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W. S. Johnson, Byron Boyden, and James Mayo Palmer, for
the appellant.

Alex Clark, for the appellee.

*^ CRAIG, C. J. The viaduct and its approaches, con-
structed along the south line of Sixty-first street, were about one-
quarter of a mile long, and extended from Wentworth avenue to
State street. The construction of the viaduct opposite the plain-
tiff's land prevented the laying out of any streets south, and
stopped all travel in that direction, while the vacation of that por-
tion of Sixty-first street crossed by the railroad tracks stopped all
travel west, so that the property of plaintiff abutting on Sixty-
first street between the railroad tracks and State street was shut
in, and all access shut off from the south and from the west. By
the construction of the viaduct south of plaintiff's property, and
by closing the street west of the property, and thus stopping all
communication south and west, it is plain that plaintiff's property
was seriously damaged. But it is contended that the damages
she has sustained are not *®® special in their character, but are of
the same kind as those sustained by the general public, and upon
this ground no recoveiy can be had. If the damages sustained



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144 Chicago v. Bubcky. [IllinoiSy

by the plaintiff are of the same kind as those sustained by the
public at large, differing only in degree and not in kind, or if the
damages sustained by the plaintiff are of the same kind sustained
by the general public, the only difference being in the excess of
damages sustained by plaintiff*, then, under the well-settled
rules of law which control cases of this character, she could not
recover: Chicago v. Union etc. Assn., 102 111. 379; 40 Am. Rep.
598; East St. Louis v. O'Flynn, 119 111. 200; 59 Am. Hep. 795;
Parker v. Catholic Bishcp, 146 111. 158.

Where damages are sustained by the public at large, but in dif-
ferent degrees, the law does not confer a remedy. Thus, in
Davis V. County Commrs., 153 Mass. 218, it is said: "The gen-
eral doctrine is familiar, that ordinarily one cannot maintain a
private action for loss or damage which he suffers in common with
the rest of the community — even though his loss may be greater
in degree." The reason for the rule is that a contrary doctrine
would encourage .many trivial suits.

In Shaw v. Boston etc. R. R. Co., 159 Mass. 597, the court say:
"The only right of the plaintiff to use the highway is that of the
public generally. Where one suffers in common with all the pub-
lic, although, from his proximity to the obstructed way or other-
wise, from his more frequent occasion to use it, he may suffer in a
greater degree than others, still he cannot have an action, be-
cause it would cause such a multiphcity of suits as to be of itself
an intolerable evil."

In Smith v. Boston, 7 Cush. 254, in passing on the question, the
court held that a landowner could not recover unless he suffered
a special damage not common to the public.

In Heller v. Atchison etc. R. R. Co., 28 Kan. 625, in the dis-
cussion of the question, the court **^ said: "Where a party
owns a lot which abuts upon that portion of the street vacated, so
that access to the lot is shut off, it is clear that the lotowner is
directly injured and may challenge the action. The closing up
of access to the lot is the direct result of the vacating of the street,
and he, by the loss of access to his lot, suffers an injury which is
not common to the public. But in the case at bar access to plain-
tiff's lots is in no manner interfered with. The full width of the
street in front and on the side is free and undisturbed, and the
only real complaint is, that by vacating the street away from her
lots the course of travel is changed. But this is only an indirect
result."

In the discussion of the question in Cliioago v. Union etc.
Assn., 102 111. 379, 40 Am. Rep. 598, it is said: "In the American



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Oot 1896.] Chicago v. Bubckt. MS

Lftw Begister for October^ 1880^ one of the learned editors of that
periodical, Mr. Edmund H. Bennett, in a note to Frits r. Hobson,
after a very elaborate reyiew of the principal cases bearing upon
the question now before us, comes, as we think very correctly, to
the conclusion: '1. For any act obstructing a public and common
light, no private action will lie for damages of the same kind as
those sustained by the general public, although in a much greater
degree than any other person; 2. An action will lie for peculiar
damages of a different kind, though even in the smallest degree;
3. The damages, if really peculiar, need not always be direct and
immediate, like the loss of a horse, but may be as remote and
consequential as in other cases of tort; 4. The fact that many
others sustain an injury of exactly like kind is not a bar to indi-
vidual actions of many cases of a public nuisance.' **

Other cases holding a like doctrine might be cited, but we have
referred to enough to show the current of authority bearing on
the question. There is less difficulty in determining what the
law is, than in making a proper application of the law to the
different cases that may ^^^ arise. In this case we think it
plain that plaintiff was entitled to recover. Her property fronted
on Sixty-first street. It extended west to and cornered with that
part of the street whi^h was vacated. By the vacation of the street
and the erection of the viaduct, her property, extending from
the railroad tracks east to State street, was shut in, and all access
from the south and the west was shut off. What was originally a
thoroughfare along the entire line of plaintiff's property fronting
on Sixty-first street was, by the action of the town, turned into
a blind court. No other property was damaged or affected in
the same way, except the small tract lying between Wentworth
avenue and the railroad tracks. The property of the general
public was not affected like plaintiff's, nor was the damage sus-
tained by the public of the same kind. Before the action taken
by the town, plaintiff's property fronting on Sixty-first street
was so situated that it was available as lots for business purposes,
but after the action of the town it was rendered useless for that
purpose.

It is also claimed that by making the subdivision and opening
Butterfield street, which separates plaintiff's property from the
vacated portion of Sixty-first street, plaintiff has barred herself
of the right to recover. When the street was closed up and th«
viaduct constructed, the town became liable to pay such damages
as the plaintiff had sustained. The rights of the parties, so far
at the question of damages was concerned, were fixed, and any
AM. ar. Bv.. Vol. xux - 10



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146 Obb 9. Hahoveb Fibi Ihbubahoi Ca [minoia,

future sabdiTision wMch the plaintiff might make of her property
oould not deprive her of a right to recover such damages aa die
had niatained.

From what haa been aaid^ if we are correct, the instracUon
did not announce a correct rule for the determination of the caie^
and it waa properly refused.

The judgment of the appellate court will be affirmed,

STREETS— yACATING-DAMAGES.—WhUe a dty haa power to
▼acmte streeti, it ia liable in damages to abutting property owners aris>
ing from tbe exercise of that power, including loss from depredatioa
in value, and it is no defense to an action for such damasjes that the
owner still has access to his property by another street! Hetnrichv«8t»
Louis, 125 Mo. 424; 46 Am. St. Rep. 490, and extended note.

STREETS— YAOATING—SPEOIAL DAMAGES.— Where a dty
possessing the power vacates one of its streets, the abutting owners
nave been held entitled to damages for the injuries sustained thereb
and, if one of them sustains special injury in excess of that aufiforad I
the community at large, he is entitled to damages therefori **
note to Heinrich t. St. Louis, 46 Am. St. Bep. 486.



Obb v. Hanoyeb Fibb Insubangb Gompavt.

PSB ILUMOIB, 1«.]

insurance. -A VOLUNTARY ASSIGNMENT FOR THE
BENEFIT OF CREDITORS executed in the mode prescribed by sUt>
nte is a breach of a condition in a policy of insurance providing that
if the property or any interest therein be sold or transferred, or
any change takes place, other than by the death of the assured, in
the interest, title, or possession, whether by legal process or judicial
decree, or voluntary transfer l^ the assured, then in such oaae the pol>
icy shall be void.

W. J. Calhoun and H. IL Steely, for the appdlani

Thomas Bates and Lawrence ft Lawrence, for the appeUee.

*"** CRAIG, C. J. This was an action brought by Abner E.
Orr, assignee of W. B. Cauble, against the Hanover Fire Insur*
ance Company, to recover the loss sustained by the burning of a
certain two-story brick business building in the town of Sidellt
in Vermilion county, which was insured against loss by fire in
said company. The policy was issued February 14, 1893, to
W. B. Cauble, to run one year, amount of insurance two thousand
dollars. In the circuit court the parties waived a jury, and on a
trial before tbe court a judgment was entered in &vor of the
plaintiff, which, on appeal to the appellate court, waa reversed
and a remanding order denied.



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Oct 1895.] Obr v. Hanoveb Fi&s Iksuramcs Ca 147

The policy upon which the action was brought contained the
following provision: ^^ the interest of the insured be other than
the entire, unconditional, and sole ownership of the property for
the sole use and benefit of the insured, or if the property be en-
cumbered by any lien, deed of trust, judgment, mortgage, or
otherwise, .... or if the property, or any interest therein, be
sold or transferred, or any change takes place (other than by the
death of the insured) in the interest, title, or possession, whether
by legal process or judicial decree or voluntary transfer by the
aasored, .... then in every such case this policy shall be void."
The policy **■ further provides as follows: 'If the property be-
comes subject to any lien or encumbrance by virtue of any mort-
gage, deed of trust, judgment, or decree, then in every such case
this policy shall be void, unless otherwise provided by agreement
indorsed hereon.''

On the fourth day of August, 1893 — ^five days before the fire—
W. B. Cauble made a voluntary assignment of all his property for
the benefit of creditors, to Abner S. Orr, the person who insti-
tated this suit. The assignee, Orr, on the day the assignment
was executed, took possession thereof until the same was de-
stroyed by fire. Prior to the fire it appears that five judgments,
aggregating fourteen hundred and ninety-seven dollars and
eighteen cents, had been entered against the insured, Cauble, in
the county and circuit courts of Vermilion county, by confer
sion.

The policy, which is the contract between the parties, containj
no ambiguity, and its language is plain and easily understood.
If the insured had sold and conveyed the property by absolute
deed, before the fire, without the knowledge or consent of the in-
surance company, it is plain that, under the terms and conditions
of the policy, no recovery could be had, for the reason the policy
expressly provides that if the property insured be sold or trans-
ferred, or any change takes place in the interest, title, or posses-
sion, the policy shall be void. Here the insured did not make a
sale of the property, as that term is ordinarily understood, but ho
made an assignment, under the statute, for the benefit of cred-
itors, and by deed of assignment, duly executed, he transferred
the property embraced in the policy to an assignee, and the ques-
tion presented is, whether that was such a transfer or change in
the title as would render the policy void.

When an assignment is properly executed, acknowledged, and
recorded, it is well settled that the title of the assignor to the
property, both real and personal, passes to the assignee. In other



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148 OfiB 9. Hanoveb Fibb Inbubancs Co. [lUinoiB,



words, as was said in Preydendall *■■ t. Baldwin, 108 HL
**It is a proposition that needs nothing in its support, if the yoI-
untary assignment made by the failing debtors was yalid, all the
property, real and personal, which they owned at the time, passed
to their assignee under the provisions of the statute/' If there-
fore, the title to the property, under and by virtue of the deed of
assignment, passed from the insured to the assignee, it is plain
there was a change in the title of the property caused by the vol-
imtary act of the insured, and by the plain terms of the policy it
became void.

May on Insurance, section 264, says it is a general principle
that the insured cannot recover unless he has an interest in the
property at the time of the loss, and that an absolute alienation
works a forfeiture, whether so stipulated in the policy or not, if
the property remains out of the insured at the time of the loss;
that a transfer to the assignee, by decree of court, of a bankrupt's
estate, under the bankrupt laws of the United States, upon the
bankrupt's petition, is an alienation. In such case the property
is vested in the assignee, and though the proceedings may be
stayed and the property may revest in the bankrupt, this is a
contingency too remote to be considered the foundation of an in-
surable interest in the bankrupt. And he adds: "And, of course,
a voluntary assignment for the benefit of creditors is equally a
transfer, unless possession be retained by the assignor."

In the case of Dadmun Mfg. Co. v. Worcester Fire Ins. Co., 11
Met. 429, the assured made a general assignment, under the stat-
ute, for the benefit of creditors. Suit was brought by the as-
signee upon a policy of insurance which had been issued to the
assignor, and which provided that "the alienation, in any way, of
any property insured imder this policy shall, ipso facto, make the
policy void, unless notice of the alienation shall be given to the
company and indorsed on the policy.'' In the decision of the
case it is said: "The facts in this case are, that the assured, being
*** embarrassed, assigned their property, including the prem-
ises insured, to Dadmun, Church & Lord, to sell the same and
pay the debts secured by the argument, and the deed of assign-
ment contained only a qualified release of the assignors. This
deed, it is now said by the plaintiffs, was fraudulent and void
against creditors, by force of the statutes of 1836 and 18?8.
However that may be, it does not now lie with the assignors to
aver their fraud in making that deed, in order to avoid the title
made by them under it, and thus be allowed to fall back upon
their former title No notice of the conveyance was given



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Oct 1895.] Obb 9. Hanoybb Fibb Insubamcs Ckx 149

to the defendants^ nor did any assignment of. the policy take
place. This was a yiolation of the tenth role of the defendants^
of which they may avail themselves. It is said that this convey-
ance was in trust, to pay dehts which the property was more than
suflScient to cover; but this fact does not alter the character of the
conveyance nor make it less an alienation*': See, also. Young v.
Eagle Fire Ins. Co., 14 Gray, 160; 74 Am. Dec. 673; Perry t.
Lorillard Fire Ins. Co., 61 K Y. 214; 19 Am. Hep. 272.

But it is said in the argument that the conveyance in this case
was in the nature of a mortgage or trust for the benefit of
creditors, and ^^that there was- no change, in fact, of title, but
only in the evidence of it.*' We do not concur in that view.
Fpon the execution and delivery of the deed of assignment all
the title and interest originally held by the assignor passed from
him to the assignee. His legal interest was gone and the right of
possession was gone. The assignee was clothed with the right
and power to sell and convey the property and distribute the
proceeds among the creditors. After the assignlnent the as-
signor has no more control over the property than he would have
in case of an absolute sale.

In conclusion, we are satisfied the appellate court reached a
eorrect conclusion, and its judgment will be afiSrmed.

INSURANCE-CONDITION AGAINST ALIENATION— ASSIGN-
WENT FOR BENEFIT OF CREDITORS.— Assignment of propertj-
onder voluntary insolvency proceedings is alienation within the provi-
sions of a policy of a mutual insurance company, that "when any prop-
erty insured by this company shall be taken possession of by a mort-
mgee, or in any way be alienated, the policy shall be void": Young v.
£agle etc. Ins. Co., 14 Gray, 160; 74 Am. Deo. 673, and note. An as- .
signroent in bankruptcy or for the benefit of creditors under proceed- '
ings to take the benefit of the bankrupt act, is an alienation within the
naeanin^ of that term in the policy, whether the proceedings be volxin-
tary or involuntary: Extended note to Lane v. Maine etc. Ins. Co., 28
Am. Dec. 168. For an extended discussion of violations on conditions
in policies of insurance against alienation, see the note to Morrison v.
Tennessee etc. Ins. Co., 60 Am. Dec. 304-312.



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150 Wm ff. Qasdinse. £IlliQoi%

Witt v. Gabdinbb,

pM iLUHOn^ 17ft.]

WILLS, ATTESTING IN PRESENCE OP TESTATOR, WHAT
IS,— A will mmy be regarded as attested in the pretence of the testator,
thoQgh the attesiation did not take plaoe in the room in which he
then was, and was not actually seen by him, if it took place within the
range of his yision and might haye been so seen considering his posi-
tion and state of health at the time.

A WILL IS NOT ATTESTED IN THE PRESENCE OF THE
TESTATOR, however close he may be to the witnesses at the time,
if his position is such that he cannot possibly see them sign, or where
his position is such that he cannot readily change it, and the wit-
nesses are out of his sight. The tme test is not whether the testator
saw the witnesses sign, but whether, considering his mental oondition
and his posture at the time, he might have seen them do so.

A WILL IS NOT ATTESTED IN THE PRESENCE OF THE
TESTATOR, though he was physically able to have gotten ont of bed,
if he did not do so, and could not haye done so withoat peril and in
Tiolation of the orders of his attending physician.

Thomas Henshaw and J. M. Biggs, for the appellant.

Henry T. Bainey, for the appellees.

*^ BAILEY, J. This was a bill in chancery, brought by
Freddie T. Witt, by his guardian, against Christopher J.
Ckurdiner and others, to contest the will of Elizabeth Gardiner,
deceased. The will was executed January 23, 1892, and the
testatrix died March 1, 1894, leaving the complainant, her
grandson and only heir at law, and being at the time of her
death the owner and in possession of certain parcels of real
estate, and also owning other property of the aggregate Talue
of several thousand dollars. After the death of the testatrix
the will was filed in the county court for probate, but probate
thereof was there denied. On appeal by the propon^its to the
circuit court a hearing was had de novo, resulting in an order
admitting the will to probate, and the complainant thereupon
filed this bill.

No question is raised by the bill as to the testamentary
capacity of the testatrix, nor is there any charge that the execu-
tion of the will was procured by undue infiuence, the grounds
upon which its validity is called into question being: 1. That
it was not signed by the attesting witnesses in the presence of
the testatrix; and 2. That the testatrix did not know the contents
of the will at the time she executed it.

170 r]^i^e faets appearing from the record are briefly these:
Elizabeth Gardiner, at the time the will was executed, was a
woman about eighty years of age, was partially deaf, and was
then confined to her bed by sickness and under a phyndan'i



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Oct 189&1 Witt v. Gardxnsb. 161

tu% and had been to for about a month. Daring that time
her physician had been Tisiting her twice a day, and her oondi-
tion had required the attendance of watchers each nij^t. On
the day the paper was executed, Chxistopher J. Gtardiner called
upon her, and after having her attendants all leaye the room
held a consoltation with her and then left the honse. Later
the same day he returned, bringing with him the will drawn
vp, and also bringing B. W. Greene and L. L. Boberts to serre
as attesting witnesses. When they entered her room she was
jnfonned that the persons named were there to witness her will,
and to that she assented. Christopher J. Gardiner then pro-
duced the draft of the will, with the testatrix's name already
written at the bottom of it, and she, being propped up on pillows
on her bed for the purpose, executed the instrument by making
her mark, whereupon the two witnesses and Christopher J.
Gardiner left the bedroom, which was situated in the rear of the
northerly part of the house, and went into the front room, situ-
ated on the southerly side of the house, adjoining the bedroom
and communicating with it by a door, which waa left standing
open, and went to a table standing in the front room and there
signed their names to the will as attesting witnesses*

There is very considerable conflict in the evidence as to the
place in the front room where the table was standing when the
will was attested, the testimony of some of the witnesses tending
to show that it was standing near the center of the room — a
place which was within the range of the testatrix's vision as she
▼88 lying on her bed — ^while the testimony of other witnesses
tends to show that it was standing at the east side of the room,
near a window, and where, as much of the testimony tends ^^^
to show, it could not be seen from the place where ihe testatrix
was lying, the partition between the two rooms intervening.

The proponents of the will attempted to show that the attesta-
tion, though made in another room than the one in which the
testatrix was lying at the time, was in fact made in her presence,
by attempting to show: 1. That the table on which the attesta-
ton occurred stood in the center of the front room; or 2. That
even if it stood on the east side of the room, she could have seen
the act of attestation by changing her position and leaning over
out of the bed; or 3. If she could not have seen the act by so
leaning over, it was possible for her to have arisen from her bed
and gone to the door leading to the front room and viewed the
act from that position, and this being true, that the attestation
▼as good without proof that she did get out of her bed andwaw



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152 Witt v. Gardiner, [Illinois,

it. Each of these several positions seems to have been urged
to the jury by the proponents of the will, and evidence was given
tending to show that the testatrix had sufficient strength to have
made it physically possible for her, though very sick, to have
arisen from her bed and gone to the door leading to the
adjoining room. There was no evidence, however, that she in
fact got out of bed or changed her position in the least during
the time the will was being attested.

Such being the evidence, the court, at the instance of the pro-
ponents, gave to the jury, among other instructions, the following:

"25. The court instructs the jury, for the proponents,
that although the jury may believe, from the evidence, that
the attesting witnesses went to an adjoining room to
a table to sign their names as attesting witnesses, and that
the testatrix did not actually see them sign the same, yet if the
jury believe, from all evidence and circumstances proven, that
it was within the physical power of the testatrix to have seen
them sign the same if she had *®^ so desired, then, in law, the
attesting would be in compliance with the law, although the
testatrix may not have actually witnessed the signing of the
names of the witnesses.*'

**10. You are further instructed that if you believe, from the
evidence, that at the time the witnesses signed the will in
evidence the said Elizabeth Gardiner, if she had desired to do
BO, was physically able, by turning her head or changing her
position, to have seen them sign, then you are instructed that
the attestation of the will in evidence was legally accomplished
in the presence of the testatrix, as the law requires."

'^8. The jury are instructed that if you find, from the evi-
dence, that the witnesses signed the will in such a place that
the testatrix could have seen them sign if she so desired, then
you are instructed that the said will was, under the law, attested



Online LibraryAbraham Clark FreemanThe American state reports: containing the cases of general value and ... → online text (page 17 of 121)