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We are satisfied no error was committed by the trial judge in his charge, embodying as it did this rule of liability, and his judgment is therefore affirmed, with costs.
collected at the stations along the railroad, consisting of wbites and negroes, engaged in shooting firecrackers and otherwise making a noise as such crowds will do in anticipation of Christmas. They further testify that there was some boisterous conduct in the smoker, which, however, was promptly suppressed by the manager of trains, who happened to be on board at that time. They deny that they knew, save for the single incident just referred to, of any improper conduct committed by any one, either on the platform or in the coaches making up that train. The jury evidently credited those witnesses who testified so positively with regard to the shooting of pistols and other explosives on the platform, as well as to the boisterous conduct in the coach, and believed, where so many persons were aware of these things, that the railroad employés either knew, or by the slightest diligence might have been informed, of them. That the jury imputed the wound of this boy to the failure of those in control of the train to discharge their duty is evident from the verdict which was rendered. While it is true they could not foresee the wounding of the defendant in error, yet they should have anticipated that drunken ruffians armed with pistols, unless suppressed, would either accidentaly or intentionally inflict injury upon their fellow passengers.
We think there is abundant evidence to support the verdict of the jury, and to indicate that they were inexcusably negligent in
WALKER V. BOBBITT et al. (Supreme Court of Tennessee. June 24, 1905.) 1. WILLS-ELECTION BY WIDOW.
Where a husband devises to his wife a portion of lands held by them by entirety, he dying intestate as to a portion of the lands, the fact that the wife took under the will did not prevent the remainder of the lands from vesting in her by virtue of her survivorship; the doctrine of election not being applicable. 2. SAME Widow's FAILURE TO RENOUNCE PROVISIONS.
Shannon's Code, 88 4146, 4147, in effect provide that when a husband dies testate, and the widow, not being satisfied with the provisions for her, dissents from the will within a specified time, she shall be entitled to one-third of the personal estate. Held, that where a widow failed to dissent from the will within the time required, and the husband died intestate as to a portion of his personal property, the same passed to his distributees to the exclusion of the widow. 3. STATUTES INTERPRETATION – RE-ENACTMENT.
Where a statute has received a judicial interpretation, and it is re-enacted, it will be presumed the Legisiature intended it should have the same construction which was given to the earlier statute.
Appeal from Chancery Court, Henry County; A. G. Hawkins, Chancellor.
preserving order. The principle of law con- Suit between T. B. Walker, as executor of
trolling in the case is that “wherever a car- Mrs. Henry Bobbitt, deceased, and James rier, through its agents or servants, knows, Bobbitt and others, and from the decree the or has opportunity to know, of threatened in- latter parties appeal. Affirmed. jury, or might have reasonably anticipated
Farabaugh & Rye, for appellants. Lamb the happening of an injury, and fails or neg
& Marr, Quintin Rankin, and W. S. Coulter, lects to take the proper precaution, or to use
for appellee. proper means, to prevent or mitigate such injury, the carrier is liable." 5 Am. & Eng. Ency. of Law, p. 553.
BEARD, C. J. One Henry Bobbitt died This rule was applied in Ferry Co. v. intestate in Henry county, Tenn., in the White, 99 Tenn. 256, 41 S. W. 583. In that year 1890. He left surviving him a widow, case the court quoted and approved a clause Jane Bobbitt, but no lineal descendants. from the charge of Shipman, J., given to the While the owner of some personal property, jury in a suit involving the liability of a the only real estate in which he had an insteamer and its owners for an injury sus- terest at the date of the making of his will tained by one passenger from the violence or at any time thereafter was in a tract of of a fellow passenger. This clause was as 100 acres lying in that county, which had follows: "The defendants were bound to been conveyed to him and his wife, and of exercise the utmost vigilance and care in which they owned the estate by entirety. maintaining order and guarding the passen- In the first clause of his will the testator gers against violence, from whatever source provided for the payment of his funeral exarising, which might be reasonably antici- penses and his debts, and by the third clause pated, or naturally be expected to occur, in he nominated his wife, Jane, as executrix. view of all the circumstances, and of the The second clause of the will is as follows: number and character of persons on board." "I give and bequeath to my beloved wife,
Public policy requires the strict enforce- Jane Bobbitt, all of my estate, both real and ment of this rule. No relaxation of it should personal for and during her natural life, be indulged by the courts. The comfort and and at her death, I will and bequeath twosafety of passengers who commit them- thirds of whatever may remain to the Hopeselves to a carrier depend upon it. The facts well Presbytery, of the Cumberland Presbyof the present case eminently call for its terian Church, to be used by said Presbytery application
in any way they may see proper.” By a codicil to the will, duly executed, the two- 41. In such case the owner is put upon thirds interest given in this clause to Hope- his election, and if he accepts the benefits well presbytery was changed so as to give he is excluded or estopped from asserting it to the trustees of the Cumberland Uni- claim to the property so disposed of. But versity for the endowment of the theological as we understand, this rule or doctrine is department. It will be observed that the not applied save in a case of property in testator made no disposition of the other which the testator has no interest. If he one-third remainder interest in either his has some interest of his own (more than real estate or personal property.
mere possession) in the thing disposed of, Upon his death, his wife, surviving him, bequeathed by him, he will be deemed by took upon herself the execution of the will, his use of general terms to have intended and at the same time accepted its benefits. only a bequest or a devise of his interest, From sources not disclosed in the record she and the owner will not be put to an elecreceived as executrix $6,168.81 from per- tion between maintaining his former title sonalty belonging to the estate. From this and claiming the new benefits provided by she paid to the trustees of Cumberland Uni- the will. McGinnis v. McGinnis, 1 Ga. 496; versity the sum of $2,000, which was receiv- Havens v. Sackett, 15 N. Y. 365; Leonard ed by them in full satisfaction of the resid- V. Steele, 4 Barb. 20. uary legacy given to them by the codicil. That the testator, Henry Bobbitt, had an This payment left in her hands the sum of interest in this realty at the time he made $4,168.81, derived from the personal estate his will, is well settled. This continued in of the testator. She also sold the tract of him until his death. This interest might land of which mention has been made, ripen into a full and complete ownership and received therefor the sum of $4,000. upon the death of his wife leaving him surSubsequently she died, leaving a will by the viving. We think the existence of this interms of which she gave all of her estate to terest, upon principle as well as the author. certain of her collateral kindred. A con- ity of the cases cited, would preclude the troversy having arisen between these lega- application of the rule in question. This tees and the distributees of Henry Bobbitt interest was a valuable one which his credas to the ownership of these two funds, the itors might have reached and subjected by present bill was filed by the executor of execution. Mfg. Co. v. Collier, 95 Tenn. Mrs. Bobbitt's will, asking the chancery 115, 31 S. W. 1000, 30 L, R. A. 315, 49 Am. court to fix and determine the rights of the St. Rep. 921. But the event which made respective claimants to these funds.
the will operative (that is, his death) was As has already been stated, the testator, the same which carried the whole estate in Henry Bobbitt, died intestate as to one- this land into Mrs. Bobbitt, by reason of the third of his estate, and no provision was fact that she, of the two, was the longer made in his will for the contingency which liver.
The question as to the devolution of the the trustees of the Cumberland University, personal estate of which Henry
died taking a part for the whole of the two-thirds intestate is now to be considered. In doing given to them. As to the balance thus left this it is necessary to examine the older upon this settlement, it is clear that it also statutes, as well as the Code provisions with constituted a portion of bis estate undisposed regard to the distribution of the estate of of by his will.
persons dying intestate, and the cases in Upon these facts the chancellor held that, which some or all of these have been consurviving her husband, Mrs. Bobbitt took strued and applied. the entire interest in the tract of land of At common law a devise to the wife by 100 acres, and that her right of survivor- her husband did not prevent her from setting ship was not affected by the doctrine of up claim to dower unless it was so expressed election invoked by the distributees of Hen- in or arose by implication from the terms ry Bobbitt, and further that, her husband of the will too strong to be resisted; otherhaving died intestate as to the portions of wise she could take both her dower and her the personal estate, she took them under the bequest. This, however, was changed by a general statute of distribution; the whole provision in chapter 22 of the Acts of 1784. passing to the legatees named in her will. By section 8 of the act, among other things, From his decree so holding the heirs and it was provided that "if any person should distributees of Henry Bobbitt have appealed die intestate, or make his last will and testaand assigned errors.
ment and not therein make any express proWe agree with the chancellor that the doc- vision for his wife by giving and devising trine of election neither as to the land in unto her such part or parcel of his real and question nor its proceeds can be invoked by personal estate as shall be fully satisfacthe appellants. This doctrine properly arises tory to her, such widow may signify her diswhere a testator manifests a clear intention sent thereto before the judge of the circuit to dispose of property not his own, and by court
in open court within six other parts of his will from his own estate months after the probate of said will, and confers benefits upon the owner of that
she shall be entitled to dowproperty. Dashwood v. Peyton, 18 Vesey,
to wit, one third part of all the
subsequently occurred of the remaindermen,
of which her husband dies seised
and furthermore if such husband should die leaving no child, or not more than two, then in that case she shall be entitled to one-third part of the personal estate; but if he should die leaving more than two children, then, and in that case, such widow shall share equally with all the children, she being entitled to a child's part.”
It will be seen this statute provides for widows belonging to two different classes, the first of which embraces those whose husbands died without leaving a will; and the second, widows who, being dissatisfied with the provisions in their favor made in the wills of their husbands, dissented therefrom in the manner and time fixed by the statute. A widow belonging to the second class by a statutory renunciation of the will was put upon the same plane with one whose busband died intestate, and both were let into the estates of their deceased husbands in the same decree.
So far as this act dealt with the case of a widow whose husband died intestate, it was but a re-enactment, with some modification, of section 1 of chapter 3 of the Acts of 1766 ; but the provision for the widow who, dissatisfied with, renounced, her husband's will, was a new departure.
By that statute, as was said in Malone v. Majors, 8 Humph. 577, “a provision for a wife in a will of itself forces her to elect whetber she will take under or against the will, and that within six months from the probate of the will, for, if she do not express her dissent in open court within that time, the provision for her shall be considered as fully satisfactory to her.” So it was held that the widow whose claims were there in controversy was not entitled to any part of the estate of which her husband died intestate.
Beyond all doubt, this was regarded as a sound interpretation of the statute, and it is a part of the judicial history of the state that, so construed, it was often applied by the courts. In McClung v. Sneed, 3 Head, 218, decided in 1859, but involving matters which arose many years prior thereto, in speaking of one whose husband had provided for her in his will, but who had failed to renounce the provision, the court said: “It is a settled law of this state that she is bound by its provisions, and can take no other part of his estate."
Thus stood the law at the compiling of the Code of 1858. Under Section 2404 of that Code (Shannon's Code, $ 4146) there was brought forward so much of section 8 of chapter 22 of the act of 1784 as related to the rights of a widow for whom provision was made in her husband's will, but who, dissatisfied therewith, dissented; the time for her dissent being extended to 12 months. As in the original act, it was there provided that such widow so dissenting should par
ticipate in his estate as if her husband had died intestate.
It will be observed that this section fails to fix (unlike the original act) the extent to which the dissenting widow would be permitted to share in his estate. As compiled, this was determined by section 2429 (Shannon's Code, $ 4172), which provided in cases of intestacy, in the first subsection, that the personal estate of the intestate should go to the widow and children, or the descendants of children—the widow taking a child's share-and in the second subsec. tion to the widow altogether, if there were no children nor the descendants of children. This omission in the codification was corrected by section 1, c. 3, of the Acts of 1859-60, which is in these words: “When a busband shall die leaving a will, from which the widow dissents within the time and in the manner provided by law, and leaving no child, or not more than two, bis widow shall be entitled to one third part of the personal estate, in addition to her dower in the real estate as provided by law. But, if the husband had more than two children, the widow shall share equally with all the children, she being entitled to a child's share." This now constitutes section 4147 of Shannon's Code.
So taking the provision of the Code with regard to the dissent by the widow from the will of her husband, and this section of the act of 1859–60, and we have in substance, and without marked change in phraseology, a reproduction of so much of the statute of 1784 as had regard to this matter. This being so, why should the court repudiate the construction so long acquiesced in of that statute?
It is a rule well established, and perhaps universally accepted by courts and textwriters, that where a statute has received a judicial interpretation, and it is re-enacted, it will be presumed the Legislature intended it should have the
construction which was given to the earlier statute. Black on Inter. of Laws, 369; Sutherland on Stat. Con. $8255, 256, 424; Bates v. Sullivan, 3 Head, 632; Tenn. Hospital v. Fuqua, 1 Lea, 608.
That this rule was recognized, at least by implication, and the construction given to the original statute in Malone v. Majors, supra, and other like cases, was assumed to be a part of its texture as re-enacted in the Code, is apparent in the case of Waddle v. Terry, 4 Cold. 51. There Milligan, J., speaking for the court, said: “By our law (Code, $ 2404) she [the widow] has the right, within one year after the probate of the will, to elect whether she will accept its provisions
renounce them. If she fails within the time limited to express her dissent according to the forms of law, she is held to be satisfied with the will, and bound by its provisions."
Still later, in Waterbury v. Netherland, 6 , Territory, of the value of $60.40, as shown by Heisk. 513, it is said that, from the failure account hereto attached, marked 'Exhibit of the widow to express her statutory dis- A,' and made a part of the complaint. Plainsent to her husband's will, it will be con- tiff says that 24 hours was a reasonable clusively presumed she is satisfied with its time for the delivery of the goods at Durant; provisions, and will not be permitted to share that he had called for said goods at various in any estate of which he died intestate. times; that defendant had failed and re
We think this is a sound view of the law. fused to deliver the same, to his damage in However, a different one was expressed in the sum of $60.10. Wherefore plaintiff asks Demoss v. Demoss, 7 Cold. 256. The rule judgment against the defendant for said sum there announced was the one applied by the and costs." Summons was issued, returnchancellor in the present case. We have able September 3, 1900. On the same day the carefully examined the opinion in that case,
defendant filed its motion to require plaintiff and we are satisfied that its premises were to make his complaint more definite and cerunsound, and the conclusion there reached is tain, and to allege whether the contract in the face of the canon of interpretation to under which the goods claimed by plaintiff which reference has been made. It stands were shipped was verbal or in writing, and, as against the great weight of authority. if in writing, that plaintiff be required to atWe regard it as misleading, and it is there- tach his original shipping contract to his fore overruled.
complaint. Motion was sustained, and The result is that the decree of the chan- amendment made by interlineation as folcellor is affirmed in so far as it disposed of
lows: “And said company made its bill of the proceeds of the realty in question, and is lading for said property, which is filed herereversed as to the personal estate of which with as Exhibit B.'” And on the same day Henry Bobbitt died intestate. Under the defendant filed its answer, and admits that statute this estate passed to his distributees. it received from the plaintiff at South Cana
dian, Ind. T., on or about September 22, 1899,
mits that the same were consigned to the PATRICK v. MISSOURI, K. & T. RY. CO.* plaintiff at Durant, Ind. T., but denies that (Court of Appeals of Indian Territory, Oct.
they were of the value of $60.40, or other 19, 1904.)
sum; denies that a reasonable time for the 1. CARRIERS BILL OF LADING-SIGNATURE.
delivery of said goods at Durant would not Where a bill of lading containing a car
exceed 24 hours; denies that the plaintiff rier's limited liability contract was delivered had called for the same, or the defendant reunsigned by the carrier's agent to the wife of
fused to deliver the same. The defandant, the shipper, who was illiterate, and its contents were not made known to her, it was inef
further answering, states that said boxes fective as a contract to limit the carrier's com- "were received by this defendant for shipmon-law liability.
ment by virtue of a written contract, a copy 2. SAME PLEADINGS AMENDMENT-CON- of which is hereto attached, marked 'Exhibit FORMITY TO PROOF.
A,' and made a part of this answer; that Where a complaint against a carrier for loss of goods as originally filed contained no
said contract was entered into on the 22d of statement concerning a pretended bill of lad- September, 1899, between the plaintiff and ing, which was first disclosed on a motion made
the defendant, *
it being provided in by defendant to have the complaint made more definite and certain, when it was inserted in
said contract that, in the event of any loss or the complaint by way of interlineation, it was damage thereto, the liability of the defendant proper for the court, on its appearing that the
railway company should be limited to the bill of lading had never been signed by the car
of five dollars per hundredweight; rier's agent, to permit an amendment of the complaint to conform to the proof as author
that under the terms of the con. ized by Mansf. Dig. $ 5080 (Ind. T. Ann. St. tract aforesaid the measure of damages, if 1999, § 3285).
any, in this case, should be five dollars per Appeal from the United States Court for hundredweight.” Defendant states that the the Central District of the Indian Territory, weight of said two boxes was 150 pounds, before Justice Wm. H. H. Clayton, June 6, that said written contract provided that any 1901.
claim which the plaintiff might have or preAction by W. G. Patrick against the Mis- fer against the defendant should be presentsouri, Kansas & Texas Railway Company. ed to some general officer or agent of said From a judgment in favor of plaintiff, de- company within 30 days after the loss or fendant appeals. Affirmed.
damage had been sustained, and that de. On August 3, 1900, the plaintiff filed with
fendant had a station agent at South CanaG. T. Ralls, United States commissioner, a
dian and at Durant, Ind. T., to whom such complaint, and alleged that defendant, as a
claims might have been presented, but that common carrier, received from the plaintiff plaintiff failed to present any such claim at South Canadian, on September 22, 1899,
within said period of 30 days, and further "two certain boxes or packages for shipment,
states that the failure to receive the goods consigned to the plaintiff at Durant, Indian
was not due to any negligence of the defend
ant, and was due to the negligence of the *Rehearing denied June 14, 1905.
plaintits, and asks judgment for its costs.
Said cause was tried by said United States structed that in assessing the damages of commissioner on the 3d day of September, the plaintiff you cannot fix a higher valua1910, and verdict and judgment had for tion upon the goods in question than at the plaintiff for $60.40, from which the defend- rate of five dollars per hundredweight." (3) ant appealed to the United States court, The court erred in instructing the jury as Central District, at Atoka. On February 13, follows: “You are instructed to find your 1901, petition for change of venue was filed verdict for the plaintiff, and to assess his by defendant, and said cause was trans- damages at the sum of $60.40." (4) The ferred to the United States court at South court erred in overruling defendant's motion cAlester, Ind. T. On June 6, 1901, the same for a new trial. being a day of the regular May, 1901, term It is hardly necessary to notice or discuss of said court, this cause came on for trial. any other than the second specification of erThe same was tried by a jury, and after the ror, the defendant contending “that the conintroduction of evidence the plaintiff was tract governing the shipment of goods in conpermitted to amend his complaint by adding troversy was in writing, and fairly limited the words, "which bill of lading was not the value of the goods, and the jury should signed,” to which amendment the defendant have been so instructed, and should not have at the time excepted; and thereupon the been instructed to assess the damages of the court instructed the jury to return a verdict plaintiff below at the full amount sued for, for the plaintiff, and the jury returned the and because of the error of the trial court in following verdict: “We the jury duly em- these respects the motion for a new trial paneled and sworn to try the issue in the should have been granted." The question is above entitled cause, do find the issues in thus fairly presented as to whether the pafavor of the plaintiff and assess his damages per which was attached to the plaintiff's comat sixty and forty hundredths dollars. plaint on motion of the defendant, and sub[Signed) William T. Thurman, Foreman." sequently set forth as an exhibit to the an
On June 8, 1901, the defendant filed its swer of the defendant, constituted a bill of motion for a new trial, and on the 10th day lading under the law. The appellant in his of June, 1901, “the court, having seen and brief says, “This bill of lading was not a bill beard said motion, and being well and tru- of lading in accordance with the technical ly advised in the premises, doth overrule the commercial law, in that the agent of the carsame, to which ruling of the court the de- rier failed to sign it.” The only effect that fendant then and there in open court except- could be attached to the failure of the agent ed.” Whereupon judgment was rendered in to sign this bill of lading would be that it favor of the plaintiff against the defendant would not be negotiable on the market, in for $60.40, with interest thereon at the rate accordance with the mercantile usage; but of 6 per cent. per annum from this date until the failure of the agent to attach his signapaid, together with his costs. On the same ture could not even have had that effect in day defendant was allowed 60 days in which this instance, because in the bill of lading to file his bill of exceptions, and that in the was a stipulation as follows: "Not negotiameantime execution under the judgment be ble unless shipment be consigned to shipper's suspended. Said bill of exceptions was filed order.” Is this statement correct? This pawith the clerk of said court on the 21st day per purports in the first instance to be a reof June, 1901, and on the 18th day of July, ceipt for the two boxes of household goods. 1901, upon the application of the defendant, Is a receipt that is unsigned a valid receipt? an appeal was granted to the United States It also purports to contain a stipulation of a Court of Appeals for the Indian Territory special contract; but when the same has not by William P. Freeman, clerk of the said been signed by the appellant's agent, and United States Court of Appeals. On the 15th there is no evidence that the plaintiff has ever day of July, 1901, a supersedeas bond was assented to the special stipulation thus set up, executed by the defendant, and the case is it such a contract as would bind either the was thus appealed to this court.
appellant or the appellee? Mattie Patrick, Clifford L. Jackson, for appellant. For
the wife of the appellee, in her deposition intune & Fort and L. D. Horton, for appellee.
troduced in evidence, as shown by the bill of exceptions, states as follows: “The porter
took the goods out of the wagon and put them TOWNSEND, J. (after stating the facts). on the platform of the depot at South Cana. The appellant in this case (the defendant be- dian, and afterward he gave me a bill of low) has filed four specifications of error, lading. I asked the agent to give me a bill which are as follows: (1) The court below of lading. When I first asked him, he said erred in refusing to instruct the jury to re- it was no use; that the goods would come on turn a verdict for the defendant as request- the local behind me. I insisted that he give ed, (2) The court below erred in refusing to me a bill of lading, which he did, and I aftergive the following instructions asked by the ward delivered the same to my husband. defendant: “The court instructs the jury * * * I cannot read or write, but the pathat even if you should find the defendant per which the agent gave me as a bill of ladliable in this case under the other instruc- ing was the one I turned over to Mr. Patrick. tions of the court, then you are further in
The agent did not read the bill of