Metcalf v. Payne

• Decision Date: 10 December 1925
• Docket Number: 4 Div. 226
• Citation: 214 Ala. 81,106 So. 496
• Parties: METCALF et al. v. PAYNE, Director General of Railroads.
• Court: Alabama Supreme Court

106 So. 496

214 Ala. 81

METCALF et al. v. PAYNE, Director General of Railroads.

4 Div. 226

Supreme Court of Alabama

December 10, 1925

Appeal from Circuit Court, Geneva County; H.A. Pearce, Judge.

Action by John Barton Payne, Director General of Railroads operating the Central of Georgia Railroad, against W.L Metcalf, executor, and Sallie Metcalf, executrix, of the will of P.M. Metcalf, deceased. From a judgment for plaintiff defendants appeal. Transferred from Court of Appeals under section 7326, Code of 1923. Affirmed.

Gardner and Somerville, JJ., dissenting.

On paying damaged shipper, road became subrogated to his right against shipper benefited by the error.

This cause was tried before the court without a jury, resulting in a judgment for plaintiff, from which defendants have appealed.

The material facts are, in brief, as follows: On January 25 1919, a carload of cattle belonging to P.M. Metcalf (now deceased), and consisting of 44 head, was shipped over the Central of Georgia Railway from Eufaula, consigned to Rice & Son, New Orleans, La. On the same date D.C. Turnipseed shipped over said Central of Georgia Railway a car of 37 head of cattle consigned to a concern at National Stockyards, Illinois. These cars were crossed in some manner at Montgomery, the shipment intended for New Orleans going to National Stockyards, and the shipment intended for the latter place going to New Orleans. The car sent to New Orleans was sold by Rice & Son and netted $2,670.13, and the proceeds remitted to P.M. Metcalf. The car belonging to Metcalf, which went to National Stockyards, contained smaller, inferior cattle, and was of value not more than $1,270.13. P.M. Metcalf therefore actually received $1,400 more than his cattle were worth. The Director General of Railroads made a settlement with Turnipseed, the mistake in shipment being the fault of the railway, and brought this suit against the executors of the estate of P.M. Metcalf to recover the excess sum received by Metcalf as a result of the error. There was no proof of assignment by Turnipseed of any claim he had against Metcalf, but plaintiff relied upon the doctrine of subrogation. There was no proof of any presentation of any claim against P.M. Metcalf during his life or to his executors, but plaintiff rested for proof of presentation upon the claim filed in the probate court where the estate of P.M. Metcalf, deceased, was being administered, which claim is as follows:

"Estate of P.M. Metcalf, Deceased, Dr., to John Barton Payne, Director General of Railroads. Operating Central of Georgia Railroad, in the Sum of Fourteen Hundred ($1,400) Dollars, for that:

"(1) January 25, 1919, R.H. Barbaree shipped via. Central of Georgia Railroad forty-four (44) head of cattle in car L. & N. 19978 from Eufaula, Alabama, consigned to C.H. Rice and Son, New Orleans, Louisiana, which cattle were owned by the deceased, P.M. Metcalf.

"(2) January 25, 1919, D.C. Turnipseed shipped via. Central of Georgia Railroad thirty-seven (37) head of cattle from Fitzpatrick, Alabama, in car L. & N. 19928, consigned to National Live Stock Commission Company at National Stockyards, Illinois, which is near St. Louis.

"(3) These two cars of stock were crossed at Montgomery, Alabama. The shipment intended for New Orleans was sent to National Stockyards, Illinois, and the shipment intended for National Stockyards, Illinois, went to New Orleans, Louisiana.

"The car of stock which was sent to New Orleans, Louisiana, was sold by C.H. Rice and Son and netted $2,670.13, the proceeds of which were remitted to the deceased, P.M. Metcalf.

"The stock of P.M. Metcalf, which should have been sent to New Orleans, but was sent to National Stockyards, Illinois, was very much smaller cattle than, and inferior to, the cattle which was consigned to National Livestock Commission Company, but which went to New Orleans, Louisiana. The market value of the cattle which belonged to the deceased, P.M. Metcalf, was not more than $1,270.13, so that the said P.M. Metcalf actually received $1,400.00 more than his cattle was worth. The forty-one (41) head of cattle which went to National Stockyards, Illinois, was sold there and netted $1,123.41. Three head of the stock died in transit. Therefore the estate of the said P.M. Metcalf is indebted in the sum of $1,400."

"State of Georgia.

County of Chatham.

"Before me personally appeared George S. Gaillard, who being duly sworn, deposes and says: Deponent is freight claim agent of Central of Georgia Railway Company and is the duly authorized agent of the Director General of Railroads for the collection of all outstanding claims due the Director General of Railroads arising out of the operation of Central of Georgia Railroad, and that the facts stated in the foregoing account against the estate of P.M. Metcalf, deceased, are true and correct; and that the amount is justly due after allowing all proper credits.

G.S. Gaillard.

"Sworn to and subscribed before me this 6th day of July, 1920.

"[Seal.] H.V. Jenkins,

"Notary Public, Chatham County, Ga.

"Filed in the office July 16, 1920.

"W.H. Morris, Judge of Probate."

Defendants' objection to the introduction of said claim, upon the ground it showed no liability of defendants to the plaintiff, was overruled and exception duly reserved.

Count 4 of the complaint is as follows:

"The plaintiff claims of the defendants $1,400, for that, on to wit, January 25, 1919, P.M. Metcalf, now deceased, through his agent, R.H. Barbree, shipped via. Central of Georgia Railroad 44 head of cattle in car L. & N. 19978 from Eufaula, Ala., consigned to C.H. Rice & Son, New Orleans, La., and for that on the same day, to wit, January 25, 1919, D.C. Turnipseed shipped via Central of Georgia Railroad 37 head of cattle from Fitzpatrick, Ala., in car L. & N. 19928, consigned to National Livestock Commission Company at National Stockyards, Ill., which stock yards are near the city of St. Louis, Mo. Plaintiff avers that said two herein named shipments of cattle crossed at Montgomery, Ala., on the line of said Central of Georgia Railroad, and that the said shipment intended for and consigned to said C.H. Rice & Son of New Orleans, La., was in fact sent to said National Stockyards, Ill., and there delivered to said National Livestock Commission Company, and by said company sold and disposed of 'for account of whom it may concern, and for the net amount of $1,123.41; and that said shipment of cattle consigned to said National Livestock Commission Company at National Stockyards, Ill., was in fact sent and shipped to New Orleans, La., and there delivered to said C.H. Rice & Son, who disposed of same for the net amount of $2,670.13, which amount was, by said C.H. Rice & Son, paid to said P.M. Metcalf, now deceased. And plaintiff avers that, on to wit, May 1, 1919, plaintiff or his predecessor in office, as a Director General of Railroads, paid and settled with said D.C. Turnipseed for the damage sustained by him as a result of the said crossing of said two shipments at Montgomery, Ala., and the carrying of his said shipment intended for National Stockyards, Ill., to New Orleans, La., and as in this count set forth and recited. And plaintiff avers that the amount sued for in this case represents the difference between the net proceeds of the sale of the said cattle which were actually shipped to New Orleans, as herein shown, less the market value at New Orleans, at the time of said sale at that place, of the said cattle of P.M. Metcalf, now deceased, and which cattle should have been shipped to New Orleans, La., but

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