BAKER v. DEW et al. (Supreme Court of Tennessee. Nov. 9, 1915.) 1. DESCENT AND DISTRIBUTION 52-WIFE'S PERSONALTY-HUSBAND'S RIGHTS-STAT UTES. Laws 1913, c. 26, entitled "To Remove Disabilities of Coverture from Married Women, and providing that they are fully emancipated from all such disabilities, and that the common law with respect thereto and its effect on the rights of the wife is totally abrogated, that marriage shall not impose any disability on a woman as to the ownership, acquisition, or disposition of property, and that she shall have the same capacity to acquire, hold, manage, control, use, enjoy, and dispose of property as if unmarried, failing expressly, or by necessary implication, to make any disposition of her property after her death, in the event of her failure to dispose of it, her personal property on her death, without such disposition, passes, jure mariti, to her husband, as it would had they, prior to passage of the act, made an antenuptial contract in the terms of the statute, under the law then existing. [Ed. Note.-For other cases, see Descent and Distribution, Cent. Dig. §§ 83, 135-140, 144, 147-149, 151-158, 161-167, 169-171, 296-308; Dec. Dig. 52.] 2. STATUTES 239-CONSTRUCTION-ALTERING COMMON LAW. A statute intended to alter the common law will not be construed to alter it further than it expressly declares or is necessarily implied from the fact of it covering the whole subject-matter. [Ed. Note. For other cases, see Statutes, Cent. Dig. § 320; Dec. Dig. 239.] ty; Will D. Wright, Chancellor. Suit by J. T. Baker against Mrs. R. E. Dew and others. Demurrer to bill was overruled, and defendants appeal. Affirmed and remanded. and therefore it is said the chancellor should have sustained the demurrer and dismissed the bill upon the ground that the act abrogated the marital rights of the husband in the personal property of the wife, and upon her death the above sum passed to her next of kin and heirs at law. The substance of the title of the act of 1913 is "To Remove Disabilities of Coverture from Married Women," and the substance of the body of the act is: That married women are fully emancipated from all disability on account of coverture, and the common law as to the disabilities of married women and its effect on the rights of property of the wife, is totally abrogated. Marriage shall not impose any disability or incapacity on a woman as to the ownership, acquisition, or disposition of property of any sort, or as to her capacity to make contracts and do all acts in reference to property which she could lawfully do if she were not married. Every woman now married, or hereafter to be married, shall have the same capacity to acquire, hold, manage, control, use, enjoy, and dispose of, all property, real and personal, and to make any contract in reference to it, and to bind herself personally, and to sue and be sued with all the rights and incidents thereof, as if she were not married. This act has been considered by us heretofore in three cases. Parlow v. Turner, 178 S. W. 766; Sarah Lillienkamp v. W. T. Rippetoe, and J. G. Bennett et al. v. Jefferson Hutchens et al. The opinions in the two cases last named were delivered at the present term. In Parlow v. Turner, supra, the Appeal from Chancery Court, Knox Coun- wife was the owner of two tracts of land at the time of her marriage, which occurred prior to the passage of the act of 1913. She rented the land to a tenant by the month, the tenant paid the rent to her which accrued after the passage of the act, and upon the suit of the husband, seeking to compel the tenant to pay the same rent again, we held the tenant to be acquitted by the payment to the wife, and the result reached was based on the act of 1913. In Lillienkamp v. Rippetoe, supra, we held that the act did not enable a divorced woman to maintain against her former husband an action for assault and battery committed by him upon her person after the act was passed, and while they sustained towards each other the relationship of husband and wife, and in Bennett v. Hutchens, supra, we held that the act did not abrogate an estate held by the entireties created by deed to husband and wife antedating the passage of the statute. O. L. White, S. R. Maples, Cornick, Frantz & McConnell, Jourolmon & Welcker, and Green, Webb & Tate, all of Knoxville, for appellants. Jesse L. Rogers, of Knoxville, for appellee. BUCHANAN, J. Baker married Miss Clara Dew, a daughter of Mrs. R. E. Dew. The marriage occurred on November 1, 1914, and was dissolved by the death of Clara, on March 30, 1915. The bill in this case was filed by Baker on June 16, 1915, seeking a decree against Mrs. Dew and other defendants for the sum of $1,515.40, averred to be in the hands of Mrs. Dew, as guardian of her daughter Clara. The suit is based upon the ground that the above sum of money in the hands of Mrs. Dew was, at the time of the marriage, the property of Clara, and, upon the death of Clara, became the property of Baker jure mariti. Defendants interposed a demurrer, which the chancellor overruled but allowed an appeal which defendants perfected. [1] The question made by appellants is that the bill shows the marriage and death of Clara Baker to have occurred after chapter 26 of the Acts of 1913 went into effect, Prior to the passage of the act of 1913 the law in this state upon the question of the husband's rights in the personal property of the wife was well settled. In Prewitt v. Bunch, 101 Tenn. (17 Pick.) 723, 50 S. W. 748, it was said: "Personal property in possession, and the possession of the wife in such cases is the possession of the husband, is, in law, the property of a separate property of the wife. Wade v. Canthe husband; nothing else appearing to show trell, 1 Head, 346; Hollingsworth v. Mith (Miller), 5 Sneed, 472; Cox v. Scott, 9 Baxt. 305. The general principle of the common law is that marriage amounts to an absolute gift to the husband of all personal goods of which the wife is actually or beneficially possessed at the time, or which comes to her during coverture. Wade v. Cantrell, 1 Head, 346; Allen v. Walt, 9 Heisk. 242; Joiner v. Franklin, 12 Lea, 422; Handwerker v. Diermeyer, 96 Tenn. 619, 627 [36 S. W. 869]. The common-law rule' that the husband is entitled to receive and reduce to possession, during coverture, all choses in action, whether in the form of notes, debts, or legacies, belonging to the wife at the time of their marriage, or accruing afterwards, prevails in Tennessee. Rice v. McReynolds, 8 Lea, 36, 37. Where money of the wife is in the hands of her guardian, the latter may settle with the husband and pay him the money due. Sanders v. Forgasson, 3 Baxt. 249; Lane v. Farmer, 11 Lea, 568-572. The fact that the wife is a minor at the time of marriage makes no difference, for, upon marriage of a female ward, guardianship ceases. Jones v. Ward, 10 Yerg. 168. From that time the husband becomes clothed with the right to demand, receive, and sue for the distributive share of his wife in her father's estate, or for any funds in the hands of the guardian. The guardian might settle with him and pay him the money due the wife. Lane v. Farmer, 11 Lea, 568-572. It is also well settled that if, for any reason short of abandonment of these fixed and vested rights by the husband, the wife dies before reduction to possession, the choses in action go to the husband, and whether this be as next of kin or jure mariti is immaterial. Williams on Exec. 242; 2 Kent Com. 137; Hamrico v. Laird, 10 Yerg. 222; Tune v. Cooper, 4 Sneed, 296." See, also, on the same subject, D'Arcy v. Mutual Life Ins. Co., 108 Tenn. (24 Pick.) 567, 69 S. W. 768; Shugart v. Shugart, 111 Tenn. (3 Cates) 179-183, 76 S. W. 821, 102 Am. St. Rep. 777; Williford v. Phelan, 120 Tenn. (12 Cates) 589-596, and authorities cited; Mitchell v. Bank, 126 Tenn. (18 Cates) 669, 150 S. W. 1141. In Prewitt v. Bunch, supra, the equity of the wife to a settlement, who died without issue (as did the wife in the present case), was held to be no bar to the suit of the husband brought after the death of the wife, and the holding in that case was mainly put on the ground that if the husband had sued during the life of the wife, and a settlement had been decreed to her, it would only have been for the life of the wife, with remainder to the husband, she leaving no issue. In one of our cases, speaking of the marital right of the husband, it was said: "If there be a marriage contract whereby this right is abridged, it is taken away only to the extent stipulated in the settlement. When the settlement makes no disposition of the property, in the event of the wife's death, and provides only for her dominion over it during coverture, the right of the husband as survivor is a fixed and stable right over which the court has no control, and of which he cannot be divested." The language of the contract in that case was: "That the negroes and their future increase are to be and remain the property of the said Elizabeth, and subject to her control and disposal forever." The court admitted that the words of the contract-especially in connection with the word "forever"-were appropriate to the erty, but held, nevertheless, that they were used to express the quantity of the estate and the character of the dominion, which the wife was empowered to exercise over the property; the word "forever" was held to be limited by the context to a control and disposal of the property during the coverture of the wife. She did not exercise the right of disposal during her life, and it was held that the husband's marital right which had been abridged by the contract during coverture attached to the property at her death. Brown's Adm'r v. Brown's Adm'r, 25 Tenn. (6 Humph.) 126, 127. On the other hand, in another case, the contracting husband had bound himself, his heirs, etc., "to relinquish, and does relinquish, all claims he has, or ever could have, to the property or money so purchased, either in law or equity, that he might acquire by marrying or becoming the husband of the said Sarah." menting on the effect of this part of the contract, the court said: In com So here the marital right of the husband was held to be extinguished by his contract. Hamrico v. Laird, 18 Tenn. (10 Yerg.) 222. The principle established by these cases and others was recognized and applied in Mitchell v. Bank, 126 Tenn. (18 Cates) 669, 672, 150 S. W. 1141, and it was there pointed out that the creation of a separate estate in personalty, unless words were used indicating clearly an intention to cut off after coverture the husband's rights jure mariti, would merely have the effect to suspend them during the period of coverture, and they would attach again, at the death of the wife, to the property in which her separate estate had been created. [2] In the light of the law, as we have reviewed it above, we must determine what change was made by the act of 1913, so far as the rights of the parties to this suit are concerned. It is significant that neither expressly nor by necessary implication does that statute undertake to make any disposition of the property of the wife after her death in the event of her failure to exercise any of the powers conferred on her by the statute. What is the necessary result? We think there can be but one, and it is the devolution of such of her property as she had not disposed of during life, according to the rule of the common law left unchanged by the act. In other words, the property passes jure mariti to her husband, exactly as it would have done had the husband made an antenuptial contract in the terms of the statute prior to the passage of the act under the law as it then existed. We have seen that should arrive. Manifestly, the Legislature knew of the existence of the marital rights of the husband in the property of the wife when it passed the act of 1913, and, if its purpose had been not only to abridge but to totally abrogate those rights, we think that purpose would have been made to appear either by the express terms of the act, or by necessary implication, considering it as an entire piece of legislation; and, as no such purpose appears, we may well assume that the body which passed the act intended to confer on the wife the power to determine by her own acts during life and coverture whether her property should, on her death, pass to her husband jure mariti, or to her next of kin and heirs at law, or to some other beneficiary on whom she might see fit to bestow it. Our rule for the construction of statutes intended to alter the common law is that a statute will not be construed to alter the common law further than the act expressly declares, or than is necessarily implied from the fact that the act covers the whole subject-matter. State v. Cooper, 120 Tenn. (12 Cates) 549, 113 S. W. 1048, 15 Ann. Cas. 1116. This rule is well supported by the weight of authority, as may be seen by reference to the cases cited in Sarah Lillienkamp v. W. T. Rippetoe and J. C. Bennett et al. v. Jefferson Hutchens et al. We think the act of 1913 does not cover the subject of the marital rights of the husband in the personal property of the wife, after her death, where she has failed to make provision as to how it shall go on the happening of that event. been to abridge the marital rights of the husband in the personal property of the wife during coverture, and that at her death his marital rights would again attach, and the property would pass to him thereunder; so in the present case we think it must be under the statute. It cannot be material that the wife in this case was under the age of 21 years, at the time of marriage and during the period thereof. The law makes no exception in such a case. In opposition to the views we have expressed, the brief for appellants insists that the act totally abrogates the common law in respect of the marital rights of the husband. But there are no words of the statute which expressly so declare, and considering it as a whole we do not think such result follows by necessary implication. We think that the words "totally abrogated," in section 1 of the act, are limited by the context in which they are used, and their effect is to manifest a legislative purpose so as to free the wife from the disabilities which the common law imposes on her as the result of marriage that she may enjoy during coverture all rights "as to the ownership, acquisition, or disposition of property of any sort, or as to her capacity to make contracts and do all acts in reference to property which she could lawfully do if she were not married." Construed as we have held this act should be, its provisions clearly fall short of the effect of the marriage contract in Hamrico v. Laird, supra, and in Loftus v. Penn, 31 Tenn. (1 Swan) 445. Each of those contracts was held to look to a period of time beyond the coverture, and death of the wife, and to bind the husband and his representatives to refrain from setting up claim to the property of the wife jure mariti, when that period of time to We find no error in the decree of the chancellor, and the same is therefore affirmed, at appellants' cost, and the cause is remanded for further proceedings. ST. LOUIS, I. M. & S. R. CO. v. FREEMAN. KIRTLEY & GULLEY v. ST. LOUIS, I. M. & S. R. CO. (No. 173.) (Supreme Court of Arkansas. Oct. 18, 1915.) 1. ATTORNEY AND CLIENT 172-COMPROMISE OF ACTION BY LITIGANTS-RIGHT OF ATTORNEY-STATUTE-REPEAL. Where, by contract with their client, a law firm was to receive 50 per cent. of any amount derived from recovery or compromise of an action against a railroad company, a settlement for $25 between the railroad and the client with out the consent of the firm entitled the firm to a judgment against the railroad of $12.50 under the act of May 31, 1909 (Laws 1909, p. 892), creating a lien in favor of the attorney upon his client's cause of action for the amount of his fee, and did not entitle them to a reasonable fee, since Kirby's Dig. § 4457, giving a cause of action to the attorney representing the party who receives a consideration in a compromise between the litigants, a right of action against both litigants for a reasonable fee, was repealed by the act of May 31, 1909, creating a lien in favor of an attorney upon his client's cause of action which attaches to a judgment in his client's favor and the proceeds thereof. [Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. § 384; Dec. Dig. 172.] Where a statute is adopted from another state after being construed by the courts thereof, such construction will be adopted, if not in conflict with the settled policy of the state adopting the statute. for Kirtley & Gulley in the sum of $50, from which judgment the Railroad Company appeals. Judgment modified to reduce recovery to $12.50, and affirmed. E. B. Kinsworthy and W. G. Riddick, both of Little Rock, for appellant. Hal. L. Norwood, of Little Rock, for appellee. KIRBY, J. [1] This appeal involves the construction of our statute relating to attorney's fees of April 4, 1899 (section 4457, Kirby's Digest), and of Act 293 of the Acts of General Assembly of 1909; it being insisted by appellee that the act of 1899 is repealed by the later one. Said section 4457 provides for the sale of a judgment, or any part thereof, of a court of record, or the sale of any cause of action or interest therein after suit has been filed thereon, which shall be evidenced by a written transfer, which, when acknowledged and filed and noted as provided, shall be full notice and valid, and binding upon all persons subsequently dealing with reference to said cause of action or judgment, and also: "In case the plaintiff and defendant compro2. STATUTES 226-CONSTRUCTION-STAT- mise any suit for liquidated or unliquidated UTES ADOPTED FROM ANOTHER STATE. damages or any other cause of action after same is filed, where the fees or any part thereof to be paid to the attorney for plaintiff or defendant are contingent, the attorney for the party plaintiff or defendant receiving a consideration for said compromise, shall have a right of action against both plaintiff and defendant for a reasonable fee, to be fixed by the court or jury trying the case." [Ed. Note.-For other cases, see Statutes, Cent. Dig. § 307; Dec. Dig. 226.] 3. ATTORNEY AND CLIENT 150-COMPROMISE BY CLIENT CONTINGENT FEE AMOUNT RECOVERABLE. An attorney, after compromise by his client in good faith of a claim upon which suit has been brought, is bound by the terms of his contract for the amount of his contingent fee, and is entitled only to such per cent. of the amount realized from the settlement as is fixed by his contract. Said act of May 31, 1909, provides: "The compensation of an attorney or counsellor at law for his services is governed by agreement, express or implied, which is not restrained by law. From the commencement of an action or special proceeding, or the service of an answer containing a counterclaim, the attorney who appears for a party has a lien upon his client's cause of action, claim or counterclaim, which attaches to a verdict, report, decision, [Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. §§ 354-357; Dec. Dig. judgment or final order in his client's favor and 150.] the proceeds thereof in whosoever hands they may come; and the lien cannot be affected by any settlement between the parties before or after judgment or final order." No question has heretofore been raised of the repeal of the first statute which has been construed and applied in Fordyce v. McPhetrige, 71 Ark. 327, 73 S. W. 1096; K. C. Ft. Scott & Memphis Ry. Co. v. Joslin, 74 Ark. 552, 86 S. W. 435; Rachels v. Doniphan Lum Appeal from Circuit Court, Pulaski Coun- ber Co., 98 Ark. 529, 136 S. W. 658; Adamty; Guy Fulk, Judge. son v. Kay, 100 Ark. 248, 140 S. W. 13, and Hall v. Huff, 169 S. W. 792. [2] The latter statute is a borrowed one, coming from New York, after it had been construed by the courts of that state, and the rule is that the construction of a borrowed statute is adopted with it, unless contrary to the settled policy of the state adopting the statute. McNutt v. McNutt, 78 Ark. 346, 95 S. W. 778; Nebraska Nat. Bank v. Walsh, 68 Ark. 433, 59 S. W. 952, 82 Am. St. Rep. Action by Frank Freeman against the St. Louis, Iron Mountain & Southern Railway Company in the Pulaski circuit court for personal injuries, wherein Kirtley & Gulley filed a petition for a reasonable fee as attorneys for plaintiff, as against the Railroad Company for a wrongful settlement. With this was consolidated a suit by Kirtley & Gulley against the Railroad Company in a justice of the peace court, and appealed to the Pulaski Circuit Court by the Railroad. 301. There was a trial by the court, and judgment In Fischer-Hansen v. Brooklyn Heights Ry., 173 N. Y. 492, 66 N. E. 395, the court | tion of an attorney, in the collection of his held that the statute gave an attorney a lien fee or compensation for services, from the upon his client's claim and cause of action beginning of the suit, in accordance with his upon the commencement of the action, which contract therefor, according to the construcextended to the proceeds realized, whether tion placed upon the statute in the state upon settlement or judgment, but that it gave from which it came. Witmark v. Perley, 43 the attorney no right to control the litigation Misc. Rep. 14, 86 N. Y. Supp. 756; Oishei and prevent a settlement thereof. It was v. Metropolitan St. R. Co., 110 App. Div. 709, there said: 97 N. Y. Supp. 447; Goldstein v. Nassau Ry. Co., 157 App. Div. 226, 141 N. Y. Supp. 805. "A cause of action is not the property of the attorney, but of the client. The attorney owns no part of it, for a lien does not give a right to property, but a charge upon it. As it is merely incidental and for the purpose of security only, it would not be reasonable to hold that the Legislature intended that it should be the means of blocking an honest and genuine adjustment of controversies. We think the lien is subject to the right of the client to settle in good faith, without regard to the wish of the attorney. * **The right of the parties to thus settle is absolute, and the settlement determines the cause of action and liquidates the claim. This necessarily involves the reciprocal right of the attorney to follow the proceeds of the settlement, and, if they have been paid over to the client, to insist that his share be ascertained and paid to him; for the defendant is estopped from saying that with notice of the lien he parted with the entire fund." In St. Louis, I. M. & S. R. Co. v. Blaylock, 175 S. W. 1170, this court held likewise that the lien given by the statute did not give the attorney an interest in the cause of action itself or control over it, saying: "The parties to the litigation must necessarily control the proceedings affecting their respective interests until the lawsuit is ended. The attorney, under the statutes, has a lien for his fee which cannot be defeated by any settlement of the parties litigant before or after judgment or final order. The attorney has no right to compel his client to continue litigation. A client may dismiss his cause of action or may settle with the opposite party without consulting his attorney, but, where there are any proceeds resulting from the litigation, either through settlement or compromise, or as the final result of the prosecution of the lawsuit to the end, the attorney has a lien on such proceeds of which he cannot be deprived by the parties to the lawsuit by any settlement they may make." This statute provides that the compensation of an attorney for his services is governed by agreement, express or implied, which is not restrained by law, and gives him a lien from the commencement of an action or special proceeding or the filing of an answer and counterclaim upon the cause of action, which attaches to any proceeds realized out of such claim or cause of action resulting from the litigation, either through a settlement, compromise, or judgment, and of which he cannot be deprived by the parties to the action by any settlement they may make. Under the former statute, the attorney was remitted to his claim for a reasonable fee against both parties to the litigation in case of a settlement thereof without his consent; the amount of the fee to be determined upon proof of the services performed. Rachels v. Doniphan Lumber Co., supra. The later statute is in conflict with the other, and provides a remedy for the protec [3, 4] The attorney, after the compromise or settlement in good faith by his client of a claim upon which suit has been brought, is bound by the terms of his contract for the amount of his fee, and only entitled to that per cent. of the amount realized from the settlement or judgment fixed by his contract. Fischer-Hansen v. Brooklyn Heights Ry. Co., supra; Stephens v. Railway Co., 157 Mo. App. 656, 904. In this case the attorneys agreed to perform the services in bringing the suit in the collection of the claim for 50 per cent. of whatever might be realized therefrom, by settlement or otherwise, and, their client having settled the claim, as he had the right to do, without their consent, or over their objection for that matter, the railway company effecting such settlement was only bound to them for the discharge of their claim in the sum of 50 per cent. of whatever amount they paid in settlement of the claim. It is undisputed that the claim was settled for $25, and therefore the attorneys were only entitled to judgment against the railroad for 50 per cent. of that sum, or $12.50. The judgment is reduced to that amount, and, as modified, will be affirmed. It is so ordered. WESTERN UNION TELEGRAPH CO. v. (Supreme Court of Arkansas. Oct. 25, 1915.) instructions requested, if the matters contained There is no error, where the court refuses in the refused instructions were embraced in other instructions given. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 651-659; Dec. Dig. 260.] 2. TELEGRAPHS_AND TELEPHONES 54 NEGLIGENCE-LIMITATION OF LIABILITY. Where the contract between a telegraph company and the sender of a message limits the liability of the company to $50, the sender suing for negligent failure to deliver the telegram can recover nothing in excess of the $50. [Ed. Note.-For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 39-47; Dec. Dig. mm 54.] Appeal from Circuit Court, Lonoke County; Eugene Lankford, Judge. Action by A. B. Brooks against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Affirmed in part. |