Opinion
4 Div. 226.
December 10, 1925.
Appeal from Circuit Court, Geneva County; H. A. Pearce, Judge.
Mulkey Mulkey, of Geneva, for appellants.
Demurrer to count 4 should have been sustained. 1 Hutchinson on Carriers, § 130. The statement of claim was insufficient, and its admission was error. Watson v. Hamilton, 210 Ala. 577, 98 So. 784; Smith v. Fellows, 58 Ala. 467.
C. D. Carmichael, of Geneva, and A. A. Carmichael, of Miami, Fla., for appellee.
The claim filed in the probate office clearly sets forth the nature of the demand, and is sufficient. Hallett v. Branch Bank, 12 Ala. 193; Flinn v. Shackleford, 42 Ala. 202; Floyd v. Clayton, 67 Ala. 265; Allen v. Elliott, 67 Ala. 432; Smith v. Fellows, 58 Ala. 467; Borum v. Bell, 132 Ala. 85, 31 So. 454; Gillespie v. Campbell, 149 Ala. 193, 43 So. 28; Parker v. Eufaula Nat. Bank, 121 Ala. 516, 25 So. 1001; Holloway v. Calvin, 203 Ala. 663, 84 So. 737; Page v. Bartlett, 101 Ala. 193, 13 So. 768; Pollard v. Sears, 28 Ala. 484, 65 Am. Dec. 364. Plaintiff settled the claim of Turnipseed, and was thereby subrogated to the latter's demand against defendants. 37 Cyc. 363; White v. Martin, 1 Port. (Ala.) 215; Crescent News v. Hines, 7 Ala. App. 609, 61 So. 9; Griel Bros. v. Pollak, 105 Ala. 249, 16 So. 704; Vandiver v. Pollak, 107 Ala. 547, 19 So. 180, 54 Am. St. Rep. 118; Hutchinson on Carriers (3d Ed.) § 781; McWhorter Armor v. Moore, 7 Ga. App. 439, 67 S.E. 1100; Hunter, etc. v. Lawton Co., 12 Ga. App. 23, 76 S.E. 782.
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.
While all the authorities agree the statement of claim need not be as specific as formal pleadings, yet it should be sufficiently definite to inform the personal representative of the nature and amount of liability it imposes, and to distinguish it with reasonable certainty from all similar claims. Smith v. Fellows, 58 Ala. 467; Bibb-Falkner v. Mitchell, 58 Ala. 657; Parker v. Eufaula Nat. Bk., 121 Ala. 516, 25 So. 1001; Holloway v. Calvin, 203 Ala. 663, 84 So. 737; Kornegay v. Mayer, 135 Ala. 141, 33 So. 36; Flinn v. Shackelford, 42 Ala. 202.
The case of Bibb-Falkner v. Mitchell, supra, is very much in point:
"A presentment which will avoid the bar of the statute must be more than enough merely to excite the inquiry of the personal representative; it must give such information of the existence of the claim, that he may determine — assuming its validity — how far he can proceed safely in the administration of the estate as solvent."
All the authorities agree that the presentation must show the nature of the claim. In the recent case of Watson v. Hamilton, 210 Ala. 577, 98 So. 784, may be found quotations from several of our decisions, among them that of Kornegay v. Mayer, 135 Ala. 141, 33 So. 36, wherein the court said the presentation must be such as "to give information of the character of the claim and of the amount of liability it imports." (Italics supplied.) And, as said in Smith v. Fellows, supra: "This rule has existed too long without material judicial or legislative change, to be open to reconsideration in this court."
In view of the long established rule, I am constrained to the opinion that the claim filed fails to meet these requirements. The nature or character of the claim is nowhere disclosed. It does not inform the representative of the estate how or in what manner the estate is due any amount to the plaintiff here. It may be conceded that it doubtless discloses a liability of the estate to Turnipseed, but there is no connection shown between a claim of Turnipseed and the plaintiff. There is no assignment of any such claim. Counsel for plaintiff do not rely upon any assignment, but upon the principle of subrogation, growing out of the fact that plaintiff settled with and paid Turnipseed on account of the mistake, but to give effect to any theory of subrogation the fact of such payment must appear. There is no such averment in the claim filed, nor language susceptible of such construction. Clearly, the representative could not determine upon any course of action as to the estate by a consideration of the claim filed. Its nature is not made to appear. The connecting link is omitted, and I am drawn to the conclusion, by the settled rule of construction of this statute, and by the logic of the situation in line with our former decisions, that the statement of the claim filed in the probate office was insufficient, and that defendants' objection to its introduction should have been sustained.
For this reason, therefore, I am constrained to respectfully dissent.
SOMERVILLE, J., concurs in the foregoing views.