#### ENGLISH et al. v. RAILROAD COMMISSION OF TEXAS et al.

No. 9781.

Court of Civil Appeals of Texas. Austin.

March 30, 1949.

Rehearing Denied April 13, 1949.

John H. Benckenstein, of Beaumont, and Baker, Vaughan & Black, of Port Arthur, for appellant.

Price Daniel, Atty. Gen., Chas. D. Mathews, Willis Gresham, and Charles E. Cren-shaw, Asst. Attys. Gen., and Smith, Rotsch & Steakley, of Austin, for appellees.

HUGHES, Justice.

The trial court, acting without a jury, sustained an order of the Railroad Commission granting appellee C. V. Burris a certificate authorizing him to transport household goods and used office furniture and equipment from all points in Jefferson County, except the City of Beaumont, to all points in Texas, and vice versa.

Issuance of this certificate was protested by J. H. English, doing business as English Transfer and Storage Company, O. I. Baker and S. G. Carruth, doing business as Powell Transfer and Storage Company, and Texas Storage Company, a corporation, all of whom are appellants.

Reversal is sought on the ground that the evidence was insufficient to show that the service being rendered by existing carriers was inadequate and that substantial evidence did not exist to justify the conclusion of the Commission and the trial court that public necessity and convenience would be promoted by granting the Burris application.

The certificate in suit was granted under Sec. 5a(d), Art. 911b, and Sec.6(d), Art. 911b, Vernon’s Ann.Civ.St.; Sec. 5a(d) providing, in part: “ * * * The Commission shall have no authority to grant any application for a certificate of convenience and necessity authorizing operation as a ‘Specialized Motor Carrier’ or any *482other common carrier unless it is established by substantial evidence (1) that the services and facilities of the existing carriers serving the territory or any part thereof are inadequate; (2) that there exists a public necessity for such service, and (3) the public convenience will be promoted by granting said application.”

The principal towns or communities to be served by Burris are Port Arthur, Neder-land and Port Neches, which are located in one of Texas’ most important industrial regions and which have recently grown and are continuing to grow very rapidly.

There are several transportation companies which operate in and out of Jefferson County rendering the same kind of service which Burris desires to render. None of these companies has, however, any facilities regularly stationed at Nederland or Port Neches. It is proposed by Burris to maintain facilities not only at Port Arthur but in Nederland and Port Neches. There seems to be a need for more adequate service of this type in these communities.

We will summarize, very briefly, the evidence of some of the witnesses for Burris.

J. B. Fritchman, personnel director of B. F. Goodrich Chemical Company and a director of the Chamber of Commerce in Port Neches, testified to inquiries which had been made of him by persons who wanted their household goods moved, and after referring them to concerns in Port Arthur they came back and had to call on the company’s traffic manager for assistance.

A. D. Bedford, Port Arthur, salesman for a Beaumont refinery: That he had been trying unsuccessfully to get some transportation company in Jefferson County to move his household goods from Borger to Port Arthur. He called Beaumont Transfer & Storage, Covington, Powell, and his wife called Sunshine. He did not call English because previous dealings had been unsatisfactory. .

C. J. Adams, Port Neches, auto supply and service station operator: Population of Neches is about 5,000. If you want to move from Port Neches you have to call some other' town. Has assisted others in calling moving vans and has had frequent requests for aid in moving from point to point within'the county.

A.’ H. Rienstra, Nederland, formerly in dry goods and building business: Population of greater Nederland is about 8,000. There are no carriers located in Nederland who can haul household goods from Neder-land to Port Arthur or to any other point in Texas.

P. W. Earl, Port Neches, former county commissioner and Texas Company employee : There are no household goods carriers located in Port Neches.

Appellants’ witnesses were all engaged in the business of moving household goods in Jefferson County and generally their testimony was that business was falling off, men and equipment were idle, that they could take care of the moving business in and around Nederland and Port Neches and had been doing so, but that if additional equipment or facilities were required they were able and willing to furnish them. Some of these witnesses testified that it would be unprofitable to locate trucks and equipment in Port Neches or Nederland.

It is the lack of equipment located in these towns that causes the service rendered by existing carriers to be inadequate. Appellants are able and willing to improve their service when the business justifies it, but when this will be no one knows. Ap-pellee Burris is willing to render the service now.

In our opinion, the requirements of the statute have been met, the certificate issued to Burris is supported by substantial evidence and the judgment of the trial court should be affirmed.

Affirmed.

ARCHER, C. J., not sitting.