author: Mr. Justice Magrudeb

text:
    The Northwestern Benevolent and Mutual Aid Association v. Mary A. Hall.

      Filed at Springfield October 6, 1886.

    1. Pbaotice—propositions of law—on trial by the court without a jury. Where there is a trial before the court, without a jury, in order to present a, question of law to this court as having been passed upon by the court below, the party should submit propositions of law to the trial court, as provided for in section 42 of the Practice act.
    2. Evidence—relevancy—in suit on life insurance certificate—as to use of alcoholic liquors by the assured. In an action upon a certificate in the nature of a policy of life insurance, where the application of the assured. showed that he drank no alcoholic liquors at all, and the validity of the policy •depended upon the truth or falsity of the representations in such application, a medical expert of the association issuing the certificate was asked whether the application would have been favorably passed upon if it had shown that the applicant drank liquor, to which the court sustained an objection: Held, that the question was properly disallowed, the real issue being whether the statements in the application were true or false.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit dourt of McLean county; the Hon. O. T. Beeves, Judge, presiding.
    Messrs. McNulta & Weldon, and Mr. Hamilton Spencer, for the appellant:
    The validity of this contract depended upon the truth of the warranty. The materiality to the risk of whether the assured did or did not get drunk, did or did not use alcoholic stimulants, or the good or bad faith of the assured in making the statement.warranted to be true, is of no consequence. The engagement of the assured is absolute—that he never did get drunk, that he did not drink at all. The facts being that he did get drunk, that he did drink, the certificate is void. Life Ins. Co. v. France, 91 U. S. 510; Jeffries v. Life Ins. Co. 22 Wall. 52; Hartman v. Insurance Co. 21 Pa. St. 466.
    Because the court excluded the testimony of Dr. Lambert, the medical expert, offered to show the materiality of the answers of the applicant, and that under the practice and common course and rules of business of the company, with different answers the application would have been rejected. Hartman v. Insurance Co. 21 Pa. St. 471.
    Messrs. Tipton & Beaver, for the appellee:
    That the opinions of the medical expert were not admissible, see Rawls v. Life Ins. Co. 27 N. Y. 293; Insurance Co. v. Cotheal, 7 Wend. 72; Davell v. Bederly, 1 Holt, 283; Life Ins. Co. v. Worthington, 10 Kan. 532; 3 Eng. C. L. 119; 27 id. 27; Campbell v. Richards, 5 Barn. & Ad. 480.
   Mr. Justice Magrudeb

delivered the opinion of the Court:

This is an action of assumpsit, brought by appellee, who is the widow of one Benjamin T. Hall, deceased, against appellant, in the circuit court of McLean county, upon a certificate of membership in appellant company, bearing date September 27, 1884, for the sum of $2000, issued to the said Benjamin T. Hall. The circuit court, after a trial of the cause, by agreement, without a jury, rendered judgment, in favor of appellee, for $2000 and costs. This judgment, upon appeal, has been affirmed by the Appellate Court for the Third District, and appellant company prosecutes its further appeal to this court.

The certificate in question was, in effect, a policy of insurance upon the life of the deceased Hall. It certifies, that he is entitled to all the rights and privileges of membership in appellant company and to participate in the beneficiary or relief fund of the association, to the amount of $2000, “which sum or such part thereof as may be collected, as specified in the constitution and by-laws of the association, shall, within sixty days after his death, be paid to his wife, Mary J. Hall. ” It also recites, that it is issued upon condition, that Hall “shall comply with the constitution and by-laws of the association, and that the statements in the application for this certificate are true.” Hall died December 4, 1884, and proofs of death were made by January 2, 1885".

The application, referred to, which was signed by Hall, contained, among others, the following questions and answers: “Q. Has your general health been uniformly good for the past ten years ?—A. Tes.—Q. Do you use alcoholic or other stimulants?—A. No.—Q. If so, do you drink regularly?— A. Not at all—Q. Do you ever get drunk?—A. No.” In the application, Hall agreed, that such “application and declaration” should be the basis of the contract between him and the association, “and that, if any misrepresentation or fraudulent or untrue answers have been made, or any facts, which should have been stated, have been suppressed, if death should result from suicide, etc., ” then the agreement should be void, and the moneys paid should be forfeited. He, also, therein declared, that he had made'full and correct answers to all the questions, and warranted such answers to be true and complete statements of all material facts within his knowledge, and agreed, that, if he should at any time impair his health by immoral practices, or the excessive use of alcoholic stimulants or narcotics, the contract should be void.

Upon the issues, made in the ease, the questions presented for the decision of the trial court, were purely questions of fact. They were, first, was the condition of health of the insured uniformly good for the space of ten years next before his application for membership ? Second, were the habits of the deceased, as to the use of alcoholic liquors, such as to amount to a breach of his contract ? Third, did the deceased commit suicide? The appellant company sought tó show, that Hall poisoned himself by taking strychnine. There was no positive proof, that he had taken such a poison. There was proof, tending to show, that the pains in his head, of which he complained, and the spasms, which immediately preceded his death, may have been caused by some other disease, not the result of strychnia poison. It is not claimed, that there was any examination of his stomach by a chemist after his decease, and the expert testimony tends to show, that such an examination was the only absolutely certain test of the presence of strychnia.

The questions of fact, so presented to the circuit court, were decided against appellant. As the Appellate Court has affirmed the judgment of the circuit court, it must, of necessity, have found, that the evidence sustained the judgment of the trial court. Such finding is conclusive upon us. (Germania Fire Ins. Co. v. McKee, 94 Ill. 498.) The appellant did not, as it had a right to do, under the 42d section of the Practice act, submit to the trial'court “written propositions to be held as law in the decision of the case. ” Where there is a trial before the court without a jury, in order to present a question of law to this court, as having been passed upon by the court below, the party should submit propositions of law to the trial court, as provided for in the section, referred to. (Tibballs v. Libby, 97 Ill. 552; Hobbs v. Ferguson's Estate, 100 id. 232.) As this was not done, there is nothing for us to consider, except the point hereafter stated.

A physician, who was the medical expert of appellant, was asked several questions, to which objection was made and sustained. They were, in substance, whether Hall’s application for membership in the association would have been favorably passed upon, if it had been stated in such application, that he drank liquor. We think, that the objections to these questions were properly sustained. The real issue was, whether the statements, made in the application, were true or false. What would have been the effect, if some different statement from that, therein contained, had been made to the association, was of no consequence. The witness might give his opinion on a matter of science, connected with his profession, but he could not be allowed-to state his views of the manner, in which others would probably be influenced, if certain specified facts existed. Testimony, called for by questions of a similar character, has been held to be improper in the following cases: Washington Life Ins. Co. v. Haney, 10 Kan. 525; Rawls v. American Mutual Life Ins. Co. 27 N. Y. 282; Durrell v. Bederly, 1 Holt, 283; Campbell v. Rickards, 5 Barn. & Adolph. 840.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Mulkey

license: Public Domain

text:
    Citizens’ Gas Light and Heating Company v. Nora O’Brien.

      Filed at Springfield October 6, 1886.

      1. Hegugencb—master and servant—exposing the latter to poisonous gases—liability of the master. Where a gas company, by negligence, permits the escape of poisonous gases into a room not properly arranged so as to let it pass out, and knows of such escape and the danger of inhaling the same, and either the company, or its superintendent, duly authorized to-employ and discharge, manage, direct and control its employes or workmen, orders a servant to do certain work in such room, and the servant, in obedience to such order, without knowledge of the danger to which he is exposed, and without fault or negligence on his part, undertakes to do the work, and is overcome by the gas so escaping, whereby he falls and receives an injuryr from which he dies, the company will become liable to the personal representative of such deceased servant, in damages, for his death.
    2. Same—question of proper care on the part of the person injured—of an instruction on that subject. In such case, on the trial of a suit brought. by the administrator of the deceased servant, the court instructed the jury, that if they believed, from the evidence, that the defendant company and its-superintendent had knowledge of the danger of the service required, and that the servant, without such knowledge, or any fault or negligence, but in obeying the order of the superintendent, inhaled said gas, which caused his death, to find for the plaintiff: Held, that while the use of the disjunctive “or,” was not grammatical or proper, it was not such an error as to call for a. reversal, especially where the instructions, as a whole, were more favorable to the defendant than it could ask.
    3. Same—contributory negligence—of an instruction, as introducing-an element not belonging to that question. In an action of that character, where it became a question whether the servant’s negligence did not contribute to his death, the court was asked to instruct the jury, that if they believed, from the evidence, that the deceased, at the time he started to go up to the place he was required to work, was told by a witness not to go the way he did, but to take a long ladder and go on it, and that deceased refused to do so, and in consequence thereof came to his death, they should find for the defendant: Held, that the instruction was properly refused, as being calculated to leave the impression that the refusal to take the ladder was of itself' evidence of negligence, whereas it had nothing to do with the question.
    4. Where the turning point in the case was whether the fall of the deceased from the place to which he was ordered to go, was caused by his inhaling' the poisonous gases escaping from the works, or whether it was accidental,. the death being directly caused by the fall, it is not proper; in an instruction, •to divert the minds of the jury from such main issue, by directing them to consider the manner in which the deceased reached the place from which he fell. If the fall was caused by the breathing of the gas, it is not material how the deceased made his ascent,—whether by a ladder, or by climbing part of the way.
    5. Evidence—to show the place of an accident and surroundings. On the trial of an action against a gas company to recover damages for negligence resulting in the death of the plaintiff’s intestate, by breathing poisonous gases negligently allowed to escape in the room where the deceased, as a servant of the company, was put to work, it was held, not error, but proper, to show, by a witness, the place of the accident, with all its surroundings, including the location of the smoke-stack which was used in generating "the gas.
    6. Same—to show qualification of an expert witness and his personal experience. Where an expert witness is called to testify as to the kind and quality of gases produced from the combustion of hard coal, and their effect upon the human system, and has shown his knowledge as a student and teacher of chemistry, it is eminently proper to ask him what experience he has had with such gases, and if in answer he gives a practical illustration of a part of his general knowledge and experience on the subject, there will be no error.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of McLean county; the Hon. 0. T. Beeves, Judge, presiding.
    Messrs. Kerrick, Lucas & Spencer, for the appellant:
    It was error to permit Dr. Mason either to give his personal experience or observation in a case not related to the one at bar, even though similar. Rogers on Expert Testimony, sec. 30; 1 Greenleaf on Evidence, sec. 448; Clark v. Willett, 35 Cal. 534; Railroad Co. v. Pearson, 35 id. 247; Horne v. Williams, 12 Ind. 324; Emerson v. Gaslight Co. 6 Allen, 146; Clark v. Bruce, 19 Hun, 274.
    The second of appellee’s instructions is erroneous, as containing a direct assumption that O’Brien was ordered to go where his life and safety would be endangered. In such a case great care should be taken to instruct accurately. Warren v. Wright, 6 Bradw. 602; Chicago v. Bixby, 84 Ill. 83; Russell v. Minteer, 83 id. 150.

      Where there is a question as to whether the deceased was guilty of negligence or not, an instruction which directs the jury, if they believe certain facts, to find for the plaintiff, without containing the requirement of any degree of card on the part of the deceased, is erroneous. Schmidt v. Railroad Co. 83 Ill. 405; Railroad Co. v. Hetherington, 83 id. 510; Railroad Co. v. Mock, 72 id. 141.
    And this is so, even though other instructions contain a correct exposition of the law. Railroad Co. v. Payne, 49 Ill. 499; Railroad Co. v. Murray, 62 id. 326 ; Baldwin v. Killian, 63 id. 550 ; Railroad Co. v. Maffit, 67 id. 431; Village of Warren v. Wright, 3 Bradw. 602.
    The use of the word “fault, ” being in the disjunctive, was also erroneous. Railroad Co. v. Berger, 9 Bradw. 341.
    A master may say: “If I am to be responsible for accidents that happen to you, you must do as I say, to avoid them. You must trust my judgment, and I will see that in consequence of so doing no harm befalls you.” Because he refused to obey the master’s orders there can be no recovery in this case. Abend v. Railroad Co. 111 Ill. 202; Iron Co. v. Burke, 12 Bradw. 369; Flannagan v. Railroad Co. 50 Wis. 462; Brown v. Byroads, 47 Ind. 435 ; Railroad Co. v. Thomas, 51 Miss. 641; Felch v. Allen, 98 Mass. 574; Lockwood v. Railroad Co. 55 Wis. 50; Strong v. Railroad Co. 60 Barb. 30.
    It is well established that there can be no recovery if the servant’s disobedience contributes, in whole or in part, to the injury. Wood’s Law of Master and Servant, 399, 400; Oil Co. v, Malin, 60 Tex. 645; Lynn v. Railroad Co. 31 Mich. 429; Railroad Co. v. Hawk, 72 Ala. 116; Weigh v. Railroad Co. 25 N. Y. 568; Beaulien v. Portland Co. 48 Me. 295; Cunningham v. Lyoners, 22 Wis. 245.
    Mr. John T. Lillard, for the appellee:
    The ground for admitting an expert to testify is, that from his larger experience and more exact observation of facts, and the connections between certain appearances and their causes or results, he is able to draw correct conclusions from circumstances which a man of ordinary knowledge and experience could not do. Dickenson v. Fitchburg, 13 Gray, 555; State v. Clark, 12 Ind. 151.
    Admitting, for the purpose of argument, that Dr. Mason’s answer was open to criticism or objection, what possible effect would it have had on the verdict ? It was a trifling circumstance, corroborative of the undisputed properties and character of the gases, as established by the other evidence. People v. Gonzales, 35 N. Y. 49; Thompson v. McLaughlin, 66 Ill. 407; Creote v. Willey, 83 id. 444; Stevison v. Earnest, 80 id. 513; Railway Co. v. Zoffinger, 107 id. 199; Kreigh v. Sherman, 105 id. 49; Railroad Co. v. Rung, 104 id. 641; Village of Warren v. Wright, 103 id. 298.
    A new student or teacher may testify as an expert. Lawson on Expert Evidence, 10, 118; State v. Wood, 53 N. H. 484; Taylor v. Railway Co. 48 id. 304; Dale v. Johnson, 50 id. 452; Hartung v. People, 4 Parker’s Cr. Rep. 319; State v. Hinkel, 6 Iowa, 380; Bierce v. Stocking, 11 Gray, 174.
    It is presumed the jury read the second instruction as it ■commonly impresses the mind. Life Ins. Co. v. Robinson, 98 Ill. 324; Rolling Mill Co. v. Gillen, 100 id. 52; Schmidt v. Sinnott, 103 id. 160; Beard v. Maxwell, 113 id. 440.
    If the instructions are open to criticism on the question of the care O’Brien was at the time exercising, or in assuming that he was ordered into a place of danger, which assumption I confidently deny, even then the errors are cured by appellant’s fourth, sixth, seventh, eighth, ninth and tenth instructions, telling the jury, over and over again, that plaintiff could not recover without proving that deceased was exercising ordinary care and prudence for his safety, and by appellant’s sixth and tenth, and by appellee’s instructions, telling', the jury that before plaintiff could recover she must prove' that Burns knew of the presence of the gas in dangerous. quantities. Packet Co. v. Binninger, 70 Ill. 571; Railroad Co. v. Funk, 85 id. 460; Belt v. People, 97 id. 463; Lawrence v. Hagerman, 56 id. 70; Railway Co. v. Ingraham, 77 id. 309 ; Railroad Co. v. Swearengen, 47 id. 206.
    The appellant’s instructions refused, even if not covered by others given, were not correct as drawn, and could not have-been properly given if they had been the only ones asked by appellant. They single out a certain piece of evidence and give it a prominence not permitted by this court in instructions. They also misstate what Byerly said and did. Swigar v. People, 109 Ill. 272; Railroad Co. v. Warner, 108 id. 538; Phenix v. Costner, 108 id. 208; P. M. L. I. Co. v. Clark, 59 N. H. 345; id. 499; McIntyre v. Thompson, 14 Bradw. 555 Railroad Co. v. Goss, 13 id. 619; Pennsylvania Co. v. Stoelke, 104 Ill. 201.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This was an action on the case, brought by Nora O’Brien,, in the McLean circuit court, against the Citizens’ Gaslight, and Heating Company, to recover damages for alleged negligence causing the death of Patrick O’Brien, her late husband. There have been two trials of the case in the circuit court,, in both of which the plaintiff was successful. In the first, the verdict and judgment were for $5000; in the second, for $3500. The first judgment was reversed for an erroneous-ruling of the trial court, and the second has been affirmed by the Appellate Court for the Third District, whence the-case comes here, on the appeal of the defendant.

The evidence tends to show, that before and at the time of O’Brien’s death he was in the employ of the defendant, as a-laborer, and was subject to the orders and direction of George B. Burns, superintendent of defendant’s gas works; that immediately before the accident causing his death, O’Brien was ordered by Burns to remove some boards from the upper part of the building, which were in danger of taking fire; that in obedience to this order, O’Brien ascended a ladder resting against and extending a short distance above the condenser, from the top of which he caught hold of some iron girders, and swung himself up to where the boards were; that he remained there but a few moments, when, seeming to be strangely affected, he started to return, and in doing so, fell to the floor below, resulting in serious injuries, from which he died in a few hours.

The contention of appellant is, that the fall of the deceased was the result of an accident, that would have been avoided had he got a ladder long enough to reach the boards, as was suggested to him at the time,—in short, the defence is that of contributory negligence. On the other hand, it is contended by appellee, and such is the charge in the declaration, “that by reason of the defective condition and improper operation of the apparatus used in the manufacture of gas, poisonous gases escaped into that portion of the building where O’Brien was directed to go, and that, being overcome by inhaling said gases, he fell to the floor, causing the injuries from which he died, ”—in short, the charge in the declaration is, that the fall of the deceased was caused by inhaling poisonous gases negligently permitted to escape by the defendant, while the defence is, that it was a mere accidental fall, occasioned by the defendant’s own negligence. It is true, that in addition to this, other matters collateral to the main issue are urged by way of defence. For instance, it is claimed that the defendant had no notice of the defective condition of the machinery, or of the fact that the gases were escaping. It is also contended that O’Brien was not, at the time of the accident, acting under directions of Burns, but of one Byerly, and that the latter ordered O’Brien to use a longer ladder in his ascent to remove the boards. Yet all these collateral matters, as well as the main issues above mentioned, are •conclusively settled against the appellant by the judgment of the Appellate Court, and we shall not, therefore, follow counsel in their discussion of these questions.

Nor do we propose to consider, in detail, all the objections to the admission and rejection of testimony. Some of them are so highly technical as not to deserve serious consideration. This is well illustrated by the first point made in appellant’s brief. Witness Clark, when on the stand, was shown a plat of the gas works, upon which was represented, among other things, the smoke-stack or escape pipe, and counsel for plaintiff was permitted, against the objection of the defendant, to ¡ask the witness (indicating on the plat) if the stack was in position, to which the witness replied that it was not,—and this is complained of by counsel. They insist that the tendency of the question and answer was to leave the impression on the minds of the jury, that the stack, being out of position, conduced in some way to the. escaping of the gas. We see no force in the objection. If such was the tendency, and the inference was a false one, it was easily met by countervailing testimony. It was not only competent, but we think proper, to show the place of the accident and all its surroundings. The stack was a part of the gas works, and was used in manufacturing gas, and as such there was no impropriety in having it pointed out to the jury, as was done; and if it was detached, however inconsequential that fact may have been as part of the surroundings or res gestee, there was nothing improper in showing it. .

Of the same character is the point made on the testimony of Dr. George W. Mason, a witness of apparently enlarged experience, both as a student and teacher of chemistry. After having stated that the gases produced by combustion of hard coal were principally carbonic acid and carbonic oxide, with admixture of sulphurous acid gas, and having described their nature, character and effects upon- the human system, the witness was asked this question: “If you have had any experience with this kind of gas, tell what it is. ” This question was objected to, and the objection is renewed here in an extended argument. We perceive no objection to it whatever. The plaintiff was proceeding upon the hypothesis that O’Brien had been overcome by poisonous gases produced by the combustion of hard coal. To succeed, it was necessary to show what kind of gases, if any, were thus produced, their nature and effect upon the human system; and to enable the jury to intelligently determine the weight to be given to the evidence offered for such purpose, it was eminently proper to ask the witness what experience he had had with the gases of which he had spoken. The object of the inquiry was to show the witness’ qualifications, rather than the presence and effect of such gases under different circumstances. His practical experience with them is what was called for, and the fact that his answer gave a practical illustration, as it did, of a part of his general knowledge and experience on the subject, was not at all improper, and could not possibly have prejudiced the defendant. The right of a witness to testify as an expert, in any case, will depend either upon the previous study and scientific research of the'witness, or upon his actual experience with respect to the subject of the investigation, and often upon both combined. Here, the witness, after having shown his opportunities, both as a student and teacher, of obtaining a theoretical knowledge of the subject, clearly had the right to state what, if any, practical personal experience he had had with these gases. We repeat, this was eminently proper, and does not at all conflict with the rule laid down by Greenleaf, as is supposed by appellant’s counsel.

Without pursuing this subject further, suffice it to say, in general terms, that after a very careful examination of all the questions raised by counsel relating to the admission and exclusion of testimony, we are unable to discover any substantial error for which the judgment in this case should be reversed.

No serious objections are urged against the plaintiff’s instructions, except against the second, which is as follows:

“If you believe, from the evidence, that George B. Burns, at the time of the injury to Patrick O’Brien, was superintendent of the defendant gas works, and was by defendant duly authorized to hire and discharge, manage, direct and control its employes and workmen, and that O’Brien was one of its employes, and if you further believe, from the evidence, that poisonous or dangerous gas was permitted, wrongfully and negligently, as plaintiff alleges, to be in the generator-room of said gas works, and that said Burns ordered or directed the said O’Brien to move lumber or do work in a portion of said room where you believe, from the evidence, such gas would endanger his life or safety, and if you further believe, from the evidence, that such danger was not known to the said O’Brien, but was known to the said Burns and the defendant, and if you further believe, from the evidence, that the said O’Brien, without such knowledge, or any fault or negligence on his part, but in obeying or carrying out the order of said Burns, was made dizzy or overcome by said gas, and was thereby thrown down and injured, so that he died from the injury,—in that case the defendant is liable for the pecuniary injuries sustained by the widow and next of kin of the said O’Brien, by reason of his death, not exceeding $5000, so far as the same is shown by the evidence.”

Counsel say of this instruction: “Applying to the words we have italicized (“or” and “but”) the meaning given them by the lexicographers, this instruction misstates the law in several particulars. The disjunctive ‘or,’ separating knowledge, fault, and negligence, leaves the jury at liberty to find for appellee, so far as O’Brien’s knowledge is concerned, if the evidence shows merely that he did not actually know of the danger, regardless of whether he might have known by the exercise of ordinary care.” It may be conceded that the instruction is not technically accurate if tested by the strict rules of grammar, but we do not understand that instructions are necessarily to be thus tested. The important inquiry in this, as in every case, .is, in what sense did the jury understand the instruction. As understood by them, was it correct ? By mere inadvertence, or for want of knowledge of its proper use, the word “or” is often used for “and,” and we have no doubt it was so used in the instruction where it occurs after the word “knowledge.” But the difference in the use of the two words in that connection would probably .be noticed by but few, and certainly no one would be misled ¡by it. While the scholar might see the verbial inaccuracy, jet, as to what was meant and intended by the instruction, he would come to the same conclusion the unlettered juror would. That part of the instruction which is criticised, told the jury, in substance, as we construe it, and as we have no doubt they understood it, “that if they believed, from the evidence, that Burns and the defendant had knowledge of the danger to which O’Brien was exposed, and that the latter, without such ¡knowledge, and without any fault or negligence on his part, ■except in obeying and carrying out the order of Burns, was made dizzy and overcome by the gas,” etc., the defendant would be liable.

But conceding the instruction is equivocal, and was liable -to mislead if standing alone, yet when read in connection -with the defendant’s own instructions, there is not the slight -est foundation for such a claim. Whatever errors may be found in plaintiff’s instructions, are, if possible, more than .cured by the defendant’s. The defendant’s instructions, doubling in number those asked or given for the plaintiff, .-are unusually full, covering every possible phase of the case favorable to the defendant, and going to the very verge of ihe law on every point, and in one or two instances probably beyond it. Such being the case, we can say with confidence -the defendant has no cause to complain on the ground the instructions, as a whole, are unfavorable to it. Any doubt of the justness of this statment will vanish in a moment ?by simply reading the defendant’s instructions and the criticisms, made upon the plaintiff’s. If any one has cause to complain, of the instructions, it is the plaintiff, and not the defendant.

In conclusion, it may not be improper to call attention more particularly to a matter already adverted to, and which appellant has kept well to the front throughout the entire case, both here and in the courts below. It is the claim that at the time of O’Brien’s death he was acting under the orders of Byerly, and not Burns, and that his not heeding the suggestion of Byerly to use a longer ladder in ascending to the place of danger, the deceased was guilty of such contributory negligence as to prevent a recovery. As already stated, these--were all subordinate issues of fact, which have been conclusively settled against the appellant. But it is complained the court refused to give the necessary instructions on this, subject. The defendant’s sixth refused instruction is a fail" sample of all that were asked and refused on this branch of the case. It is as follows:

“The court instructs the jury, that if they believe, from the-evidence, that the deceased, Patrick O’Brien, at the time he started to go up to the top of the generator-room, was told by the witness Byerly not to go the way he did go, but to take a long ladder and go on it, and that O’Brien refused to obey Byerly, and in consequence came to his death, then the court instructs the jury that they should find for the defendant. ”

Now, it is manifest that this instruction was well calculated to leave the impression upon the minds of the jury that the-neglect or refusal of O’Brien to procure a longer ladder, as suggested by Byerly, was, of itself, evidence of negligence on the part of O’Brien, whereas it really had nothing to do with the question. It was the duty of the deceased to adopt that course which was freest from danger* if there was any difference in the two ways. That is what the law required. Whether the course suggested or the one pursued was the less hazardous, was a question for the jury, wholly unaffected by the fact that a direction or order was given by Byerly on the subject. It is true, that if, in obedience to the master’s command, a servant does an act which is not manifestly dangerous, resulting in an injury to the latter, the master will be held liable; yet this rule is not true e converso. Or, in other words, if the master orders a thing to be done, he will not be exonerated from liability merely because the servant does not do it in the" particular way directed by the master, unless that should be the safer way. As before stated, the question, in every such case, would be, whether the servant pursued the less dangerous course. It would be a strange rule, indeed, to exonerate the master merely because he had commanded a more dangerous course than the one actually pursued.

But the instruction, as a whole, was objectionable in another respect. It was calculated to divert the attention of the jury from the main issue in the case. The frictional point upon which the whole case turned, was, whether O’Brien’s fall to the floor was caused by the inhaling of poisonous gases, or whether it was an accidental fall. If it was an accidental fall, then the plaintiff was not, under the pleadings, entitled to recover at all, without regard to whether any orders were given by Byerly or not. On the other hand, if the deceased fell from the effect of the gas, it is wholly immaterial how he made his ascent to the boards,—whether upon a long ladder or a short ladder. The length of the ladder could have had nothing whatever to do with the fall. To the suggestion he might have got up or down sooner on a long ladder than a short one, that is simply frivolous. "When it is conceded the defendant negligently permitted the gases to escape, and that the deceased, in obedience to its orders, and without knowledge of their presence, exposed himself to them, and thereby lost his life, the law will not stop to split hairs or count seconds, for the purpose of determining whether the deceased might not have shortened his exposure a second or two by ascending to the place of danger on a longer ladder than the one used, in order to defeat a recovery.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    A. J. Banta, Admr. v. William T. Boyd et al.

      Filed at Springfield October 6, 1886.

    1. Will—rule of construction—giving effect to the intention of the testator. In construing a will, the intention of the testator, as manifested by the words used, must prevail. This intention is not to be determined from ■one clause or provision of the will, but each and every clause of it must be -considered, and from the whole instrument and all its parts the court must -determine such intention.
    2. Same—when an interest or estate becomes vested—as, where the proceeds of property to be converted into money, are the subject of the devise. A testator directed that all his estate, real and personal, be converted into money, and devised to each of the four children of his sister P., (naming them,) one share, and to her two grand-children each a half share, and in case of the death of either of said four children, then to the widow of such deceased, and in like manner one share to each of the children (naming them) 'of his brothers and another sister, and three shares to his half-brother, and then directed, that “in the event of the death of any one named above, then the portion or share of the deceased to be paid to his or her offspring, and if no offspring” was left, his part to lapse. Thirteen days after the death of the testator one of the sons of P. died, leaving children, and his administrator claimed his share of the estate: Held, that the son of P. did not take r& vested interest immediately upon the death of the testator, and that the share of such son went to his heirs.
    3. In such case the property of the testator was not devised, but only its ■proceeds when converted into money, and the persons named took no vested interest before the arrival of the time for distribution. In case of the death ■of any one before the conversion of the estate into money and the period for distribution had arrived, his or her part went to his or her children, if any, and if no children, his share lapsed, thereby increasing the other shares.

      Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of San.gamon county; the Hon. Jesse J. Phillips, Judge, presiding.
    Messrs. Patton & Hamilton, for the appellant:
    Under the will the title to the real estate of the testator did mot vest in the executors. They had simply a power of sale. The legal title descended to his heirs, subject to the power of ■sale conferred upon the executors. Lambert v. Harvey, 100 Ill. 338.
    The real estate is directed to be sold, and the proceeds paid to the legatees, “in a convenient and reasonable time.” The will devised money,—not land. Baker v. Copenbarger, 15 Ill. 103; Jennings v. Smith, 29 id. 116.
    The will must be interpreted by the language employed in it, without resort to extrinsic evidence. Mason v. Ely, 38 Ill. 138; Hislop v. Gatton, 78 id. 528; Loan Co. v. Bonner, 75 id. 315.
    A construction should be given that will harmonize the several clauses of the will, and give effect to each. Mason v. Ely, 38 Ill. 138; Bergan v. Cahill, 55 id. 160; Brownfield v. Wilson, 78 id. 467; Welsch v. Belleville Savings Bank, 94 id. 191; Johnson v. Johnson, 98 id. 564; Bland v. Bland, 103 id. 11; Hamlin v. Express Co. 107 id. 443.
    Applying this rule of construction to the will in controversy, we find the testator providing for legacies to individuals of five classes, viz.: First, the children of his sister Polly Boyd; second, the children of his brother William; third, the children of his brother Washington; fourth, the children of his sister Elizabeth; fifth, his half-brother, Thomas.
    Respecting the first class, to which Spencer Boyd belonged, the will provides that “if any die or have died, then to the widow of said deceased.” The only direction he gave as to members of this class was, that in the event of the death of any of them, his widow should take the legacy designed for her husband. It is contended that the clause, “in the event of the death of any one named above, then the portion or share of the deceased to be paid to his or her offspring, or if such deceased person leave no offspring, then his or her share is to cease and be as though it was not devised, and the other shares proportionately increased, ” was intended by the testator to apply to the first as well as to the other classes of legatees. Manifestly, his intention was, that those of the first class should not be affected by this clause. If it were otherwise, then the provision that the share of him who might die should go to his widow, is nugatory. “As a will takes effect at the death of the testator, it follows that any devise or bequest in favor of a person in esse, simply, (i. e., without any intimation of a desire to suspend or postpone its operation,) confers an immediately vested interest. ” 2 Jarman on Wills, (Rand. & Tal. 5th Am. ed.) 406; 3 id. 606, 607.
    The question of survivorship does not arise in this case, and consequently the cases of Ridgeway v. Underwood, 67 Ill. 419, and Blatchford v. Newberry, 99 id. 11, do not apply.
    Messrs. Stuart, Edwards & Brown, for the appellees:
    It is, without doubt, the law, that the intention of the testator, as manifested by his will, must prevail, and that his intention must be ascertained from the whole will, taken together. Willis v. Watson, 4 Scam. 64; Heuser v. Harris, 42 Ill. 425; Jennings v. Jennings, 44 id. 488; Carruthers v. McNeill, 97 id. 256; Johnson v. Johnson, 98 id. 564.
    There was no vested interest in Spencer Boyd. People v. Jennings, 44 Ill. 488; Ridgeway v. Underwood, 67 id. 419; Blatchford v. Newberry, 99 id. 11.
   Mr. Justice Craig

delivered the opinion of the Court:

Elijah lies, of Springfield, in this State, died testate oh the 4th day of September, 1883. The will of deceased contained the following provisions:

“First—In consideration of the love and affection I bear to my blood relations, I devise and bequeath to each one named below, a part or portion of all the proceeds of all the real and personal estáte of which I may die possessed, (after paying all my debts, which may be few, or probably none,) which portion or share is to be paid to each one named below, to-wit: To the following named children of my sister, Polly Boyd, viz., Cyrus, William, Elijah and Spencer, each one share, or if any die or have died, then to the widow of said deceased, and to her grand children, Helen Reynolds and Mary Bigstaff, each, a half share. To the following named children of my brother, William lies, viz., Minerva, Thomas, Clarissa, Jane, Mary and William, each one share. To the following named children of my brother, Washington lies, viz., Elizabeth, Cordelia, Ann, Washington, Elijah, Virginia and Edward, each one share, and to the heirs of his daughter Malinda, one share. To the following named children of my sister, Elizabeth, viz., Parthena Singleton, Thomas and' Reuben McDannald, Mary Melton and Elijah Strowbridge, each one share. To my half-brother, Thomas J. lies, three shares.
“Secondly—I appoint Norman M. Broadwell and Obed Lewis executors of this my last will and testament, and do hereby authorize them and empower them, or the survivor of them, to sell and convey all the real estate and personal property of which I may die possessed, in manner and on such terms as they may deem best, and of the proceeds pay the portion or share to each one named, in a convenient and reasonable time. In the event of the death of- any one named above, then the portion or share of the deceased to be paid to his or her offspring, or if such deceased person leave no offspring, then his or her share to cease, and be as though it was not devised, and the other shares proportionately increased.”

On the 17th day of September, 1883, Spencer Boyd, one of the legatees, died in Bath county, Kentucky, leaving appellees, his children, but no widow, and on the 25th day of October, 1883, appellant, Banta, was appointed administrator of his estate -by the county court of Bath county. The question presented by the record is, whether the executors of the-estate of lies shall pay the money bequeathed to Spencer Boyd, to his heirs or to his administrator. The circuit court, decided that the money was payable to the administrator,, and that decision was reversed in the Appellate Court.

A proper solution of the question involved rests upon the construction which will have to be placed upon the will set out above, and in construing the instrument, the intention of the testator, as manifested by the language of the will, must prevail. The intention of the testator is not to be determined from one clause or provision of the will, but each and every clause of the instrument must be considered, and from the-whole will determine what was intended by the testator.

It seems plain, from the will, that the testator intended to' make provision for five classes of persons: First, for certain named children of his sister, Polly Boyd; second, certain named children of his brother William; third, certain named children of his brother Washington; fourth, certain named children of his sister Elizabeth; and fifth, his half-brother,. Thomas. It is also apparent, from the will, that the testator did not intend to devise to said parties, directly, any portion of his real or personal property, but all of his real and personal property was intended to be placed, and was-placed, in the hands of his executors, to be by them converted into money, and the proceeds distributed among the legatees named in the will. It was not the property itself which was devised, but the proceeds. Under such circumstances, did Spencer Boyd take a vested interest upon the-death of the testator? We think not. On the other hand,, we think it is plain that the date of distribution was the time: provided when the parties should take. It will be observed that the last clause of the will declares, that “in the event of the death of any one named above, then the portion or the share of the deceased to be paid to his or her offspring, or if such deceased person leave no offspring, then his or her share is to cease, and be as though it was never devised, and the other shares proportionately increased. ” The obvious meaning of this clause of the will is, in case any of the devisees named in the will should die before distribution, then the portion in the hands of the executors intended for such devisee should go to his offspring. This shows a plain intention that the right of the devisee should not vest until the time had arrived for a distribution of the proceeds of the testator’s property.

But it is said that this clause of the will has no reference to the devise made in favor of the children of Polly Boyd, but has reference to the other bequests. The language here employed is general, and is broad enough to apply to any and all of the legatees. The language, “in the event of the death of any one named above, ” is so plain and definite, that Spencer Boyd could not be excluded from its operation without an arbitrary disregard of the plain and obvious meaning of the language employed by the testator to express his intention in the distribution of his property. Spencer Boyd died thirteen days after the death of the testator,—long before the property devised had been converted into money, and before the period of distribution had arrived,—and we are of opinion^ that by the terms of the will the amount which he would have received, had he lived, belonged to his offspring,—his children. This view is in harmony with Jennings v. Jennings, 44 Ill. 488, where a like question arose.

What was intended by the testator by the last part of that clause of the will in which the devise is made to the children of Polly Boyd, wherein he uses-this language, “if any die or have died, then to the widow of the said deceased, ” may not be entirely clear; but however that may be, the other clause of the will, which we have alluded to before, leaves no room for doubt as to the proper distribution of the property.

We regard the decision of the Appellate Court as correct, and it will be affirmed.

Judgment affirmed.


author: Mr. Justice Magruder

text:
    George Hamilton v. William Scully.

      Filed at Springfield October 6, 1886.

    1. Contract—time of performance, when not expressed. Where a party undertakes to do some particular act the performance of which depends entirely upon himself, and the contract is silent as to the time of performance, the law, without reference to extraordinary circumstances, will imply that it shall be performed within a reasonable time.
    2. Same—time to perform act, which may qualify or change rights amd duties of parties. Where a party has obligated himself to pay a given sum of money by a future day, which is fixed as the time for full performance, and it is agreed that the sum to be paid may be increased or diminished by the performance of another act left to the option of the parties, the law will require either party to exercise his option, and perform such act, before full payment of the sum named is made. After full payment the party will be held to have waived his right to do the act entitling him to a further sum.
    3. The owner of a farm supposed to contain 4141 acres, sold the same at $45 and $50 per acre, the purchase money to be paid as follows: $15,000 on the execution of the contract, $85,000 on the execution and delivery of the deed by May 10, 1877, and the balance, $115,297.40, on or before March 1, 1878, which was to be secured by note and mortgage. It was further provided in the contract, that either party might, at his own expense, survey the land, if he saw fit, to ascertain the number of acres, and if such survey showed the land to contain more acres than the parties supposed, the purchaser should pay the difference, and if it contained less, the amount of the deficit should be deducted from the purchase money or credited upon the note and mortgage. • Some seven years after the date of the last payment the vendor had a survey made, and brought suit against the purchaser for an excess shown by the survey: Held, that he could not recover, the survey after payment of the last installment being too late.

      Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Sangamon county; the Hon. Jesse J. Phillips, Judge, presiding.
    Messrs. Stuabt, Edwabbs & Bbown, for the appellant:
    When no time is fixed for the payment of money, it is not the law that the payment is to be made within a reasonable time, but upon demand. Thomas v. Kitcham, 8 Johns. 189; Abbott v. Douglass, 1 C. B. 491; Herrick v. Bennett, 8 Johns. 374; Gaylord v. Vanloan, 15 Wend. 308; Cornell v. Moulton, 3 Denio, 12; Keys v. Fenstermaker, 24 Cal. 329; Freeman v. Roberts, 15 Ga. 215.
    A note payable “whenever the lands in the late purchase in Iowa Territory should be advertised for sale,” becomes due whenever any part of those lands were proclaimed for sale. (Glancy v. Elliott, 14 Ill. 456.) So, here, the money was due whenever the survey was made.
    Messrs. Blinn & Hoblitt, for the appellee:
    It is a cardinal principle in construing contracts, that they must have a reasonable interpretation, according to the intention of the parties executing them, if the intention can be gathered from the language used. Wilson v. Marlow, 66 Ill. 385; Nichols v. Mercer, 44 id. 250; Tracy v. Chicago, 24 id. 500; Walker v. Douglass, 70 id. 448; 1 Chitty on Contracts, (4th Am. ed.) 104, 105 ; Broadwell v. Broadwell, 1 Gilm. 612.
    In giving construction to a contract, the question is, what, by a fair and reasonable interpretation of the words and acts of the parties, was the bargain between them. Fire Ins Co. v. Olcott, 97 Ill. 440; Nichols v. Mercer, 44 id. 250; Fitch v. Priest, 46 id. 226.
    It is a universal rule of construction, that whatever may be fairly implied from the terms or language of an instrument, is, in the judgment of law, contained in it. Rodgers v. Kneeland, 10 Wend. 250; Baldwin v. Humphrey, 44 N. Y. 614.

      Where no time is mentioned in an agreement for the performance of any of its conditions, a reasonable time is to be understood. What is a reasonable time, depends upon the circumstances of each case. Chitty on Contracts, part 3, p. 730; Cacker v. Manf. Co. 3 Sumn. 530; Atwood v. Cobb, 16 Pick. 251; Roberts v. Beatty, 2 Pa. 63; Phillips v. Morrison, 3 Bibb, 105; Sawyer v. Hammond, 3 Ship. 40; Howe v. Huntington, id. 350; Atkinson v. Brown, 20 Me. 67; Nudd v. Wills, 11 Wis. 436; Waterman v. Dutton, 6 id. 264; Driver v. Ford, 90 Ill. 598.
   Mr. Justice Magruder

delivered the opinion of the Court r

After the sale of certain tracts of land, a survey developed, the fact, that the number of acres in the tracts sold exceeded! the number of acres, which the lands were supposed to contain at the time of the sale. This is an action of assumpsit,, brought to recover the value of the excess. The question involved depends upon the construction of the contract, hereinafter mentioned. Upon the trial of the cause, without a. jury, before the circuit court of Sangamon county, judgment, was rendered against defendant below, who is the appelleehere, for $3505.54. An appeal was taken to the Appellate-Court of the Third District, and, there, the judgment of the circuit court was reversed. The case is brought here by appeal from the judgment of the Appellate Court, reversing; that of the circuit court. By the judgment of the Appellate Court, the appellant there, who is the appellee here, recovered his costs of the appellee there, who is the appellant here, and. execution was ordered to issue therefor.

On April 17, 1877, George Hamilton, the appellant here,, and one James C. Hamilton, who has since deceased, made a. contract in writing with William Scully, the appellee here, for the sale to the latter of 4141^4q- acres of land, in Sangamon county, for $215,297.40, 3787T4A- acres being sold at $50 per acre, and 353^9020 acres at $45 per acre. The purchase money was to be paid as follows: $15,000 on the execution of the contract, $85,000 on the execution and delivery of a warranty deed to Scully by the Hamiltons and their wives, “for said land, on the 10th day of May 1877,” and the balance, $115,297.40, on or before March 1,1878. The payment of the $115,297.40 was to be secured by Scully’s note, and mortgage upon the premises. By the terms of the agreement, the Hamiltons agreed, “by June 1,1877,” to procure a release of a trust deed, dated March 13, 1875," which they had executed upon the property, “upon said William Scully executing and delivering to said James 0. and George Hamilton the note and mortgage, above mentioned, to secure the balance of said money.” The Hamiltons were to furnish certain proofs, in regard to the title, by May 10, 1877, and, in default of so doing, the agreement was to become void. Possession was to be given to Scully on the execution of the agreement. The provisions of the contract, out of which this controversy arises, are as follows:

“The said Messrs. James C. and George Hamilton, or William Scully, agree, at their own expense, respectively, to survey the said land, if they see fit, for the purpose of ascertaining the amount of acres contained therein, said survey to be made by the county surveyor or some other competent surveyor. And it is hereby agreed, that if, on actual survey, the land shall be shown to contain more acres than is shown by the government survey, the said William Scully shall pay the difference, and if upon such survey the said land shall be shown to contain a less amount of acres than is shown by the government survey, the amount thereof shall be deducted from said purchase money, and said William Scully allowed a credit of said amount on his said note and mortgage. ”

The contract was fully executed and closed by the 1st day of April 1878. Appellee received a conveyance of the property and the possession thereof, according to the terms of the agreement. He paid the $15,000 and the $85,000, at the •dates agreed upon, and was ready to pay the $115,297.40 on March 1,1878. The latter amount was not paid until April 1, 1878, because the Hamiltons did not, before that time, obtain a release of the trust deed, dated March 13, 1875.

Appellee caused no survey of the land to be made. Appellant and James C. Hamilton had a survey made in January 1884, of which appellee received no notice until January or ¡February 1885, nearly seven years after all the purchase anoney had been paid. The survey made showed an excess, •over the government survey, of 68T702^ acres, 66T9g20- acres in the lands sold at $50 per acre, and lT85°g acres in those sold at $45 per acre. This suit was begun on February 16,1885, by appellant against appellee to recover the value of these 68j72^ acres, and, for such value, the judgment of the circuit court was rendered.

The parties to the contract had a right to make surveys, if they should “see fit.” The making of the surveys was not a matter of obligation, but a matter of option. The purpose of making the survey was to ascertain the number of acres, contained in the premises sold. It was important to the Hamiltons to ascertain the number of acres, in order to increase, if possible, the purchase money to be received for the lands. It was important to appellee to ascertain the number of acres, in order to decrease, if possible, the purchase money to be paid. The contract specified, that all the purchase money was to be paid up by March 1,1878. If, therefore, any steps were to be taken for either the increase or the decrease of the purchase money, such steps were to be taken before March 1, 1878. Although the provisions of the contract, in reference to the survey, specify no particular time, at which such survey was to be made, yet, when all parts of the contract are construed together, it is manifest, that it was the intention of' the parties to fully complete it, and finally close it up on or before March 1, 1878. Whatever was-necessary to determine the character of the title, or the amount to be paid, was to be done between April 17, 1877 and March 1, 1878. The deed of the property was to be executed and delivered by May 10,1877. The documents, clearing up certain objections to the title, were to be furnished by May 10, 1877. The release of the existing incumbrance was to be obtained by June 1, 1877.

It is unreasonable to suppose, that, where all the other acts, required of either party to the contract, were to be performed between its date and the day fixed for the payment of the last installment of the purchase money, the sole act of making the survey was to be left for performance, whenever either party should get ready, even though after the lapse of some seven years. The proof shows, that the survey could have been made in two or three weeks, and it was the duty of appellant and James C. Hamilton, if they had good reason to think, that they were deeding away a larger quantity of land than that, specified in their contract, to have had the various tracts surveyed, before they accepted $115,297.40, as the . agreed balance of the purchase money.

The view, here expressed, is sustained by the language, uSed in the last clause of the portion of the agreement, above quoted. It is there provided, that, if the survey shall show the lands conveyed to contain a less number of acres, than that called for by the government survey, “the amount thereof shall be deducted from said purchase money, and said William Scully allowed a credit of said amount on his said note and mortgage.” He had agreed to pay the note and mortgage on March 1, 1878. How, then, could a credit be endorsed on them, unless such credit was ascertainéd, before they were paid and taken up and cancelled ? The amount of such credit could only be ascertained by the survey. If appellee was required to make his survey, in order to ascertain the possible deficiency, by March 1, 1878, it will surely not be claimed, that appellant and James 0. Hamilton were not bound to-make their survey before the same date, in order to ascertain the possible excess.

Moreover, where no time is expressed in a written contract for the performance of its terms, the law will imply, that it shall be within a reasonable time. (Driver et al. v. Ford et al. 90 Ill. 595.) “Where a party to a contract undertakes to do some particular act, the performance of which depends entirely on himself, and the contract is silent as to the time of performance, the law implies an engagement, that it shall be executed within a reasonable time, without reference to extraordinary circumstances.” (2 Chitty on Cont. 11th Am. ed. 1062.) The agreement of appellant and James C. Hamilton to make a survey depended entirely upon themselves. They were to make it or not, as they should “see fit.” If, therefore, the contract can not be construed, as requiring the survey to be made before March 1, 1878, and must be held to be “silent as to the time of performance,” then, even from this point of view, the Hamiltons were bound to make the survey within a reasonable time. We do not think, that the survey, upon which this suit is based, made, as it was, nearly seven years after the contract of sale was fully executed, was, under the circumstances shown by this record, made within a reasonable time.

For the reasons, here stated, the judgment of. the Appellate Court is affirmed.

Judgment affirmed.


author: Per Curiam :

text:
    Mahala Salisbury et al. v. George H. Aldrich.

      Filed at Springfield October 6, 1886.

    1. Disposition op property—as to mental capacity,■ and undue influence. Inequality in the distribution of property is not conclusive evidence of •unsoundness of mind or of undue influence. It is a mere circumstance tending to establish undue influence or unsoundness of mind, but it is not, of •itself, sufficient for that purpose.
    2. Same—right of owner to discriminate as between his children. A man may be very partial, and, in a moral view, very unjust, in the distribution of his property among his children; yet if he acts voluntarily, and is not -of unsound mind, his disposition must stand, though the result of passion •or prejudice.
    Appeal from the Circuit Court of Hancock county; the Hon. “William Marsh, Judge, presiding.
    Messrs. Sharp & Berry Bros., and Messrs. O’Harra & 'Scofield, for the appellants:
    The unnatural disposition of his property strongly suggests "the existence of improper influence upon the mind of Horace Aldrich, and is sufficient to condemn his acts, and require prpof that they were of his own free volition. Harrel v. Harrel, 1 Duv. 203; 1 Jarman on Wills, 139, note; Lindsey v. Lindsey, 50 Ill. 79; McLaughlin v. McDevitt, 63 N. Y. 217; Taylor v. Wilburn, 20 Mo. 306.
    Whatever destroys the free agency of the grantor, constiflutes undue influence. Whether that object be effected by physical force or mental coercion, by threats which occasion fear, or by importunity which the grantor is too weak to resist, or which extorts compliance in the hope of peace, is immaterial. Executors of Moore v. Blauvelt, 15 N. J. Eq. 367; Rollwagen v. Rollwagen, 63 N. Y. 519.

      The amount of undue influence necessary to invalidate a, deed must vary with the strength of mind of the grantor, and other circumstances. 1 Jarman on Wills, 36; Reynolds v. Root, 62 Barb. 250.
    The precise mode of exerting the influence and practicing the fraud need not be proved. (McLaughlin v. McDevitt, 63 N. Y. 213.) It may be shown by facts and circumstances surrounding the parties, etc. Tyler v. Gardiner, 35 Ill. 559 ; Rollwagen v. Rollwagen, 63 N. Y. 504; Dean v. Negley, 41 Pa. 312; Forman v. Smith, 7 Lan. 443; Bigelow on Fraud, 476, 477; Reynolds v. Root, 62 Barb. 250; Tilton v. Tilton, 54 Pa. St. 216.
    As to when the burden of proof shifts, and the defendant-required to show scrupulous good faith, see, also, the following cases: Comestock v. Comestock, 57 Barb. 453; Deen v. Phillips, 5 W. Va. 188; Tood v. Grove, 33 Md. 188; Meek v. Perry, 36 Miss. 190; Zeigler v. Hughes, 55 Ill. 288; Sear v. Shafer, 2 Seld. 268; Bowey v. Hollingsworth, 23 Ala. 690.
    Messrs. Manier & Miller, and Messrs. Mason & Halbower, for the appellee :
    As to the presumption in favor of sanity, and burden of proof, see Fisher v. People, 23 Ill. 283; Hopps v. People, 31 id. 387; Lilly v. Waggoner, 27 id. 395; Litcomb v. Vantyle, 84 id. 371.
    To destroy the binding effect of a deed, the evidence of mental incapacity must strongly preponderate. Myatt v. Walker, 44 Ill. 487.
    The owner of property has the lawful right to dispose, of the same as he or she may choose, and such disposition of the property is valid, whether it be reasonable or unreasonable, just or unjust. Carpenter v. Calvert, 83 Ill. 70.
    A person has a right to judge who are proper objects of his bounty, and, if free from insane delusions or senile dementia, passing by his own children, give his property to aliens to his blood. A disposition of an estate by the owner, by will or deed, there being no legal impediment, determines* its destiny. Uhlich v. Muhlke, 61 Ill. 523.
    A man has a right to dispose of his property as he chooses, and if he gives one child more than another, that fact affords no just ground of complaint. Wiley v. Ewalt, 66 Ill. 32; Clearwater v. Kimler, 43 id. 277; Heuser v. Harris, 42 id. 429.
    So a gift by one to his confidential agent and adviser is valid. Uhlich v. Muhlke, 61 id. 499.
    A person who is capable of transacting ordinary business is also capable of making a valid will. The rule is the same in the ease of a sale of property, and its disposition by will. Meeker v. Meeker, 75 Ill. 260; Carpenter v. Calvert, 83 id. 62; Brown v. Riggin, 94 id. 560.
    The influence resulting from kindness, argument or proper advice is not undue, and will not avoid a deed or will. Yoe v. McCord, 74 Ill. 34; Dickie v. Carter, 42 id. 388.
    As to the influence which the law calls undue, and its nature and character, see Roe v. Taylor, 45 Ill. 491; 1 Redfield on Wills, 522; Chandler v. Ferris, 1 Harr. 454; Calvert v. Davis, 5 Gill & J. 301; O’Neal v. Farr, 1 Rich. (S. C.) 80; Martin v. Teague, 2 Spear, (S. C.) 268.
    It will be presumed that a party has just cause for making the disposition of his property he does. Meeker v. Meeker, 75 Ill. 261.
    In the absence of proof of undue influence, the inequality of a testamentary disposition can not be .urged as proof of undue influence. Rutherford v. Morris, 77 Ill. 421; Stone v. Wilburn, 83 id. 108.
   Per Curiam :

This is a bill in equity, exhibited in the-Hancock circuit court, by certain children and heirs at law of Horace Aldrich, late of that county, deceased, to cancel and set aside two deeds purporting to have been executed by said Horace Aldrich to George H. Aldrich, another one of his children and heirs at law, on the ground that their execution was obtained by the undue influence of the said George H. over the said Horace, and also that the said Horace was, at the time of executing them, of unsound mind.

Two issues of fact were made up and submitted to a jury, namely: First, whether or not the deeds described in the hill in this cause, from Horace Aldrich, and Mary W. Aldrich, his wife, to George H. Aldrich, bearing date September 27, 1884, and January 10, 1885, were obtained from the said Horace Aldrich by and through undue and improper influence exerted upon him by the said George H. Aldrich, or his agents; and second, whether or not the said Horace Aldrich was, at the time of the making of said deeds, of sound mind and memory, with sufficient understanding and capacity to execute said deeds. The jury found, on the first of these issues, in the affirmative, and on the second, in the negative; but the court, on final hearing, disregarded these findings, and set aside the verdict of the jury, and dismissed the bill. The case comes here by the appeal of the complainants below, from that decree.

No. question of law is presented. The controversy is confined to the weight of evidence on the issues of fact. We have given the record a very careful consideration, and while we are hardly prepared to say that we are entirely satisfied with the decree below, yet we are unable to say that we are clearly satisfied that it is wrong because not sustained by a preponderance of .the evidence.

It is to be borne in mind, that inequality in the distribution of property is not conclusive evidence of unsoundness of mind or of undue influence. It may be considered as a mere ■circumstance, when in proof, as tending to establish undue influence or unsoundness of mind, but it is not, of itself, conclusive and sufficient for that purpose. One may be very partial, and, in a moral view, very unjust, in distributing his property among his children. He may discriminate on insuffieient reason, or without any reason; yet if he act voluntarily, and his mind be not unsound, his disposition must stand. It is the will of the testator, though the result of passion or prejudice, and not what the neighbors and friends think would be fair or just, that must control.

It would subserve no useful purpose to recapitulate this -evidence. It is enough that we do not feel that the decree is so clearly wrong that it should be reversed.

The decree is affirmed.

Decree affirmed.


author:
Mr. Justice Sheldon
      Mr. Justice Dickey :

text:
    The Chicago and Eastern Illinois Railroad Company v. Adolph Loeb.

      Filed at Ottawa March 26, 1884

      Rehearing denied September Term, 1886.
    1. Damages—to real estate—by nuisance—when future damages recoverable. In an action brought for a deterioration in the value of real estate, •occasioned by a nuisance of a permanent character, or which is treated as permanent by the parties, all damages for the past “and future injury of the property may be recovered, and one recovery in such a case is a bar to all future actions for the same cause.
    2. Action—/or injury to land—when not transferable with the land. Where private lots in a city are physically damaged, or injured in value, by the construction and operation of a railroad in close proximity thereto along -a public street, the right of action, if any exists, is vested in the owner of the lots immediately upon the construction of the railroad, to recover for all damages, past, present and future, and a subsequent grantee of the lots can not maintain an action at all for the proper use and operation of the road, after his purchase.
    3. Nuisance—railroad in public street. A railroad track laid upon a street of a city by authority of law, properly constructed, and operated in a skillful and careful manner, is not, in law, a nuisance.
    4. Eminent domain— compensation for damage to property not tahen. Prior to the adoption of the constitution of 1870, no compensation was required to be paid for property not taken for the public use, but which was damaeed bv the construction and maintenance of public improvements. Under that constitution, an action by a lot owner for a physical injury to his property by constructing and operating a railway in the public street near his lot, may be regarded as a proceeding to recover just compensation for private property damaged for the public good; and in such case the assessment will be in full compensation for all present and future damages, and one recovery will bar any subsequent action for the same cause.
    5. The just compensation to be made for damage to land is intended as an indemnity, not for successive, constantly accruing damages as they may afterwards be suffered, but for all the land owner may suffer from all the future consequences of the careful and prudent operation of the proposed public structure or other improvement.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Mr. William Armstrong, for the appellant:
    Lands and chattels are not, strictly speaking, property, but the objects of property. 3 Bentham’s Works, 221; Eaton v. Railroad Co. 51 N. H. 504; Wynehamer v. People, 13 N. Y. 378; Rigney v. Chicago, 102 Ill. 64.
    The casting of smoke, cinders, etc., in connection with the construction of the railroad, upon the premises of appellee, was a taking of his property. Pumpelly v. Green Bay Co. 13 Wall. 166; Nevins v. Peoria, 41 Ill. 502; Gillham v. Railroad Co. 49 id. 484; Aurora v. Gillett, 56 id. 132; Aurora v. Reed, 57 id. 29; Jacksonville v. Lambert, 62 id. 519; Dickson v. Baker, 65 id. 518; Railway Co. v. Morrison, 71 id. 616; Rigney v. Chicago, supra.

    As there can be but one taking, and as the Chicago, Dan-ville and Vincennes Eailroad Company constructed the road and operated it for several years, it became liable for the entire damage caused by the taking. Mills on Eminent Domain, sec. 216; Railroad Co. v. Erhart, 13 Bush, 669; Railroad Co. v. Grabill, 50 Ill. 241; Railroad Co. v. Maher, 91 id. 312; Decatur Gas Co. v. Howell, 92 id. 19.
    If the original nuisance is of a permanent character, so that the damage is permanent, a recovery not only may, but must, be had for the entire damagei Wood on Limitations, 372; Troy v. Railroad Co. 23 N. H. 101; Powers v. Council Bluffs, 45 Iowa, 652; Railroad Co. v. Millman, 17 Kan. 224; Wood on Nuisances, 889.
    On the completion of the railroad, the damages, if any, to the lots, accrued, and the owner had the right to recover at once for the injury, past present and future. McConnel v. Kibbe, 29 Ill. 483; 33 id. 175; Cooper v. Randall, 59 id. 317; Railroad Co. v. Moffitt, 75 id. 524.
    Mr. H. 0. McDaid, for the appellee;
    This court has adopted a satisfactory rule, both as regards the definition of property and what constitutes a taking thereof. Rigney v. Chicago, 102 Ill. 64.
    Appellant’s counsel is in error” when he says there can be but one taking of property. The taking may be partial or complete, temporary or permanent. . It may be a taking of the corpui, or a deprivation, or a partial deprivation, of the beneficial use, (and in the latter class there may be almost infinite degrees,) or it may carve out of the fee an easement, which may leave the legal title, merely, in the owner, but with the beneficial estate practically obliterated. Tanner v. Valentine, 75 Ill. 627; Wallace v. Butz, 1 Yeates, 574; 4 Dall. 147.
    Again, the quantum and character of the injury determine the scope of the taking. Rigney v. Chicago, 102 Ill. 64.
    So far as this record shows, the Danville road did no act that was injurious to appellee’s property, or did any act that would vest any right of action against it. The laying of its tracks was lawful, and no right of action arose from that cause.
    When the use of a structure is the sole cause of the injury, the damage arising from the use is the cause of action. Crosby v. Berry, 49 Maine, 543; Polly v. McCall, 37 Ala. 20; Branch v. Doane, 17 Conn. 402; Norcross v. Thomas, 51 Maine, 503; Brightman v. Bristol, 65 id. 426.

      The operating of appellant’s railway caused a private nuisance to appellee’s property. Cooper v. Randall, 53 Ill. 24 ; Railroad Co. v. Hall, 90 id. 45.
    Recovery in an action on the case for depreciation of value is equivalent to granting an easement, or parting with an interest in land. Railroad Co. v. Andrews, 26 Kan. 711; Railroad Co. v. Esterle, 13 Bush, 669; Fowle v. New Haven and Northampton Co. 112 Mass. 338.
    One who continues a nuisance commits a new wrong. Cooley on Torts, 611; Nichols v. Boston, 98 Mass. 39.
    The authorities establish that appellant is liable—First, by repairing, and reconstructing and making an effective,, injurious nuisance; second, by going into possession and actually using and operating the repaired and reconstructed railroad; and third, by casting smoke, cinders and ashes on appellee’s premises, and depreciating the value thereof. Weld v. Hornby, 7 East, 198.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was an action on the ease, brought by Adolph Loeb, against the Chicago and Eastern Illinois Railroad Company, on June 9, 1880, in the Superior Court of Cook county, to recover damages sustained from the operation of defendant’s-railroad, by throwing smoke, cinders and ashes upon plaintiff’s premises. Upon a trial by the court, without a jury, there was judgment for the plaintiff for $1200, which was-affirmed by the Appellate Court for the First District, and the defendant appealed further to this court.

The declaration avers, that plaintiff was the owner of three-certain lots in Chicago, with the buildings thereon, which, were used for dwellings, and that defendant wrongfully and. unjustly maintained and operated near by plaintiff’s property, divers railway tracks and switches upon the street, within ten feet of the property; “that steam engines have passed and repassed along the property, and in doing so have unlawfully and unjustly caused to be thrown and deposited in and upon plaintiff’s property, large quantities of smoke, cinders, dust, soot, ashes, sparks of fire, and other substances, and in operating the same they greatly disturbed and vibrated the buildings; that by reason of the close proximity to said premises, the defendant has constantly thrown and deposited upon plaintiff’s property, smoke, cinders, soot, dust and ashes, and other substances, which greatly damaged the same, and depreciated the value of the property. ” There were two pleas,— the general issue, and the Statute of Limitations of five years.

The following facts appear: The Chicago, Danville and Vincennes Bailroad Company was created by a private charter February 16, 1865, and during the year 1872, under its. charter, and the permission of an ordinance of the city of Chicago, it built a railroad on the west side, and on one-of the public streets. It used the same as a railroad until April, 1877, when all its property in this State was sold under a mortgage foreclosure to Messrs. Huidekoper, Dennison & Shannon, who afterwards conveyed the same to the Chicago and Nashville Bailroad Company, which company consolidated with the State Line and Covington Bailroad Company, creating the Chicago and Eastern Illinois Bailroad Company, the defendant. The plaintiff, during the year 1876, purchased the three lots in question, being seventy-five feet on May street and one hundred and twenty-five feet on Carroll avenue, near the said railroad, which railroad had been in constant operation since 1872, and on the lots there were four tenement houses at the time of his purchase. After he purchased the lots, the plaintiff purchased two more houses and moved them on the lots, making, then, six houses on the lots. The plaintiff rented the houses to tenants, and the same have, ever since he became the owner thereof, been occupied by his tenants.

At the trial, the defendant submitted to the court the following proposition of law: “The plaintiff in this case having purchased the property described in the declaration, after the railroad was built and in operation, he can not recover in this action for the matters stated in the declaration, for the reason that the entire cause of action for which he is now suing was in his grantor, and it makes no difference whether his grantor sued for the same or not.” The court refused the proposition,' and the defendant took exception. The soundness of the above proposition is to be considered.

The position taken by appellee is, that the operating of the railway caused a private nuisance to his property; that the construction of the railroad was lawful, and produced no damage, but that the operation of the railroad was the sole cause of the injury, and that, in such case, where the structure in itself does not' cause damage, but its use, then the damage arising from its use is the cause of action; that the grantee of premises upon which a nuisance is erected, is liable for damages ensuing from his maintenance of it, because-every day’s continuance of a nuisance is a new nuisance.

There is quite a weight of authority to the effect, that one may bring suit for the deterioration in value of real property from a nuisance, alleging its permanency, and that by such an action the plaintiff consents to the continuance of the nuisance, and accepts the judgment recovered, as a compensation therefor,—that such recovery will have the effect to give the defendant a permanent right to do the acts which constitute the nuisance, as fully as though there had been a condemnation of the property by the exercise of the power of eminent domain. (Sec. 3, Sutherland on Damages, 413, 414.) Thus, in E. L. and B. S. R. R. Co. v. Combs, 10. Bush, 393, the action was for the throwing of smoke, cinders and ashes on premises, and the court, in speaking of the right to a subsequent recovery, which was denied, say: . “We have heretofore held, in actions for injury to real estate by trespassers, that the plaintiff can only recover compensation for the injury done up to the commencement of the action; but that was in case of injuries not continuing and permanent in their character. The injury in this case, if any, is permanent and enduring, and no reason is perceived why a single recovery may not be had for the whole injury, to result from the acts complained of.” And in J. M. and I. R. R. Co. v. Esterle, 13 Bush. 669, which was also an action for the throwing of smoke, cinders and ashes on land, the court say: By instituting this action for damages, the lot owner, in effect, consents that the railroad company may continue for all future time to use the street as it is now using it, and as consideration therefor to accept such judgment as may be therein rendered. In C. B. U. P. R. R. Co. v. Andrews, 26 Kan. 711, an action to recover damages for interference with an alley, it is said by the court, upon this point: “The plaintiff has chosen to consider the obstruction of the alley as a permanent injury to his lots,—as a quasi condemnation and permanent taking and appropriation of a certain interest in his property. * * * It seems to us that he gives his consent (that his property shall be permanently appropriated) when he brings an action for such damages. It seems to us that he then consents that the railroad company, shall permanently appropriate his property in the alley, for he then brings his action for damages because of such appropriation.” In Fowle v. N. H. and N. R. R. Co. 112 Mass. 334, where the action was for damages caused by the building of a railroad in such a manner that at times the current of a certain stream would be thrown upon the plaintiff’s land, the court say: “And if it (injury) results from a cause which is either permanent in its character, or which is treated as permanent by the parties, it is proper that entire damages should be assessed with reference to past and probable future injury. ” And see Town of Troy v. Cheshire Railroad Co. 3 Foster, (N. H.) 83; Powers v. City of Council Bluffs, 45 Iowa, 652; Kansas Railroad Co. v. Mihlman, 17 Kan. 224.

It has frequently been held by this court, that in an action brought for deterioration in the value of real estate, from a. nuisance of a permanent character, all damages for past and future injury to the property may be recovered, and that one-recovery in such action will be a bar to all future actions for the same cause. Ottawa Gas Co. v. Graham, 28 Ill. 73 ; Illinois Central Railroad Co. v. Grabill, 50 id. 242; Cooper v. Randall, 59 id. 321; Decatur Gas Co. v. Howell, 92 id. 19 Chicago and Alton Railroad Co. v. Maher, 91 id. 312. The-latter was an action of much the same character as the present. It was an action of trespass for damage to the premises-of an adjoining land owner, by the construction and operation of a draw railroad bridge across the Chicago river, om which plaintiff’s property abutted, and which was used as-dock property. After the bridge was constructed, and hack been in operation for considerable time, Maher, who was the-owner when the bridge was built, sold the premises to the plaintiff in the suit, who was his wife. The same question was presented there as here,—whether the plaintiff might recover for damages she had sustained by the continuance-of the obstruction since she purchased. The solution of the-question was found by the court in the determination that the-character of the cause of injury was such, from its permanency, that one recovery would be a bar of all future actions-growing out of the erection of the structure; that Maher, the original owner, might have sued for and recovered all the damages which were sustained by the property from the erection, whether at the time or in the future; that that being-true, the right of action was in him for a recovery of all damages that were or might be caused by the structure, and as-that right could not be transferred to his grantee, the plaintiff, there was in her no right of recovery. The distinction which appellee’s counsel draws in that case, that it was onecí trespass, some piles in the protection of the bridge having-been actually driven in Maher’s land, does not make a satisfactory discrimination. There is no significance in that action having been one of trespass and not case, as our statute has abolished all distinctions between the actions of trespass and trespass on the case. The decision was not rested upon the point of that act of trespass committed being the only cause of action, but upon the permanent character of the structure, as giving a right of recovery once for all, and the continuance of the obstruction since the purchase by the plaintiff being urged as ground of recovery in the case, was met by the court in the manner above stated.

If the above doctrine as to entireness of recovery in one action, where the cause of injury is of a permanent kind, is to be admitted, it should apply peculiarly in this character of case. The cause of damage here is not a nuisance proper.

A railroad track laid upon a street of a city by authority of law, properly constructed, and operated in a skillful and careful manner, is not, in law, a nuisance. Randle v. Pacific Railroad Co. 65 Mo. 332; Danville Railroad Co. v. Commonwealth, 73 Pa. 38. In Illinois Central Railroad Co. v. Grabill, above cited, it was said: “There is no complaint in the declaration of annoyance by the running of engines, the escape of steam, or otherwise, near her (plaintiff’s) premises. Such consequences of the construction and use of railroads must be borne by all living near them, and without hope of redress, for they are inseparable from the purposes and objects of such structures. ” And see Moses v. Pittsburgh, Ft. Wayne and Chicago Railroad Co. 21 Ill. 516. There is no complaint, here, that the railroad is not properly constructed, or that it was not operated in a skillful and careful manner.

It belongs to the idea of a nuisance, that it is abatable. In the original actions assize of nuisance, and quod permittat prosternere, the former being brought against the one who levied the nuisance, and the latter against the alienee of him who levied the nuisance, the judgment thereon, besides damages for the temporary loss sustained, was for an abatement of the nuisance. These actions finally went into disuse, and the action on the case became the remedy, and a party injured by a private nuisance might bring his action toties quoties, until the obstinacy of the party maintaining such nuisance should he overcome by repeated recoveries against him, and the nuisance be .abated. '(3 Blackstone’s Com. 222.) But a railroad built by authority of law, or the operation of it, is .not to be, and should not be, abated. It is built for the ac■commodation of the public. This is the object which justifies "the exercise of the power of eminent domain, and the public welfare demands that there should not be discontinuance of the operation of an authorized railroad. Thus there is not, in such case, the same reason as exists in cases of ordinary private nuisance, for allowance of bringing actions as injury is done, which, as Blackstone says, will have the same effect as assize of nuisance, or quod permittat, “unless a man has a very obstinate as well as ill-natured neighbor, who had rather continue to pay damages than remove the nuisance. ”

For the class of injuries here sued for,—injuries necessarily resulting from the operation of a railroad,—there was no remedy, as we understand, previous to the constitution of 1870. The constitution of 1848 provided only that private property should not be taken for public use without just compensation. The provision for the first time was incorporated in the constitution of 1870, that “private property' shall not be taken or damaged, for public use, without just compensation. Such compensation, when not made by the State, shall be ascertained by a jury, as shall be prescribed by law. ” Before the adoption of the latter constitution, where there was land taken for public use, there was provision for compensation. But where there was other disconnected land not touched by the improvement, but damaged, merely, as complained of in this case, no compensation was provided. To meet this want, the clause of the constitution restrictive of the exercise of the power of eminent domain, provides that private property shall not be taken or damaged for public use without just compensation.

We think it to be within the true intent and meaning of this provision as to damage, that there should be but one proceeding for recovery of damage, in which there should be recovery for the entire damage, past, present and future; that it should be similarly regarded, in this respect, as the provision in regard to the taking of property, where there is but one proceeding, and an assessment of compensation and damages once for all. The two provisions are coupled together, and are .both in restriction of the exercise of the power of eminent domain. In respect to the awarding of compensation for the taking of private property for public use, Mills, in his work on Eminent Domain, sec. 216, says: “The appraisement embraces all past, present and future damages which the improvement may thereafter reasonably produce. ” Had the railroad track in this ease been laid over a portion of one of these lots, then, in the eondemnatiori proceeding for the taking of such portion, compensation would have been assessed for the value of the portion thus taken, and for the damage to the residue of the lot not taken. Such assessment would have embraced all future damage. As well here, in this case of no taking of land, might all the damages, past and future, from the operation of the railroad, be assessed, as they might be to the remainder in such supposed ease of the taking of a part of a piece of land. If there might be successive recoveries, from time to time, of the constantly recurring damages, then, as was said in the Grdbill case, “a similar recovery might be had at every term of the court, and in this shape the plaintiff might recover ten-fold the value of the property. ” We do not think that this constitutional provision intended any such result,—that the just compensation given for the damaging of land might be greater than that for the taking of the land.

The just compensation to be made for damage to land, was, in our opinion, intended as an indemnity, not for successive, constantly accruing damages recoverable, as they may afterward be suffered, but for all the damage the land owner may suffer from all the future consequences of the careful and prudent operation of a railroad; it being the immediate damage done to the land owner’s estate by changing its permanent condition and impairing its present value. See Heard v. Middlesex Canal Co. 5 Metc. 81. The action for damage may be regarded as in the nature of one kind of condemnation proceeding.

Upon this point of estimation of damages, it was said in the Maher cpse, that the structure being permanent in its character, “it could be determined, with a reasonable degree of certainty, how much it depreciated the value of the land, as a permanent structure—how much less it was worth after the erection of the structure than before. ” This measure of" damages is recognized in the cases above cited from Bush, and in C. and I. R. R. Co. v. Baker, 73 Ill. 316, and C. and P. R. R. Co. v. Stein, 75 id. 41, and also in Powers v. City of Council Bluffs, supra, (a case of damage to premises resulting from the improper construction of a ditch,) where the court say: “The plaintiff’s damage was susceptible of immediate estimation. No lapse of time was necessary to develop it. It was the difference between the value of his lots as they would have been if the ditch had been properly constructed, and the value of them as they were, with the ditch as it was, ” (page 657,) and on page 656 it was said: “If the cause of the injury is permanent, the damages can be foreseen and estimated.” With so much of certainty can the benefits or damages to real property which will result from the construction of a railroad, be foreseen, that the mere location of the line of a railroad has an immediate effect upon the value of all real property in the vicinity, in enhancing or depreciating it.

As all damages, then, which will be sustained as the necessary result of the operation of the road, can be immediately •estimated at the time of the construction and putting in ■operation of a railroad, from the effect on the value of the Jand to be damaged, it would seem to answer all just purpose of the land owner, to allow but one action, in which 'there might be recovery for all damages. The allowance of ■successive actions for damage, as it should occur from day to day, as new damage, would seem to serve but the purpose •of harassing, and the wasting of means in expenses of litigation. The law does'not favor the multiplying of actions.

A further view is, that the plaintiff purchased the property ■as it was, with its surroundings. The railroad was there, •and in operation, and plaintiff bought the property with the disadvantage of the railroad. The railroad must be presumed to have decreased the market value of the property ■from what it would have been without the road, and it is to be taken that plaintiff paid but this decreased value for the property, so that, in effect, he has been allowed for all these ■damages resulting necessarily from the operation of the rail-load, in the reduced price which, on that account, he paid for the property; and for him now to recover for such damages in this action, would be getting for himself a double allowance for the same thing,—these damages. See Toledo, Wabash and Western Railroad Co. v. Morgan, 72 Ill. 155; Kutz v. McCune, 22 Wis. 628; Mills on Eminent Domain, sec. 66; Memmert v. McKeen, 112 Pa. St. 315.

The conclusion is, that as the former owner could have ■sued and recovered for the depreciation in the value of the property caused by the railroad, the right of action was in him for a recovery of all damages that were or might be ■caused in the operation of the railroad, and that there is no light- of recovery in his alienee, the appellee.

It follows that there was error in refusing the above proposition of law, and the judgment will be reversed and the ■cause remanded.

Judgment reversed.

Mr. Justice Dickey :

I can not concur in the views here expressed. I do not think our laws give to railroad companies a right by prescription, in five years, without payment of compensation.

Separate opinion by Mr. Justice Soholfield :

As I understand this record, I concur in the judgment rendered; and I also concur, in the main, in the reasoning of the opinion by Mr. Justice Sheldon. To avoid misapprehension, however, I prefer to state, in, my own way, briefly, the grounds on which my conclusion is based.

A railroad in the streets of a city, when not authorized by law, is a nuisance per se; and hence there may, in such cases, be recoveries by those whose property is injured thereby, from time to time, until it shall be abated. But before the adoption of our present constitution it was held, that where there was legislative authority, a city council might authorize the location, construction and operation of railroads in the streets of cities, and that there could be no recovery by adjacent property holders for injuries sustained in consequence of their location, or of their construction, or of their operation, in the usual and' ordinary manner of constructing or operating railroads,—that all damages thus arising were damnum absque injuria. Moses v. Pittsburgh, Fort Wayne and Chicago Railroad Co. 21 Ill. 522, et seq.

The only clause in our present constitution affecting the question, is that which provides that “private property shall not be damaged for public use without just compensation. This court held, in Stetson v. Chicago and Evanston Railroad Co. 75 Ill. 74, (and the ruling has since been followed in kindred eases,) that it is not indispensable to the right to construct and operate a railroad in the streets of a city, that the damages occasioned thereby to adjacent property holders shall have been previously ascertained and paid,—in other words, that a railroad may be lawfully constructed and operated in. the streets of a city, notwithstanding it shall cause injuries to adjacent property holders, the damages resulting from which shall not have been previously ascertained and paid.

It is sufficiently accurate to say, that this railroad is permanent. The company is authorized, by its charter and by an ordinance of the city council, to locate and construct its road in the street. The right to locate and construct a railroad implies the right to operate it in the usual and ordinary manner, and while the constitution requires that damages arising from injuries thereby occasioned shall be compensated, yet, according to the doctrine of the Stetson case, such injuries* are not in the nature of a nuisance, for which the railroad can be abated, but are rather in the nature of a eondition subsequent. It must result, from the railroad being lawfully constructed in the street, and from the company having the implied right to use and operate it as railroads are ordinarily used and operated, that the railroad company has the further necessarily incidental right to injure adjacent property in the manner and to the extent that such ordinary use and operation will necessarily injure it, subject to the right of the .owner to have compensation made therefor. And, the railroad being permanent, the injury must be equally permanent, affecting the property from the time the road is constructed, and a right of action, therefore, then accrues, on the authority of the cases referred to in the opinion of Mr. Justice Sheldon, to recover, once for all, the damages resulting from the injuries sustained to the property. And it is, manifestly, upon this assumption that the General Assembly have provided, in the Eminent Domain act, for the compensation, once for all, of such damages. The authority to lay tracks in the streets, measures the extent of the contemplated probable use; and, on the question of damages to adjacent property, it is, therefore, to be assumed that the tracks authorized to be laid may be used to the full measure of their capacity; and so, at once and ever after, the charaeter and degree of damages sustained by the adjacent property holder is patent to all.

I concede, that if, after the road is constructed, authority be given by the city council, and new tracks shall be laid which were not within the authority conferred by the council when the road was constructed, or that if the tracks laid when the road was constructed shall be subjected to a new .and more burdensome use which was not within the authority ■conferred by the city council when the road was constructed, and adjacent property holders shall be injured by such new tracks or such new and more burdensome use, they may recover for the damages resulting therefrom; and I also con■cede that the adjacent property holders may recover, from time to time, for damages resulting from willful or negligent actg as to which the company would not have been protected by its charter, and the license and authority of the city council, to lay its tracks in the streets, before the adoption of the present constitution. But the vibration caused to appellee’s property, the casting of smoke, soot, etc., upon it, here complained of, I understand, result from the ordinary, prudent use and operation of the railroad, as such roads are, in general, used and operated. The injury for which damages are claimed, is that necessarily to be anticipated as resulting from the mere fact of the prudent construction and operation of a railroad in the streets of a populous city.