Gulf, M. & N.R. Co. v. Hunt Bros. Furniture Co.

• Court: Tennessee Supreme Court
• Writing for the Court: DeHAVEN, Justice.
• Citation: Gulf, M. & N.R. Co. v. Hunt Bros. Furniture Co., 117 S.W.2d 12, 173 Tenn. 327 (Tenn. 1938)
• Decision Date: 28 May 1938
• Parties: GULF, M. & N. R. CO. v. HUNT BROS. FURNITURE CO.

117 S.W.2d 12

173 Tenn. 327

GULF, M. & N. R. CO. v. HUNT BROS. FURNITURE CO.

Supreme Court of Tennessee.

May 28, 1938

Error to Circuit Court, Madison County; DeWitt Henderson, Judge.

Action to recover an undercharge for freight by the Gulf, Mobile & Northern Railroad Company against the Hunt Brothers Furniture Company. Judgment for the defendant, and plaintiff brings error.

Judgment of the trial court reversed and rendered.

Pearson & Spragins, of Jackson, for plaintiff in error.

Pigford & Key, of Jackson, for defendant in error.

DeHAVEN Justice.

This is an action instituted by the Gulf, Mobile & Northern Railroad Company, on October 1, 1935, against Hunt Brothers Furniture Company to recover $40.31, the balance of freight charges remaining unpaid on a carload of furniture consigned to Hunt Brothers Furniture Company at Dyersburg, Tennessee, by the Memphis Furniture Company, Memphis, Tennessee.

The defendant furniture company filed a plea denying that it was indebted to the railroad company in any amount, and further that any right of action which the railroad company ever had by reason of the matters set up in the summons were then barred by the statute of limitations of one year as set out in section 5434 of the Code of Tennessee.

The case was tried before the circuit judge, without the intervention of a jury, upon a written stipulation of facts. The court sustained the plea of the statute of limitations and dismissed the case. The railroad company has appealed to this court and assigned errors.

It appears from the stipulation of facts that the carload of furniture in question was shipped on June 2, 1933, and that the amount of $54.95 was quoted and collected from defendant by the railroad company in full settlement, under a misconception of the size of the car. That when the freight charges were checked in the accounting office of the railroad company it was found that the charges had not been assessed in accordance with the tariffs of the railroad company on file with the Railroad and Public Utilities Commission of Tennessee; that the correct charge should have been $95.26 and that the amount of $54.95 erroneously quoted and collected resulted in an undercharge of $40.31. It further appears from the stipulation that this shipment was wholly within the State of Tennessee and the intrastate rates in Tennessee were applicable to said shipment.

The sole question presented for determination is whether the railroad company's right of action was barred by reason of its having failed to institute suit for collection of the undercharge involved within one year of the delivery of the furniture in question to the furniture company.

Section 5434 of the Code, which is relied upon by the furniture company as barring this action, and made the basis of the lower court's decision, is as follows:

"Limitation.--All prosecutions or actions under this chapter shall be commenced within one year after the offense shall have been committed or the cause of action shall have accrued, or the same shall be barred." (Italics ours.)

It is apparent that, as a prerequisite to the applicability of the above-quoted section of the Code to the instant case, it must first be made to appear that the cause of action is an action under chapter 23 of the Code, the chapter in which section 5434 is found. This chapter is entitled "Regulation of Common Carriers and Public Utilities." The portion of the chapter having to do with common carriers extends from section 5380 of the Code to and including section 5447. Sections 5380 to 5396 relate to the appointment of the Railroad and Public Utilities Commission and prescribe rules for the conduct of its business. Section 5397 confers upon the Commission power to fix freight and passenger rates. Section 5415 makes all railroads subjects to this statute and defines common carriers.

Section 5416 prohibits special rates, rebates, etc., as discriminations, or preferences in cars, as between shippers and declares the same unlawful. Section 5417 prohibits exorbitant rates. Section 5418 prohibits undue or unreasonable prejudice, to any particular person or locality. Section 5419 makes a greater charge for a shorter distance within the longer distance a misdemeanor. Section 5420 provides for a fine of not less than $500 nor more than $2,000 for extortion or unjust discrimination, or for the giving to any person or locality, or to any description of traffic, an undue or unreasonable preference or advantage. Section 5421 provides as follows:

"Suits may be brought by any person against any person or corporation, owning or operating such public service company in Tennessee, for the violation of sections 5416 to 5421, before any court having jurisdiction to try the same."

Section 5422 provides that suits for the recovery of any penalties imposed by the provisions of this article shall be brought by the district attorneys...