Barnes v. Louisville & N.R. Co.
| Decision Date | 30 April 1940 |
| Citation | 140 S.W.2d 1041,283 Ky. 261 |
| Parties | BARNES v. LOUISVILLE & N. R. CO. |
| Court | Kentucky Court of Appeals |
Rehearing Denied June 21, 1940.
Appeal from Circuit Court, Jefferson County, Common Pleas Branch First Division; J. J. Hancock, Judge.
Action by F. P. Barnes against the Louisville & Nashville Railroad Company to recover the amount overcharged for switching 1,400 cars of grain and grain products. From a judgment for defendant, plaintiff appeals.
Reversed.
James T. Robertson, of Louisville, for appellant.
Woodward Dawson & Hobson and H. T. Lively, all of Louisville, for appellee.
STANLEY Commissioner.
The appellant, F. P. Barnes, purchaser of the chose in action from the trustee in bankruptcy of Kentucky Feed Mills, Incorporated, sued the appellee, Louisville & Nashville Railroad Company, to recover $1,890 overcharged for switching 1,400 cars of grain and grain products. The shipments were over the defendant's lines from Louisville to points wholly within Kentucky. The period covered is from March 10, 1923, to August 2, 1933. It was alleged that the transportation was under written contracts and "subject to the legal and lawful rates named in the tariffs in effect on the dates the respective shipments were made as described in said written contracts." They are uniform bills of lading adopted by the Railroad Commission of Kentucky. It was further alleged that during the period "the legal and published contract switching rates chargeable" for the shipments "were and are $1.35 per car as published in said defendant's tariff then legally in effect," but the shipper was compelled to pay $2.70 a car "which made an illegal overcharge on said 1400 cars of $1.35 per car." Based on "the illegal charging and exacting of said $1.35 per car in excess of the legally applicable switching rate by the defendant, the defendant has had and received" from the shipper $1,890 "more than it was legally entitled to charge said company, which said amount is now owing to this plaintiff." Demand and refusal were pleaded.
The answer "admits that the allegations made in the petition herein are true." It then pleads that more than two years had elapsed since the last charge was made and that plaintiff's claim was barred by the statute of limitations. The court sustained this plea.
The sole question before us is whether the general statutes of limitations or the provisions of a two-year limitations contained in the statutes regulating railroad rates and charges shall apply.
The Act of 1893 (Chapter 171) dealing comprehensively with railroads defines "extortion" to be the charging and collecting by a railroad corporation for its services of more than a just and reasonable rate. Section 816, Kentucky Statutes. A company guilty of "extortion" is subjected to a criminal penalty and made liable in damages to any party aggrieved. However, it is provided that "all prosecutions and actions *** shall be commenced within two years after the offense shall have been committed, or the cause of action shall have accrued." Section 819, Kentucky Statutes. The provisions of that act authorizing criminal proceedings for extortion have been held void because no standard is prescribed for determining what are just and reasonable rates. Louisville & N. Railroad Company v. Commonwealth, 99 Ky. 132, 35 S.W. 129, 18 Ky. Law Rep. 42, 33 L.R.A. 209, 59 Am.St.Rep. 457. In 1900 a curative statute was enacted. Section 820a-1 et seq., Kentucky Statutes. This act provides that upon complaint, or on its own initiative, the Railroad Commission may determine whether a corporation has been charging or collecting extortionate rates. Procedure is outlined for a hearing and determination of the issue. If the Commission finds that the company is or has been guilty of extortion, it shall make and fix a just and reasonable rate. If the company should thereafter charge or collect a higher rate for like services, it shall be deemed guilty of extortion and upon conviction subjected to certain penalties. The act of 1893 and the act of 1900 are in pari materia and must be read together. McChord v. Louisville & N. Railroad Company, McChord v. Cincinnati, N. O. & T. P. Ry. Co., 183 U.S. 483, 22 S.Ct. 165, 46 L.Ed. 289.
An Act of 1922, Chapter 102, amended in 1930, Chapter 166 (Section 201g-1 et seq., Kentucky Statutes), "Further regulating common carriers and prescribing the duties and powers of the railroad commission with reference thereto," provides for the publication of tariffs for intrastate shipments and for their filing with and approval by the Kentucky Railroad Commission. The act makes it unlawful for any carrier "to charge, demand, collect or receive a greater or less compensation for the transportation of property or for any service rendered in connection therewith than is specified in such printed schedules or tariffs." Section 201g-6, Kentucky Statutes. Other restrictions are imposed, remedies provided, and procedure established. A violation of the act is declared to be a misdemeanor and a penalty is prescribed. Section 201g-16, Kentucky Statutes. But prosecutions must begin within two years. Section 201g-17, Kentucky Statutes. As to civil actions, it is provided by Section 201g-18:
"The rights, privileges and remedies herein prescribed shall not be in lieu of, but in addition to the rights, privileges and remedies now existing in such cases under the statutes or the common law."
These several statutes impose restrictions upon carriers and provide aggrieved patrons with rights and remedies not existing at common law either exactly or correspondently. We have held that the limitations of two years prescribed by Section 819 applies to a suit to recover excess charges made in violation of the long and short haul provisions of the act of 1893 (being Section 820 of the Statutes), and stated that the limitations would likewise apply to an action based upon extortion as defined in Section 816. Louisville & N. Railroad Company v. Walker, 110 Ky. 961, 63 S.W. 20, 23 Ky.Law Rep. 453. Neither that act nor any other at the time the decision was rendered contained such a saving clause as Section 201g-18 of the Statutes. It first appeared in the act of 1922, Chapter 102, Section 18. That act declared, as we have stated, that the "rights, privileges and remedies" therein prescribed should not be in lieu of but in addition to those existing under the common law. An amendment enacted in 1930, Chapter 166, Section 24, added "the statutes or."
It is to be observed that the only right of civil action for a violation of the statutes prohibiting the collection of excessive rates is contained in Section 816, which in general terms only defines "extortion" as charging "more than a just and reasonable rate of toll or compensation." The later acts establish the criterion of reasonableness to be the rates established by the carrier by and with the approval of the Railroad Commission and re-define "extortion" as collecting more than the tariff. It is a close question whether or not the two-year limitation provision as to a cause of action for damages for extortion--contained only in Section 819--is exclusive. In enacting the later statutes further regulating railroad charges and creating additional liabilities, the legislature did not expressly refer to any period of limitations but did make a specific reservation of all common law rights and remedies. That must be recognized and given effect.
It may be noted that a statute of limitations operates generally only on the remedy a party may have and does not extinguish his right. 17 R.C.L. 666. The foregoing saving clause specifically reserved not only all rights but all remedies for their enforcement which were available under the common law or under other statutes. All statutes of limitations appropriate or related to whatever cause of action there may be were thereby retained. The question, therefore, is resolved into whether the legislature intended the special statutory right to recover an overcharge as an "extortion" to be exclusive or cumulative.
At common law a shipper had a right of action for damages resulting from the exaction by a carrier of an unreasonable or excessive rate or charge, except that if excessive charges were voluntarily paid for a long course of years they could not be recovered. 9 Am.Jur., "Carriers," Sections 172, 174. Since the reasonableness of rates is now a matter controlled and established by statute, this specifically related common law right and restriction, in so far as the aspect of reasonableness of the charge is concerned, must be deemed to have been abolished and superseded by the statutes. But we cannot agree with appellee's argument that since the common law knew no such thing as established rates and tariffs as now current, there was no common law action to recover the difference between an established rate and a greater charge. 13 C.J.S., Carriers, § 320, 767.
What is the effect of the statutory provisions for procedure before and determination by the Railroad Commission in respect to claims for reparation? This code of laws makes provision for the recovery of unreasonable charges and overcharges by proceedings before and through the Railroad Commission, some of which are mandatorily required to be pursued before resort is had to the courts. Cf. Southern Railway Company v Frankfort Distillery Company, 233 Ky. 771, 26 S.W.2d 1025. As to such class of rights and specific procedure, it...
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