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Hart et al., executors, vs. Hart.

was conflicting upon these issues between the parties, she testifying that she had sufficient cause to leave on account of their conduct towards her, and they testifying to the contrary. The witnesses for both sides were before the jury. It was the province of the jury to judge of their credibility. They could see their manner and tone, and could judge of their bias and prejudice; and as they saw proper to believe the witnesses for the plaintitt, we will not interfere with their finding.

2. The next complaint is, that the court refused to give the following charge, as requested: “If plaintiff was kindly treated at the house of defendants and left there to visit her daughter of her own accord and without fault on the part of the defendants, and if defendants were at all times ready and willing to maintain her at their house and offered to do so, then plaintiff is not entitled to recover for board.” The complaint is, that the trial judge struck out the word “board,” and inserted in lieu thereof the words “lodging and use of house and furniture offered her by defendants,” and then gave the request as altered.

There was no error in the alteration of this request to charge. The theory of the defendants throughout the trial, as disclosed by the record, seems to have been that this widow, their step-mother, was compelled, under the will, to live in the two rooms of the house described in the will, and that if she left there she forfeited her rights under the will. We do not think that this was a proper construction of this item of the will. Under the will, she was entitled to the use and occupation of two rooms of that house. We do not think it compelled her to live there. If she did not choose to remain in these rooms pointed out in the will, we think she was entitled to go elsewhere, and that she did not thereby forfeit her interest under the will. The will charges these sons and

Hart et al., executors, 18. Hart.

executors with "a decent support” for her, regardless of where she may reside. She was not compelled by the terms of the will to reside with the family of either of these executors, nor to eat at their table. Under this item of the will, she could set up an independent establishment, and she would be entitled to a “decent support” in accordance with her position in society at the time of the death of the testator, her husband, or at least she would have been entitled to money enough to have rented two rooms in some other locality, and money enough to purchase suitable clothing and provisions for one in her station in life.

We think also that, under this item of the will, she was entitled to have her medical bills paid, and bills for care and attention to her during her sickness; and she was entitled to those things, in our opinion, whether she resided in rooms set apart for her in the will or not; and under this item of the will, she was entitled to a horse and buggy, and if the horse which the testator left her in the will had died, or had been sold under execution against her for her medical bills, she was entitled to another. Of course, if she was entitled to a horse, she was entitled to provender for the horse. This will dispose also of the complaint made in the 5th ground of the motion, and its subdivision.

3. Nor was there any error in refusing to give the charge as complained of in the 4th ground of the motion. This request was based upon the theory that the obligation to support the widow was placed by the will upon the defendants in consideration of the lands devised to them by the testator, and the testator having sold the land so devised in his lifetime, the same did not pass to the defendants under the will, and they were relieved, therefore, from the burden placed upon them by the will. There is nothing in the will, nor in

Hart et al., executors, l'8. Hart.

the evidence, to authorize this construction. The will does not place the obligation to support this widow upon the devise to them of the lands; it expressly states that this obligation was imposed in consideration of what the testator had done for them. While it is true that subsequent to the making of the will the testator sold the land to them, he did not thereby revoke this bequest to his wife. As the evidence shows that they accepted this trust and received other bequests under the will besides the land, they will not be allowed to say that they are not liable to carry out that part of the will which gives a support to the widow.

4. The sixth ground complains of the exclusion by the court of a certain contract made between the testator and his two sons after the execution of the will, in which contract it is set out that they had bought the land devised to them in the will, and were to pay a certain price therefor, and that they obligated themselves to allow the testator and his wife to occupy the two rooms mentioned in the will as long as they should live, and to furnish them with board and reasonable clothing, and pay their doctors' bills. There was no error in excluding this contract from the consideration of the jury. As we have before remarked, the selling of this land by the testator to his sons, and the contract signed by them, did not revoke this bequest to the wife, and if the contract had been in evidence, she would still have been entitled to her rights under the will. She could, if she had thought proper, have brought her suit upon this contract. She had rights both under the will and this contract; but she elected to claim her rights under the will. This contract, if it had been introduced in evidence, would not have benefited either party.

Judgment affirmed.

Haas vs. The Kansas City, Fort Scott and Gulf Railroad Company.

Haas vs. The Kansas City, FORT SCOTT AND GULF RAIL

ROAD COMPANY.

1. Where a railroad company receives freight for shipment, and its

employés strike or cease to work for the company, it is still bound to forward the freight within a reasonable time; but if the strike is accompanied with violence and intimidation, so as to render it unsafe to forward the freight, the company is thereby relieved from liability for delay, especially when the resistance made by the strikers is of such a character as could not be overcome by the com

pany, or controlled by the civil authorities when called upon by it. 2. If the proceeds of flour sold when it did arrive, although unusually

delayed in arriving, were sufficient to pay the amount of the draft advanced by plaintiff upon the faith of its shipment, he could not recover in this action. Profits he anticipated making at the time he made the advance could not be recovered by him from the rail

road company. 3. The bill of lading for the flour not having been indorsed to plaintiff

by the party in whose favor it was issued, the former could not

maintain an action against the company upon it. (a) Even if there had been such indorsement, a bill of lading is not

such a negotiable instrument as to give to the assignee any other or greater rights than the assignor had; and the assignor having received the bill of lading with the knowledge that the flour was not at the time on the line of road of defendant, but on the line of a connecting road, he could not have recovered damages for delay in its delivery, if the connecting road was prevented from forwarding

it by an armed mob. (6) It is too late, after a case has been argued and after the court has

spent hours in its investigation, to suggest mistakes in the record ; such suggestions should be made on or before the calling of the

case.

October 10, 1888.

Railroads. Strikes.

Damages. Profits. Bills of lading. Indorsement. Negotiable instruments. Assignment. Practice. Before Judge Van Epps. City court of Atlanta. March term, 1888.

Reported in the decision.

WEIL & BRANDT, for plaintiff.

Haas vs. The Kansas City, Fort Scott and Gulf Railroad Company.

CALHOUN, KING & SPALDING, for defendant.

SIMMONS, Justice.

The only question argued before us in this case was, whether the verdict was contrary to the evidence or not. We have carefully examined the evidence sent up in the record, and we think that the verdict was right.

The plaintiff brought suit by attachment upon a contract or bill of lading, made by the defendant in Kansas City, whereby the defendant agreed with one Ayres to ship a certain quantity of flour from that place to Atlanta, Georgia, to the order of Ayres. Ayres, it seems, drew a draft on Haas, the plaintiff, and attached theret: the bill of lading. The amount of the draft, the date when drawn, and the time when Haas received it and accepted it, are not stated in the evidence. Haas testified that the flour ought to have arrived in Atlanta from Kansas City in from seven to ten days from the time of shipment. Instead of so arriving, it did not arrive until about a month after the date of the bill of lading, and by reason of this delay, Haas testified that he lost $163.00; that the price of flour between the date of the bill of lading and the time of its arrival had decreased so as to produce this loss. The defence of the railroad company was, that the delay in the shipment of the flour arose by reason of a strike of the operatives on one of its connecting lines, from which connecting line it was to receive the flour. The evidence shows that the employés of that railroad company had struck for higher wages, and had ceased to work for the railroad company; that they had refused to work, and by violence prevented other employés from working for the company. The evidence shows that, after the company had succeeded in employing new hands, obstructions were put upon

the tracks and trains derailed and bridges burned,

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