Texarkana & Ft. S. Ry. Co. v. Houston Gas & Fuel Co.

• Decision Date: 09 June 1932
• Docket Number: No. 1569-5919.,1569-5919.
• Citation: 51 S.W.2d 284
• Parties: TEXARKANA & FT. S. RY. CO. et al. v. HOUSTON GAS & FUEL CO.
• Court: Texas Supreme Court

51 S.W.2d 284

TEXARKANA & FT. S. RY. CO. et al. v. HOUSTON GAS & FUEL CO.

No. 1569-5919.

Commission of Appeals of Texas, Section A.

June 9, 1932.

Certified Questions from Court of Civil Appeals of First Supreme Judicial District.

Suit by the Houston Gas & Fuel Company against the Texarkana & Fort Smith Railway Company and others. Judgment for plaintiff, and defendants appeal to the Court of Civil Appeals, which certified questions to the Commission of Appeals.

Questions answered.

Andrews, Streetman, Logue & Mobley and Harry R. Jones, all of Houston, for appellants.

Fulbright, Crooker & Freeman, of Houston, for appellee.

CRITZ, J.

This case is before us on two certified questions from the Court of Civil Appeals for the First District at Galveston. In the interest of brevity we omit reproducing the entire certificate and content ourselves with making a short statement of the issues involved.

This suit was filed in the district court of Harris county, Tex., by Houston Gas & Fuel Company, hereafter called appellee, against the Texarkana & Fort Smith Railway Company et al., hereafter called the railroads, to recover damages for certain alleged freight overcharges involving a number of shipments of petroleum coke, shipped by appellee from West Port Arthur, Tex., to Houston, Tex., over the lines of railroad owned and operated by these railroads. The shipments involved all occurred during the period from October 24, 1923, to May 31, 1926. The suit was filed more than two years after some of the shipments were made and the freight paid, but less than four years after such times.

It seems from the record that the rate actually paid was 9 cents per hundred pounds and the railroads contend that this was the correct rate. The appellee contends that the correct rate was 7 cents per hundred pounds, and the suit is for the difference, 2 cents. The shipments were made under written bills of lading issued by the railroads, and this instrument bound such carriers to transport the freight above mentioned at the lawful rate.

The case was tried in the district court, where judgment went for appellee in the sum of $5,475.76, being for a 2-cent overcharge. The railroads prosecuted appeal to the Court of Civil Appeals at Galveston, which court has certified to this court the following questions:

"First: Did the four rather than the two-year statute of limitations apply to the appellee's cause of action for the refund sued for?

"Second: If the four-year statute governed, which rate was the lawful one, the 9 cents collected by appellant-carriers, or the 7 cents applied by the trial court?"

Opinion.

We shall first proceed to determine the issue of limitation. We think it is the settled law of this state that a bill of lading is a written contract. Elder, Dempster &amp Co. v. St. L. S. W. Ry. Co. of Texas, 105 Tex. 628, 154 S. W. 975; Houston & T. C. Ry. Co. v. Southern A. C. Co., 112 Tex. 139, 245 S. W. 644 (Com. App. opinion adopted). We think it is equally as well settled as the law of this state that a suit for overcharges for freight shipped on a written bill of lading is a suit for debt within the meaning of subdivision 1 of article 5527, R. C. S. 1925. This proposition is grounded on the fact that the term "actions for debt," which are required by the above-cited article to be commenced within four years after the cause of action shall have accrued, include all suits brought to recover money for the breach of contract in writing without regard to the technical distinction between actions and suits, and debts and damages at common law. Robinson v. Varnell, 16 Tex. 382. See, also, authorities above cited.

In Robinson v. Varnell, supra, our Supreme Court had before it a case involving an action to recover money as damages founded on a breach of a written contract. In that case this court, speaking through Judge Wheeler, went into an exhaustive discussion of the term "debt" as used in the act of 1841, which required "actions of debt grounded on any contract in writing," to be commenced within four years, and held that such term should not be given a strict literal interpretation, but on the other hand should be given such a reasonable interpretation as would give it effect according to the spirit and intention of the statute. We quote the following from this opinion: "* * * The more reasonable construction, and that which best harmonizes with the general provisions and policy of the statute, we think, is, to consider the terms `actions of debt, grounded on any contract in writing,' as including all suits brought to recover money for the breach of a contract in writing, without regard to the technical distinction between debt and damages. The present action was brought upon a contract in writing, to pay a sum certain in money, technically a debt, and an unliquidated sum for the breach of the contract to deliver specific property, technically damages. Both demands arise upon the breach of the same written contract; and it cannot have been intended in such a case, that one period of limitation should bar one part of the cause of action, and a different period another part, arising upon the same contract, merely because, in technical legal phrase, the one is called debt and the other damages. The suit being for the recovery of money for the breach of a written contract, comes within the reason and intention of the provision prescribing the limitation of actions for money demands, arising upon written contracts; which being four years, the Court did not err in holding that the right of action was not barred by the statute."

In the Elder, Dempster Case, supra, the Supreme Court, speaking through Judge Hawkins, again reviewed the authorities bearing on the above question at great length and reaffirmed the rule announced in Robinson v. Varnell. It is true that the Elder, Dempster Case did not involve overcharges for the carriage of freight. It did, however, involve a suit for damages based upon a written contract in the form of a bill of lading, whereby the railroad company bound itself to transport eight bales of cotton from point of shipment to a named destination. The cotton was not delivered at destination, and the shipper's assignee sued for damages measured by the value of the cotton. It seems that the suit was filed at a time when it was barred by limitation if the two-year statute applied, but was not barred by the four-year statute. The Supreme Court held that the four and not the two year statute applied. We are unable to draw any distinction between a suit for damages based on a breach of the contract to deliver goods shipped by railroad, where the breach was a failure to deliver, and a suit for damages based on the breach of the same contract to transport the same goods at a lawful rate, where an unlawful rate is charged. The legal principle involved is exactly the same in the two instances.

H. & T. C. Ry. Co. v. Southern, etc., supra, involved the exact question here under discussion. The appellee in that case sued the railroad company for overcharges for freight shipped by written bills of lading. The record shows conclusively that more than two years had elapsed between the time of the alleged overcharge and the filing of the suit, but four years had not elapsed. Under such a record the Court of Civil Appeals certified to the Supreme Court the question as to whether the claim was barred by the two-year statute of limitation. The case was referred to this Section of the Commission, and the opinion, which was by the late Judge Randolph, again exhaustively reviewed the authorities and held that the four, and not the two year statute of limitation applied. The opinion in that case was expressly adopted by the Supreme Court.

It follows from what we have said that the four and not the two year statute of limitation applies to this case.

The second question involved the proper interpretation and construction of certain rate orders promulgated by the railroad commission. It is shown that the rate actually collected was 9 cents per hundred pounds. This rate was collected under the provisions of what was...