inc., and Hunt Truck Lines, through counsel, protested before the Railroad Commission the application for an extension of Certificate No. L-126 previously issued to the applicant.
The Florida Railroad Public Utilities Commission heard testimony in support of the extension of Certificate No. L-126 consisting of some eleven witnesses covering some 230 odd pages of testimony, together with Exhibits. The protestants offered testimony of some seven witnesses and numerous Exhibits, which covered something under 100 pages. The Railroad Commission heard argument of counsel after the taking of testimony, and under date of June 1, 1951, by a vote of two to one, entered an order denying the application for an extension of Certificate of Public Convenience and Necessity No. L-126 as prayed for.
Benton Brothers Film Express, Inc., filed a petition for certiorari in this Court for the purpose of reviewing the order of denial entered by a vote of two to one by the members of the Railroad Commission and here contends that the order of denial so entered constitutes a departure from the essential requirements of the law and said order is without legal foundation in fact or law and should be quashed, set aside and held for naught.
It is settled law that this Court will not set aside the findings and conclusions of the Utility Commission merely because the reviewing Court might have reached a different conclusion on the evidence, where there is substantial competent evidence legally sufficient to justify the order challenged. Florida Motor Lines Corp. v. Douglass, 150 Fla. 1, 7 So.2d 843, and similar cases. The burden of establishing error, by law in the case at bar, is on the petitioner. It is the duty of the Commission to take into consideration the effect that the granting of a certificate will have upon other transportation facilities within the affected territory. Section 323.04 (3), F.S.A. It must be observed that an extension of a certificate previously issued by the Commission was the real controversy before the Commission, rather than the granting of a new certificate. On this issue two members concluded that the same should be denied and the other held that it should be granted.
Under the Certificate of Convenience and Necessity issued to Benton Brothers Film Express, Inc., by the Interstate Commerce Commission certain enumerated theatre supplies, inclusive of candy, popcorn and sanitary supplies, could be delivered out of the City of Atlanta, Georgia, to theatres situated on designated routes in the State of Florida between Jacksonville and Tallahassee and from DeFuniak Springs and Tallahassee; between Jacksonville and Miami; between Jacksonville and Orlando; between Tampa and Orlando; between Fort Myers and Tampa; between Orlando and Inverness; between Titusville and Orlando; between Haines City, Arcadia and Tampa; between St. Petersburg, Clearwater and Tarpon Springs, but Benton Brothers Film Express, Inc., under the order challenged here (entered by a two to one vote) cannot legally deliver to these theatres candies, popcorn and sanitary supplies from jobbers, wholesalers or distributors thereof now operating and doing business at points in the State of Florida.
It was the view of the Interstate Commerce Commission that the granting to the petitioner a Certificate of Convenience and Necessity, which authorized the delivery of candy, popcorn, sanitary supplies and other theatre accessories from Atlanta, Georgia, to the several theatres in the State of Florida, was necessary in order to promote the public interest. On the evidence adduced below one of the Commissioners was of the view that the public interest would best be served by extending Certificate No. L-126, as prayed for. Two of the Commissioners entertained a contrary view and entered the order here challenged. It is not contended here that the applicant sought or requested anything more than the excension of the certificate under which he had served Florida theatres in the delivery of motion picture films and similar accessories. It is difficult to conceive anything more conducive to the good health of the patrons of a theatre than wholesome and sanitary edibles which the petitioner desires to supply to the several theatres of Florida. The protestants here are not charged on this record with the delivery to the Florida theatres of deleterious edibles.
As the writer studies the record, the two Commissioners entering the order here challenged applied to the evidence adduced the law applicable to the issuance of an original Certificate of Public Convenience and Necessity to Benton Brothers Film Express, Inc., when, as a matter of record, Benton Brothers then and now hold Certificate No. L-126 and simply requested an extension or authority to deliver popcorn, candy and sanitary supplies to theatres to which it has been previously authorized under the aforesaid certificate to deliver motion picture films, film parts, gears and other motion picture parts in the form of a personalized service. If the request had been granted, the service would be similar to and would conform with that service authorized by the Interstate Commerce Commission.
The requested extension of the personalized service would not place on the highways of Florida additional motor vehicles; existing schedules and routes would not be altered; the theatres would obtain Saturday and Sunday services not previously enjoyed; the theatre supplies described in the Interstate Commerce Commission Certificate previously issued could be delivered from points in Florida along with business concerns situated in the State of Georgia; delivery of candy, popcorn and similar supplies could be made to theatres as films and film accessories are now being delivered under Certificate No. L-126. The applicant simply sought an extension of an existing service under Certificate No. L-126, rather than a new Certificate of Convenience and Necessity for a new service. See Tamiami Trail Tours, Inc., v. Railroad Commission, 120 Fla. 371, 163 So. 1.
The order of the Florida Railroad Public Utilities Commission entered below and challenged here on petition for certiorari is hereby quashed, with directions to enter an appropriate order of extension of Certificate No. L-126, as prayed for.
TERRELL, Acting C.J., MATHEWS, J., and LEWIS, Associate Justice, concur.