On Rehearing
SIMPSON, Justice.Appellant urges in support of his application for rehearing that we erred in according the report of the attorney-examiner, who heard the testimony ore tenus, more weight than the finding of the Public Service Commission on the report; and that we violated the “substantial evidence rule”, § 82, Tit. 48, Code of Ala.1940, as applied in Railway Express Agency v. Alabama Public Service Commission, 265 Ala. 369, 91 So.2d 489; Alabama Public Service Commission v. Higginbotham, 256 Ala. 621, *756 So.2d 401; Alabama Public Service Commission v. Nunis, 252 Ala. 30, 39 So.2d 409; Alabama Public Service Commission v. Crow, 247 Ala. 120, 22 So.2d 721; North Alabama Motor Express v. Rookis, 244 Ala. 137, 12 So.2d 183. Upon a careful consideration of this argument, we have concluded that the rule as applied in those cases has not in any way been transgressed and that the application must be denied.
Appellant will concede that the attorney-examiner is in the better position to determine the truth and veracity of those testifying at the hearing conducted by him. Thus, he must be in the better position to determine the weight to be accorded the testimony taken at such a hearing.
We have not placed the burden of final decision upon the attorney-examiner; this, as it should, rests upon the members of the Commission. But when as here, the members of the Commission did not personally conduct the hearing and had not otherwise observed the demeanor of the witnesses, the evidence being conflicting, the findings of the attorney-examiner on factual issues should be accorded the usual presumptions. This is a basic theory upon which all appellate tribunals and decision-making bodies not observing the witnesses must operate, having only the benefit of the cold record before them.
For the reason hereinabove reiterated and announced the application for rehearing must be denied.
Opinion extended and application for rehearing overruled.
LIVINGSTON, C. J., and MERRILL and HARWOOD, JJ., concur.