Metcalf v. Metcalf

The court is of the opinion that the presentation of the claim against the estate sufficiently discloses the nature and character thereof, and sufficiently distinguishes it from all other claims, so as to prevent the operation of the statute on nonclaims (section 2590, Code of 1907, and section 5815, Code of 1923), in favor of the estate of defendants' intestate. Watson v. Hamilton, 210 Ala. 577, 98 So. 784; Hallett v. Branch Bank, 12 Ala. 193; Smith v. Fellows, 58 Ala. 467; Bibb-Falkner v. Mitchell, 58 Ala. 657; Holloway v. Calvin, 203 Ala. 663,84 So. 737; Parker v. Eufaula Nat. Bank, 121 Ala. 516, 25 So. 1001; Kornegay v. Mayer, 135 Ala. 141,33 So. 36; Flinn v. Shackelford, 42 Ala. 202.

Count 4 discloses an error in the shipment of the two cars of cattle occurring in Montgomery on the line of plaintiff railroad and delivery of each to the wrong consignee and the cattle so disposed of, and an admitted liability on the part of the railway company for such erroneous shipment, which was tantamount to a conversion; that P. M. Metcalf, deceased, received the benefit of this error, and the shipper Turnipseed suffered the loss; that the railway company, recognizing such liability, paid Turnipseed the damages thus sustained; and that the sum sued for represents the difference between the net proceeds of these shipments. The court is of the opinion the demurrer to this count was properly overruled, and that it shows a right on the part of the plaintiff to recover from the estate of deceased Metcalf such difference.

We are of the opinion the facts therein disclosed, which are supported by the proof, are sufficient to show a liability for conversion of the shipment to Turnipseed by the railway company (Atlantic Coast Line Railroad Co. v. Dahlberg Brokerage Co.,170 Ala. 617, 54 So. 168; 10 C. J. 262 et seq.), and that under these circumstances the railway company became subrogated to the rights of Turnipseed to recover of Metcalf the benefits received by him by reason of the error in shipment and the consequent conversion of the cattle (White v. Martin, 1 Port. 215, 26 Am. Dec. 365; Griel Bros. Co. v. Pollak, 105 Ala. 249,16 So. 704; Hutchinson on Carriers [3d Ed.] § 781; McWhorter v. Moore, 7 Ga. App. 439, 67 S.E. 115; Hunter, etc., Co. v. Lawton Co., 12 Ga. App. 23, 76 S.E. 782).

We find no error in the record, and the judgment will be here affirmed.

Affirmed.

ANDERSON, C. J., and SAYRE, THOMAS, MILLER, and BOULDIN, JJ., concur.