Terrell v. Southern Ry. Co.

• Decision Date: 30 June 1909
• Citation: 164 Ala. 423,51 So. 254
• Parties: TERRELL ET AL. v. SOUTHERN RY. CO.
• Court: Alabama Supreme Court

51 So. 254

164 Ala. 423

TERRELL ET AL. v. SOUTHERN RY. CO.

Supreme Court of Alabama

June 30, 1909

On Application for Rehearing December 16, 1909.

On Rehearing.

Appeal from Chancery Court, Jefferson County; A. H. Benners Chancellor.

Bill by the Southern Railway Company against A. J. Terrell and the Union Stone & Contracting Company for discovery, accounting to enjoin a pending action at law, and settling the equities between the parties. From a decree overruling demurrers to the bill, defendants appeal. Reversed and rendered.

The first paragraph, after describing the parties to the suit avers upon information and belief that A. J. Terrell is the sole executive officer of the Union Stone & Contracting Company, and as such has charge and control of the property business, books, and records of said Union Stone &amp Contracting Company, which latter company is a corporation organized and existing under the laws of Alabama, with its principal office at Birmingham, Ala. The second paragraph alleges that A. J. Terrell has commenced a suit against the complainant in the circuit court of Jefferson county, Ala., which is still pending, and wherein Terrell complains of complainant in 15 separate counts, asking various sums of money, ranging in amounts from $1,000 to $10,000, and that said cause is set down for trial on the 25th day of May, 1908. (The summons and complaint is made an exhibit to the bill.) The third paragraph alleges that the complainant is a common carrier of freight and passengers between Generey's Gap and Demopolis, Ala., and that it operated the railroads in the years 1905, 1906, and 1907, as stated in said complaint, and did haul large quantities of stone from Generey's Gap to Demopolis, amounting to about 18,000 tons, requiring a large number of freight cars for that purpose, and many months in which to deliver the same, and that it is now claimed by said Terrell in his complaint that said stone was hauled for him under some sort of contract by and between himself and some agent or agents of the complainant. It is also claimed by Terrell that he was the owner of the rock quarry at Generey's Gap out of which said stone was quarried, and he claims that he has been damaged by reason of the alleged default or breach of said contract on the part of this complainant in its failure to furnish a sufficient number of cars for said work, and in failing to handle said cars promptly, and by reason of the loss of some part of said rock while being carried by complainant, and complainant further represents that since the commencement of this suit Terrell has called upon this complainant to answer certain interrogatories for the purpose of making discovery of certain subject-matters supposed to be involved in said suit. (A copy of these interrogatories is attached.)

It is then alleged that complainant had no knowledge or information that any of its officers or agents made or entered into any contract or agreement with the said Terrell as claimed in the several counts of this complaint, but states that some of complainant's officers or agents had correspondence with the defendant Union Stone & Contracting Company, and that said Terrell was only an agent or servant of said contracting company; and complainant alleges on information and belief that the quarry at Generey's Gap from which said stone was quarried and carried by complainant to Demopolis, was and is the property of the Union Stone & Contracting Company, and not the property of said Terrell, and that said corporation was and is the legal beneficiary of any cause of action, if any, which may have arisen against this complainant by reason of any carriage or undertaking of carriage of said stone from Generey's Gap to Demopolis. It is then alleged that complainant's information as to said matters is derived principally from correspondence between complainant and the officers, agents, or servants of said Union Stone & Contracting Company, including one J. D. Foy, formerly claiming to act as president of said company, and said A. J. Terrell, as general manager or other executive officer, and one W. J. Salisbury, and that complainant did not know said Terrell in the matter except as an official of said company. It is then alleged that Terrell now claims an individual and pecuniary interest in the subject-matter of this suit against complainant, but this defendant is unable to state just what the character of that interest is, and how and when same was acquired by the said Terrell, or whether any such interest had been acquired by such Terrell at all. It is then alleged that, if a proper discovery could be made by the defendant in this cause as to said matters involving the ownership of said rock quarry, the fact would be developed that Terrell had no legal interest in the subject-matter of the suit, but that the said corporation, the Union Stone & Contracting Company, alone has the entire pecuniary interest in the subject-matter of such suit by reason of its ownership of said property, and of said rock and stone when same was quarried, and that the said Terrell is seeking to recover from this complainant something to which he is not entitled in law or equity, but that this complainant cannot, in the said suit of Terrell against it, produce the evidence of this fact, and that the process of this court for obtaining discovery of said defendant is necessary in order to determine whether or not this complainant is liable, if liable at all, by reason of the alleged failure or breach of contract complained of in this suit to said Union Stone & Contracting Company, or to said Terrell; that the issues involved in said suit of Terrell against this complainant will necessitate and require going into all details of the transactions and dealings between said Terrell and the Union Stone & Contracting Company and this complainant, whereby said stone was handled by this complainant as a common carrier, and including also all the negotiations leading up to the carrying of said stone and the delivery thereof at Demopolis; that the questions involved in said dealings are too numerous and too complicated to be intelligently understood and passed on by a jury; that it is claimed by Terrell that this complainant contracted to furnish him with 36 cars per week to Generey's Gap, at the rate of 6 cars per day, for handling said stone; that the complainant failed to furnish said cars, or any sufficient number for said purpose, whereby the said Terrell was greatly damaged, amongst other respects, in this: That the expense of maintaining said quarry was greatly increased by reason of the delay in getting cars, necessitating the keeping of many men idle at the quarry, and that said Terrell could not discharge said men, but had to keep them on his pay roll in order to have an organized force on said works at any and all times, and that his business was thereby disorganized, and that he lost many thousands of dollars of profits involved in said contract (see counts 8 and 12, inclusive, of the complaint, Exhibit A).

This complainant, while denying said claim of Terrell, would seek to show in defense thereof that it furnished a reasonably sufficient number of cars to handle said business, or as many cars as it could reasonably furnish, in view of the unexpected, unanticipated, and extraordinary demand for cars during said time upon it by its other customers; also that if any loss was incurred by said Terrell or said contracting company, said loss was brought on by themselves or contributed to by them for failing to have a proper force of men at work to get out said stone and promptly load the same when cars were furnished for that purpose, and failed to have their business organized properly or maintained with a view of expeditiously fulfilling their duty in getting out and shipping said stone to destination, and this would involve an inquiry as to the operation of the quarry at said Gap during the time when said stone was being shipped from said Gap to Demopolis, a period of one year and eleven months. Said inquiry involves also a minute and careful inquiry into all the details of said business of said quarry, including the number of men requisite to do the work, the actual cost of getting out the stone, and all elements of cost thereof, the difference between the cost and the market price thereof, the method of handling said stone from the quarry to the cars, the number of interruptions to said work by bad weather and the like, and the effect thereof in contributing to the failure of said Terrell or the contracting company to load the cars furnished by complainant, thereby causing or contributing to Terrell's alleged loss. Complainant will also show as a defense to said claim that said Terrell failed to properly unload and handle said stone at Demopolis, and that he left many cars standing loaded at the time for a long period of time, using the said cars for storage purposes and the like, thereby contributing largely to the embarrassment of complainant in hauling said stone, and thereby preventing complainant from using said cars to haul said stone a number of days. The number of cars thus situated and the number of days they were kept out of business in the manner stated will have to be inquired into and the loss to said Terrell or the contracting company will have to be calculated. Furthermore the kind of organization of said Terrell or the contracting company at Demopolis for hauling stones from Demopolis to a point on the Tombigbee river where said stone was expected to be used by the United States government said Terrell claiming that he is also interested in a contract with said business for supplying said stone for building a lock on the river and the failure of Terrell to have a proper organization...