Atlantic Log & Export Co. v. Central of Ga. Ry. Co. , 171 Ga. 175 ( 1930 )

Hines, J.,

dissenting. 1. I dissent from the ruling stated in the 2d division of the decision. Does section 2640 of the Civil Code of 1910 confer the right on a shipper to bring an action for the recovery of freight charges paid on intrastate shipments, in excess of the rates fixed by the Georgia Public Service Commission? The power to determine what are just and reasonable rates and charges was vested exclusively in the Eailroad Commission of this State under the act of October 14, 1879, by which it was created. Acts 1879, p. 125. By that act and the acts amendatory thereof, the railroad commissioners were required to make <e reasonable and just rates of freight and passenger tariffs, to be observed by all railroad companies doing business in this State on the railroads thereof.” Acts 1879, p. 125; Acts 1889, p. 131; Acts 1907, p. 72; Civil Code (1910), § 2630. The commissioners were likewise required to make reasonable and just rules and regulations to be observed by all railroad companies doing business in this State, as to charges to any and all points for the necessary handling and delivery of freights. They were likewise required and are required to make such just and reasonable rules and regulations as may be necessary for preventing unjust discriminations in the transportation of freight and passengers on the railroads in this State. They were likewise empowered to make just and reasonable rules and regulations to be observed by railroad companies to prevent the paying of any rebate or bonus, directly or indirectly, and from misleading or deceiving the public in any manner as to the real rates charged for freight and passengers. They were likewise clothed with power by rules and regulations to designate and fix the difference in rates of freight and passenger transportation to be allowed for long and shorter distances. Civil Code (1910) § 2630. The Public-Service Commission of Georgia is further authorized to make reasonable rules and regulations touching other matters than those referred to above. Civil Code (1910), §§ 2633, 2634, 2638. So the Public-Service Commission of this State is empowered both to fix reasonable and just freight and passenger rates, and to make reasonable rules and regulations for the government of the public utilities subject to its jurisdiction. It thus appears that the legislature in passing the act of 1879 made a distinction between the making of freight and passenger rates, and regulations for the government of carriers subject to its jurisdiction.

In these circumstances what is the proper construction of section 3640 of the Civil Code? Does this section authorize a suit to recover freight overcharges? It provides that “If any railroad company, doing business in this State, shall, in violation of any rule or regulation provided by the commissioners, . . inflict .any wrong or injury on any person, such person shall have a right of action and recovery for such wrong or injury, . . and the damages to be recovered shall be the same as in actions between individuals, except that in cases of wilful violation of law such railroad companies shall be liable to exemplary damages; provided that all suits under this article shall be brought within twelve months after the commission of the alleged wrong or injury.” It provides a remedy for the recovery of damages for a wrong or injury inflicted on any person by a violation of any rule or regulation of the commission. It provides a remedy by which the person can recover damages for such wrong or injury, and in addition provides for exemplary damages if the injury or wrong is committed wilfully. It does not expressly provide for the recovery of freight overcharges. While the fixing of freight and passenger rates is in a general sense a regulation, is this action such a rule or regulation as comes within the meaning of this section? I am of the opinion that this section should be construed in connection with section 3770 of the Civil Code, which provides a remedy for the recovery of overcharges, and fixes a penalty for so doing. It is true that section 3770 of the Code was taken from the act of 1889; and it may be contended that it was the purpose of the legislature to provide two remedies for the recovery of overcharges. I do not think that this contention is well founded. If the legislature had intended, by the adoption of the act which is now embraced in section 3640 of the Code, to provide a remedy with a penalty for the recovery of overcharges, it would hardly have passed the act of 1889, now embraced in section 3770, which likewise provides a remedy for the recovery of overcharges with a penalty. It is true that the penalties provided in the two sections are different. Clearly the legislature was of the opinion that section 3640 did not provide a remedy for the recovery of overcharges with a penalty, and therefore passed the act of 1889, now embodied in section 3770. Construing these two acts together, it was not the purpose of the legislature of 1879 to provide for the recovery of freight overcharges; and by the passage of the act of 1889 it was the intention of the legislature, not to provide an additional remedy for the recovery of overcharges, but to supply this omission from the act of 1879 by providing a remedy with penalty for the recovery of freight overcharges. So I feel constrained to dissent from the ruling just referred to.

2. I dissent from the ruling made in the 4th division of the decision. The majority hold that section 264-0 of the Civil Code of 1910, when properly construed, "requires that all suits against railroad companies for the recovery of freight charges paid on intrastate shipments, in excess of the rates and tariffs fixed by the Georgia Public Service Commission, shall be brought within twelve months after the commission of the wrong.” The majority do not confine themselves to the proposition that all suits brought under the above section of the code must be brought within twelve months after the commission of the alleged wrong or injury, but so extend the scope of this section as to prohibit any action for overcharges of freight rates unless such action is brought within 12 months after the wrong is committed. The ruling is based upon the assumption that the statute (§ 2640) created a new right which did not exist prior to the adoption of the statute, and that the statute which created the right made the exercise of the right contingent upon the bringing of the suit within twelve months after the commission of the wrong. This reasoning would be sound if this statute created for the first time the right to sue carriers for overcharges of freight, with the provision that the suit must be brought within twelve months from the collection of the overcharges. This statute did not for the first time give to shippers the right to recover from carriers overcharges of freight. Under the common law, where a carrier made overcharges, the same could be recovered by an action for money had and received. 10 C. J. 454, § 717; Cullen v. S. A. L. Ry. Co., 63 Fla. 122 (58 So. 182); Mobile &c. R. Co. v. Steiner, 61 Ala. 559. Besides, the party aggrieved is not limited to this form of action, but may sue in tort for a violation by the carrier of its duty in this respect. 10 C. J. 454, § 717; Smith v. Chicago &c. E. Co., 49 Wis. 443 (5 N. W. 240); Southern Railway Co. v. Schlittler, 1 Ga. App. 20 (3) (58 S. E. 59); Southern Railway Co. v. Moore, 133 Ga. 806 (67 S. E. 85, 26 L. R. A. (N. S.) 851). So the right to recover from a carrier for overcharges of freight exists by the common law; and common-law remedies exist for its enforcement. The act of October 14, 1879 (Ga. L. 1878-9, pp. 125, 129), from which section 2640 is taken, preserves all common-law rights and remedies upon this subject. The 11th section of said act provides that “The remedies hereby given the persons injured shall be regarded as cumulative to the remedies now given by law against railroad corporations, and this act shall not be construed as repealing any statute giving such remedies.” The right to sue for overcharges of freight being given shippers by the common law, and the common-law remedies for the enforcement of this right being expressly preserved by the act from which section 2640 is taken, it can not with any show of reason be held that suits for the recovery of freight overcharges can only be brought under said section of the Code. If the act of October 14, 1879, had provided that all suits for the recovery of overcharges should be brought under that section of the code, it would necessarily follow that the statute of limitations therein provided would be applicable. So if the suits brought by the plaintiffs in these cases had been brought under section 2640 of the Civil Code of 1910, the statute of limitations therein provided would apply.

The majority rely upon the decision in Parmelee v. S., F. & W. Ry., 78 Ga. 239 (supra), to support their ruling. In my opinion it is not authority for the position taken by the majority. In that case this court held that the action brought therein was brought under the law embraced in section 719(j) of the Code of 1882 (section 2640 of the present Code). With that finding of fact, the ruling made in that casé was inescapable. Conceding that an action is brought under section 2640, it clearly and necessarily follows that it must be brought within the time limit thereby fixed. Otherwise it will be barred. A statute instituting a new remedy for an existing right does not take away a pre-existing remedy, without express words or necessary implication. In such a case the new remedy is cumulative, and either may be pursued. When a statute gives a right and remedy which did not exist at common law, and provides a specific method of enforcement, the mode of procedure provided by the statute is exclusive and must be pursued strictly. Southern Railway Co. v. Moore, supra. Besides, by the act of 1889 (Acts 1889, p. 136), now embraced in section 2770 of the Civil Code, it is provided that “In all cases where any railroad or other common carrier shall demand and receive, fpr goods shipped from within or without this State to any point in this State, any overcharge or excess of freight over and beyond the proper or contract rate of freight, and a demand in writing for the return or repayment of such overcharge is made by the person paying the same, said railroad or common carrier shall refund said overcharge within thirty days from said demand; and if said common carrier shall fail or refuse to settle within thirty days, or within said time to refund said overcharge or overpayment, then said railroad or common carrier shall be liable to said person making the overpayment in an amount double the amount of the overpayment, to be recovered in any court having jurisdiction of the same; and more than one claim for such excess may be joined in the same suit.” In view of the fact that the act of October 14, 1879, from which section 2640 is taken, expressly declares that the remedies thereby given shall be regarded as cumulative to the remedies then existing against railroad corporations, and in view of the fact that a shipper could recover from a carrier overcharges by the common law, and in view of the fact that a right of recovery given by statute will not repeal or annul a remedy given by the common law, unless the statute expressly repeals or annuls the common-law remedy, I can see no escape from the conclusion that the ruling made in the 4th division of the decision is unsound. The statute from which section 2640 is taken, now embodied in sec. 2641 of the Civil Code (1910), expressly declares that the remedy thereby given is cumulative. The majority in their opinion hold that the remedy thereby given is exclusive. To this I can not assent.