text:
    Nora May, Administratrix of the Estate of Thomas May, Deceased, Appellee, v. Belleville Enameling & Stamping Company, Appellant.
    1. Evidence — degree of proof required. Absolute certainty is neither required nor expected before a fact can be said to be proven in a. civil case.
    2. Death by wrongful act — cause of death as question, for jury. In an action under the Occupational Diseases Act, Cahill’s St. ch. 48, ¶ 185 et seq., against an enameling company for the death of a former employee, a sandblaster, the question whether he died from silicosis, a sandblaster’s disease, contracted while in the employ of the company, was a question of fact for the jury.
    3. Master and servant — meaning of wilful violation of Occupational Diseases Act. A wilful violation of duty within the meaning of the Occupational Diseases Act, Cahill’s St. eh. 48, ¶ 185 et seq., signifies a conscious violation.
    4. Master and servant — failure to repair as violation of Occupational Diseases Act. The deliberate operation of a sandblast apparatus by an enameling company, without making adequate repairs to prevent dust accumulating in a sandblast room, is a violation of the company’s duty to a sandblaster as defined by the Occupational Diseases Act, section 1, Cahill’s St. ch. 48, ¶ 185.
    5. Master and servant — evidence admissible under issues in action based on Occupational Diseases Act. The issues made in a declaration in the language of the Occupational Diseases Act, Cahill’s St. ch. 48, ¶ 185, for the death of a sandblaster are broad enough to permit evidence showing sandblast equipment to be defective and out of repair for considerable periods of time as indicating the company did not provide reasonable means or methods for the prevention of occupational disease.
    6. Master and servant — intent of Occupational Diseases Act. The passage of the Occupational Diseases Act, Cahill’s St. ch. 48, j[ 185 et seq., implies that the class of employees, for whose protection it had been intended, had not been able to protect themselves without it.

      7. Master and servant — measure of duty under Occupational Diseases Act. The measure of the duty of an employer under the Occupational Diseases Act, Cahill’s St. ch. 48, U 185 et seq., is no longer reasonable care to furnish a safe place, safe machinery and tools, but, in addition to such reasonable care, he must use in his business the means and methods required by the statute.
    Appeal by defendant from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding.
    Hoard in this court at the October term, 1927.
    Affirmed.
    Opinion filed January 20, 1928.
    Farmer & Klingel, for appellant.
    Clyde D. Miller, for appellee.
   Mr. Justice Newhall

delivered the opinion of the court.

This appeal is prosecuted to reverse a judgment for $7,000 recovered by appellee against appellant under the provisions of the Occupational Diseases Act of Illinois, Cahill’s St. ch. 48, ¶ 185 et seq.

The declaration charged that appellant used a process for cleaning castings known as “Sandblasting”; that in the process sand was forced by compressed air against the castings; that in carrying on the operations the air is filled with fine particles of sand from the sandblasting machine, and that such particles of sand may and do affect the health of persons engaged in the sandblasting work; that said particles collecting in the lungs of the worker, so engaged in sandblasting, cause a disease known as silicosis or “sandblasters’ disease”; that such disease is peculiar to persons engaged in sandblasting.

The declaration further charged that appellant, well knowing the premises, wilfully failed and refused to adopt and provide reasonable and approved devices, means, or methods for the prevention of such disease, in that it did not provide means for carrying off the particles of sand in the air, or blowers of sufficient suction to carry off the air impregnated with sand, or guards of any kind to keep the air from becoming filled with sand, nor did it provide sufficient masks or respirators to keep the employees engaged in such work from inhaling the sand particles.

The declaration further charged that appellee’s intestate was employed by appellant as a sandblaster from January 1,1923, to February 13, 1926, and, while in appellant’s employ, he became diseased because of his lungs becoming filled with the particles of sand, due to his employment as a sandblaster, and that he died from such disease on September 9,1926.

Appellant was engaged in the operation of an enameling plant, and, as a part of the business, it was necessary to clean and render smooth certain iron castings before applying the enamel. The work of cleaning the castings was done by means of sandblasting.

The sandblasting equipment used by appellant consisted of a sandblast room made of sheet iron about eight by ten feet and about seven feet high, with no outside opening except a door on one side, which was used for taking the castings in and out and for the purpose of ingress and egress. ' The ceiling of this room was slotted for the purpose of admitting air, and the floor was grated to permit the sand and air to be drawn down out of the room, the sand falling into a hopper underneath the grating.

The castings were placed on a table in this room, and by means of a hose used by the operator, the air and sand were forced under pressure against the castings in order to remove the grit and dirt therefrom. The sand used in the process of cleaning fell through the grating in the floor into a hopper, where it was carried by means of air suction through certain pipes into a separator, in which the clean sand was supposed to be removed and used again.

The air, sand and dust particles in the room were supposed to be removed by a large revolving ventilating fan, which was calculated to change the air in the sandblast room ten times per minute.

The men engaged in the sandblasting worked in pairs, relieving each other at the end of each half hour during an 8-hour shift.

A helmet, respirator and goggles were furnished employees by appellant to use when engaged in working in the sandblast room. The evidence offered by appellant showed that the equipment, as originally installed, was of standard make, and was quite extensively used by manufacturers for cleaning castings.

The evidence showed that appellee’s intestate (Thomas May) was in the employ of appellant as a sandblaster continuously from February, 1923, to February, 1926, when he quit work on account of some disagreement with his foreman.

Some time after leaving his employment, the deceased became sick, was afflicted with severe coughing spells, and came under the doctor’s care in July, 1926.

Dr. Portuondo testified for appellee that he treated the deceased from July 4, 1926, until September 4, 1926, and that, at the time of his death, he was suffering from a chronic inflammation of his lungs and from silicosis.

The doctor testified that silicosis is supposed to be a chronic inflammation of the lungs, due to stone getting into the lungs, irritating them, and, as a result, a tissue forms around the foreign substance, and the lungs are unable to get air; that when he first treated the deceased, he had symptoms of lung trouble and kidney disease, was having a cough and shortening of breath; that the main trouble was nephritis, and that he issued a death certificate giving the cause of death as interstitial nephritis, although he had both lung trouble and kidney disease at the time; that he was so swollen that he called it kidney disease, but could have called it lung disease as well.

In February, 1927, about five months after May’s death, his body was exhumed, and three doctors held an autopsy. They testified on the trial that the condition of May’s lungs showed that he had silicosis or sandblasters’ disease; that there were no signs of tuberculosis in the lungs; that there was a fibrous and connective tissue in the lungs due to deposit of silicon, and that there was no other cause which would contribute to this condition outside of silicosis.

Dr. Gradwohl testified for appellee that most of the lungs had no air in them; that the air spaces were obliterated or destroyed by the growth of fibrous tissue, and that there was only a slight degree of nephritis.

Dr. Frein, a witness for appellee, testified that he was called in consultation with the attending physician on August 22, 1926, and that at that time an examination showed that May’s lungs were consolidated; that he had a fever of 100 degrees, and that the kidney examination showed two plus albumin, sugar negative.

Dr. Stiehl, a witness for appellee, testified that he assisted in the post-mortem; that the heart and kidneys were normal; that silicosis is not found among all classes of occupations, but is peculiar to stonecutters and sandblasters.

All of the medical witnesses, who testified, were offered in support of appellee’s case.

The first point urged by appellant is that appellee’s evidence does not prove the allegation in the declaration that May died of silicosis.

Absolute certainty is neither required nor expected before a fact can be said to be proven in a civil case.

The question whether May died from silicosis, contracted by him while working for appellant, was a question of fact for the jury to decide from the evi-' dence, and, after careful examination, we are of the opinion that the evidence in the record is sufficient to-establish the "fact that May died from silicosis or sandblasters’ disease contracted while in the employ of appellant; and that such disease is peculiar to those engaged in sandblasting work, to which workers are not ordinarily exposed in other lines of employment.

The determination of these questions of fact was for the jury to pass upon, and we do not feel warranted in setting aside the verdict of the jury on these propositions. (Dandurand v. Hydrox Co., 222 Ill. App. 267.)

The second point, which counsel urge for reversal, is that appellee failed to prove the charge of wilful failure of duty, alleged in the declaration, in substantially the same language as is contained in section 1 of the Occupational Diseases Act, Cahill’s St. ch. 48, ¶ 185.

A wilful violation, within the meaning of the statute, signifies a conscious violation. An act consciously omitted is wilfully omitted within the meaning of the word “wilful.” (Kellyville Coal Co. v. Strine, 217 Ill. 516.)

The testimony of several witnesses for appellee tended to show that, while the sandblast room was in operation, during the time May worked for appellant, the pressure of the air and sand against the castings created a dust which remained in the sandblast room while the operator was working; that the suction equipment was operated over quite a period of time while it was faulty; that frequently holes were worn in the air pipes and, as a result, the suction pipes did not remove the sand dust from the room; that, because of worn pipes, the air pressure was reduced, and the sand was not removed from the room, and, as a result, the operators inhaled the fine particles of sand; that sometimes the sand chute would be clogged for a week, and the employees continued to operate the same while in disrepair; that complaints of the defective equipment were made to the foreman; that, pending the fixing of the apparatus, rags were put in the holes as a temporary repair.

The testimony offered by appellant tended to show that the sandblast equipment and devices used by it were standard and approved devices in the trade; that, by reason -of the air and sand being constantly used under high pressure, frequent repairs were necessary in order to obtain efficiency from the sandblast apparatus; and that, pending the making of repairs, more or less dust would accumulate in the sandblast room; and that, at times, this was difficult to prevent.

The evidence was conflicting as to whether the- repairs were promptly made, and whether the sand and dust were knowingly allowed to accumulate and to. permeate the sandblast room to the serious detriment of the health and safety of the employees of appellant. To deliberately operate the sandblast apparatus, without making adequate repairs to prevent the dust accumulating in the sandblast room, was a violation of appellant’s statutory duty as defined in section 1 of the Occupational Diseases Act, Cahill’s St. ch. 48, ¶ 185.

Counsel contend that the proof offered by appellee, showing the sandblast equipment to be defective and out of repair for considerable periods of time, was not germane to the issues made by the declaration, in that the same did not charge failure to keep the equipment in repair.

The charge made in the declaration is in the very language of the statute, and the issues made were broad enough to permit this evidence tending to show that appellant did not provide reasonable means or methods for the prevention of such occupational disease.

The duty enjoined upon appellant by the statute is a continuing duty, and a device, which does not properly function because of lack of adequate repair, cannot be said to be a reasonable means for the prevention of industrial disease.

The passage of the statute in question implies that the class of employees, for whose protection it was intended, had not been able to protect themselves without it.

The duty of the master has been changed. He may no longer use such machinery and appliances as he chooses. The measure of his duty is no longer reasonable care to furnish a safe place, safe machinery, and tools, but, in addition to such reasonable care, he must use in his business the means and methods required by the statute. (Streeter v. Western Wheeled Scraper Co., 254 Ill. 244, 256.)

In Dandurand v. Hydrox Co., supra, it was held that a “plaintiff was justified in asserting and proving, or ’attempting to prove, the failure of the defendant to observe the protective measures or use the devices mentioned in various sections of the act under the theory that all such devices, means or methods are fairly included within the category of ‘reasonable and approved devices, means or methods for the prevention of such industrial or occupational diseases, ’ incidental to the work in question, as specified in section 1 of the act,” and it was shown that the apparatus so used by the employer was defective for want of timely and adequate repair.

It is next contended that the court erred in giving and modifying certain instructions. These instructions were not peremptory in their language, but'required the jury to find affirmatively those provisions of the statute, which were essential, in order to recover for a wilful violation.

We believe these instructions were proper, and that no error was committed by the court in modifying and giving them as modified.

For the reasons above stated, the judgment of the circuit court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Newhall

license: Public Domain

text:
    Charles J. Dodson, Appellee, v. Loaleen Mutual Benefit Association, Appellant.
    1. Agency — method of proving fact of agency or authority of agent. The fact of agency or the authority of the agent cannot be established by showing what the agent said or did, and the power of the agent can be proved only by tracing it to the source of the authority, the principal, by some word or act of such principal.
    2. Insurance — authority of agent not provable by declarations of agent. The authority of a supposed agent to represent a life insurance company cannot be proven by evidence of the declarations and acts of the agent.
    3. Insurance — knowledge of insured’s health not provable by declarations of supposed agent. Knowledge by a life insurance company of the insured’s tubercular condition at the time of his application cannot be proven by evidence of the declarations and acts of a supposed agent to whom the information was alleged to have been given.
    4. Insurance — admissibility of affidavit for continuance in proof of fact of agency. An affidavit for a continuance, stating that an absent witness would testify that a supposed agent was the agent of a life insurance company, is a mere conclusion and is inadmissible to prove the fact of agency in an action on a life policy.
    5. Insurance — materiality of applicant’s representation of health. A representation by an applicant for life insurance that he had never had tuberculosis is material.
    6. Instructions — based on incompetent evidence. It is error to grant instructions based upon inadmissible • and material evidence.
    Appeal by defendant from the Circuit Court of Marion county; the Hon. William B. Wright, Judge, presiding.
    Heard in this court at the October term, 1927.
    Reversed and remanded.
    Opinion filed January 20, 1928.
    C. W. Creighton and June C. Smith, for appellant.
    Holt & Holt, for appellee.
   Mr. Justice Newhall

delivered the opinion of the court.

Appellee sued appellant, a mutual benefit insurance association, on an insurance policy on the life of Drug R, Dodson. Trial was had before a jury, resulting in a verdict in favor of appellee for $1,000, upon which judgment was entered.

The declaration consisted of two counts, charging that on the 19th day of June, 1925, appellant executed and delivered to Drue R. Dodson its certificate of insurance, whereby it agreed, upon satisfactory proof of death of Drue R. Dodson, to pay appellee $1,000, provided the said Drue R. Dodson did not misrepresent the facts in making application for said insurance, and that the insured had kept and performed all the terms and conditions of said policy of insurance.

To this declaration appellant pleaded the general issue and special pleas, which, in substance, alleged that the certificate of insurance was obtained by fraud and circumvention, in that the insured, in the written ■application for insurance, knowingly, falsely, and fraudulently represented that he was sound physically, and had never had tuberculosis; and that appellant, relying upon the false statements in the application and having no knowledge that the same were false, issued the policy.

To these pleas appellee filed replications, denying the facts alleged in the pleas, and averring that Drue R. Dodson informed the agent of appellee as to his condition of health, and that appellant had full knowledge of all the facts as to the health of the insured.

The evidence on the part of appellant shows that on the 17th day of June, 1925, J. M. Henson, the duly authorized field manager of appellant in the city of Salem, in Marion county, solicited Drue R. Dodson to become a member of the Loaleen Mutual Benefit Association, appellant; that at that time Drue R. Dodson made application to the said J. M. Henson, who asked the questions as they appeared in the printed application form;, that the answers to the questions were written thereon by the said Henson; that the application was then signed by Dodson, witnessed by Henson’s signature, and mailed to the home office of appellant at Fairfield, Illinois; that on the 19th day of June, 1925, the benefit certificate sued on was mailed to Drue R. Dodson, at Salem, Illinois; that in said application the insured represented that he was sound physically, and that he had never had tuberculosis. Henson testified that from his observation of the insured he believed he was answering truthfully, and relied upon his answers to his questions and upon the signed application of the insured.

Ira D. Gardner, secretary of appellant, testified that he received the application in the usual course of business, gave it a distinctive number, then issued the policy sued on, with the same number as that placed on the application, and mailed the same to the insured at Salem, Illinois.

Dr. Klosterman, witness for appellant, testified that he treated the insured on June 1,1925, and found that he Avas suffering from tuberculosis, and that he informed the insured of his condition at that time; that he treated the insured again on June 11, 1925, and later during the months of July and August; that he had suffered quite a while before he came under the doctor’s observation.

Dr. Porter, witness for appellant, testified that he treated the insured on two occasions in the month of March, 1925, and that he then diagnosed his trouble as incipient tuberculosis; that he had a very severe cough, with -a slight temperature; that he was in a badly run down condition, and had a history of having had influenza.

Appellee attempted to show upon the trial that the application, upon which the certificate was issued, was made out and taken by one Frank Taylor, an alleged agent and solicitor for appellant; that the insured had informed the said Taylor that he was not sound physically; that his physician, Dr. Klosterman, had informed the insured that he had tuberculosis; that Taylor filled out the application, and answered the questions himself without requiring the insured to answer; that the insured signed the application, which was then delivered by him to Taylor.

The foregoing claims as to the agency of Taylor and the knowledge of appellant of the insured’s physical condition were sought to be established by the declarations of Frank Taylor, made to John Dodson, father of the insured, who claimed to be present when Taylor solicited the insurance.

This evidence was objected to by counsel for appellant and overruled by the trial court, and error is now assigned on this ruling.

The fact of agency or the authority of .the agent cannot be established by showing what the agent said or did, and the power of the agent can only be_ proved by tracing it to the source of authority — the principal —by some word or act of such principal. (Merchants’ Nat. Bank of Peoria v. Nichols & Shepard Co., 223 Ill. 41.)

An agency cannot be proved by the mere declarations of the supposed agent, when the fact of the agency is in issue. (Patton v. Toung, 233 Ill. App. 515, 518; Proctor v. Tows, 115 Ill. 138; King v. Chicago, R. & Q. R. Co., 235 Ill. App. 401, 407; Meyer v. Iowa Mut. Liability Ins. Co., 240 Ill. App. 431.)

The admission in evidence of the declarations and acts of Frank Taylor, the supposed agent of appellant, by the witness, John Dodson, was erroneous.

Appellee also sought to prove that Frank Taylor was an authorized agent of appellant by the affidavit of Anna Dodson, which was read to the jury after objections thereto were made by appellant and overruled by the court. Prior to the trial, appellee moved for continuance on the ground of the absence of. Anna Dodson, an alleged material witness on behalf of appellee.

Counsel for appellee read to the jury that part of the affidavit of Charles J. Dodson in reference to what counsel expected to prove by the absent witness, Anna Dodson, and which counsel for appellant admitted she would testify to if she were present.

The affidavit, which counsel read, in part, recited:

“That she (Anna Dodson) was present at the time the application for certificate of membership in the defendant association was made, and heard the said insured, Drue E. Dodson, tell one Frank Taylor, the agent of the said association then and there soliciting said insurance and taking the said application, and who was then and there representing the said insurance company * * *.”

Counsel for appellant objected to that part of the affidavit above quoted, which objection was overruled. It is urged that the statement in said affidavit as to the agency of Frank Taylor is a mere statement of a conclusion, was incompetent evidence, and was insufficient to prove the agency of Frank Taylor in order to establish responsibility upon appellant for the acts and declarations of Taylor.

The statute authorizes only so much of the affidavit to be read to the jury as states that which the witness, if present, would, under the rules of evidence, be permitted to state upon the witness stand.

If the witness, Anna Dodson, had been present in court, she would not have been permitted to state her conclusions as to the supposed agency of Frank Taylor. (Chicago City Ry. Co. v. Duffin, 126 Ill. 100; Slate v. Eisenmeyer, 94 Ill. 96; City of Aurora v. Scott, 82 Ill. App. 616; Chicago Sign Printing Co. v. Wolf, 135 Ill. App. 366.)

Under the foregoing authorities, that part of the affidavit stating that Frank Taylor was the agent of appellant was incompetent evidence, and it was error to read the same to the jury.

The record does not disclose that there was any competent evidence establishing the fact that Frank Taylor was ever the authorized agent of appellant. In fact, the evidence on the part of appellant shows that appellant never had in its service any man, as agent, by the name of Frank Taylor.

In Metropolitan Life Ins. Co. v. Moravec, 214 Ill. 186, it was held by the court that the statement in an application that the assured had never had heart disease was a material representation, and, if false, would avoid the policy, and that it was not essential that, in order to maintain that defense, the company should also prove that the assured had heart disease at the time the application was signed.

In Hancock v. National Council of Knights and Ladies of Security, 303 Ill. 66, it was said: “Whether a representation is material is determined by the question whether reasonably careful and intelligent men would have regarded the fact stated as substantially increasing the chances of the event insured against, so as to cause a rejection of the application or different conditions. That the representations in this case as to either of the parents of Patrick Foley having-been afflicted with consumption and as to his having an habitual cough met the test and were material would necessarily be agreed to by everybody. * * * A misrepresentation is a statement of something as a fact which is untrue and material to the risk, and which the insured states, knowing it to be untrue, in an attempt to deceive, or which he states positively is true without knowing it to be true and which has a tendency to mislead.”

To the same effect are the following cases: Hranicka v. Prudential Ins. Co., 235 Ill. App. 257; Joseph v. New York Life Ins. Co., 219 Ill. App. 452; United States Fidelity & Guaranty Co. v. First Nat. Bank of Dundee, 137 Ill. App. 382.

The medical evidence of appellee tended to shoAV that the insured died on September 13, 1925, from influenza of short duration; that the doctor, who attended him during his last illness, suav the insured for the first time about the 9th day of September, 1925, and testified that he was not suffering from tuberculosis that he could discover at that time. No other evidence was offered by appellee tending-to show that he had not had tuberculosis at or prior to the making of application for insurance on June 17, 1925. Appellee’s theory is that, if the insured was suffering from tuberculosis at that time, appellant, through the medium of Frank Taylor, had full notice and knowledge thereof, but we hold that evidence offered for the purpose of proving Taylor’s agency was incompetent and reversible error.

Appellee’s instructions, numbered one to four, inclusive, were based upon proof of incompetent evidence as to Taylor’s alleged agency for appellant, and it was error to give them under this state of the record.

For the reasons above stated, the judgment of the trial court is reversed, and cause remanded for new trial.

Reversed and remanded.


text:
    William P. Launtz, Appellant, v. Russek Furniture Company, Appellee.
    1. Contracts — acts of parties as aid to construction. Where, from the words used, doubt arises as to the meaning of a contract, the acts of the parties may be taken into consideration as an aid in ascertaining the meaning intended by showing the interpretation placed upon the contract by the parties themselves.
    2. Landlord and tenant — consideration of acts and letters of parties in construing written lease. Where it is doubtful, from the terms of a written lease, when the lease expires, the acts and letters of the landlord and the tenant, treating the lease as expiring on a particular day, may be considered as indicating an intent in the lease that it should end on such day.

      3. Landlord and tenant — weight of evidence as to renewal of lease. A finding that there was no oral agreement to renew a written lease will be sustained where there was no corroboration of the landlord’s testimony of the existence of such agreement, which testimony was disputed by the tenant.
    4. Former adjudication — judgment in action for one month’s rent as res adjudicata of subsequent action. A judgment for a tenant in an action by the landlord for one month’s rent is res adjudicata of a subsequent action between the same parties for subsequent monthly instalments of rent, the same questions being involved in both actions.
    5. Former adjudication — identity of issues and parties. Where a fact necessarily involved in litigation has been decided in a suit, and again becomes a matter at issue between the same parties in a subsequent suit, the former judgment is conclusive as- to such matter.
    Appeal by plaintiff from the City Court of Bast St. Louis; the Hon. Silas Cook, Judge, presiding.
    Heard in this court at the October term, 1927.
    Affirmed.
    Opinion filed January 20, 1928.
    William P. Launtz, pro se.

    Kramer, Kramer & Campbell and R. E. Costello, for appellee.
   Mr. Justice Newhall

delivered the opinion of the court.

This suit was commenced by appellant to recover from appellee rent for the months of June to September, 1926.

The declaration alleged that on March 29, 1923, appellant, being the owner of a certain building in the city of East St. Louis, entered into a written lease for a part thereof with appellee; that on June 5, 1925, appellee agreed in writing to lease additional space in said building; that appellee occupied the premises mentioned in the lease until May 1, 1926, and paid appellant the agreed rental therefor up to May 1, 1926; that on the 29th day of March, 1926, by verbal agreement the written leases were extended for a period of three years at the same'monthly rental, and that appellant refused to pay for the months of June to September, 1926.

Appellee pleaded the general issue and two special pleas. The first plea set up that the alleged oral extension of the two written leases, being for more than one year, were within the statute of frauds, Cahill’s St. ch. 59, and void.

The second special plea alleged former adjudication as to rights of the parties under the leases in question in a suit commenced by appellant to recover rent for the month of May, 1926, in which suit the issues were decided adversely to appellant and final judgment for costs entered against him.

The evidence was heard before the court, and showed that appellant was the owner of certain store-property, a part of which he leased to appellee, which was engaged in the retail furniture business in Bast St. Louis.

The first lease between the parties was dated March 29, 1923, and, after describing the premises to be leased, it then provided that certain alterations in the building were to be made at the lessor’s expense.

The leases contained the following clauses, namely:

“The rent for said premises is to commence on the first day of May, 1923, at a monthly rental of $275 per month, payable monthly in advance on the first day of each month. * * *
“Lessor hereby agrees to donate to lessee one month’s rent, in order to enable him to, in part, pay for such changes and decorations, as he may feel disposed to make. * * *
“This lease is to continue for the period of three years, with the option of three additional years at the same rental. Lessee to give lessor in writing ninety days notice, of his election to continue for the three years after the expiration of the said three years, be. fore the expiration of said three years, * * *
“Lessee is hereby permitted to take possession at any time prior to the beginning of the pay term of this lease in order to arrange and prepare the same for his occupancy as he may see fit.”

Appellee paid the monthly rental under this lease, and on June 5, 1925, the parties entered into a second lease for an additional part of appellant’s building. The second lease provided that it was to commence June 1, 1925, and to continue for a period of eleven months, with a provision for renewal for a period of three years, in the same manner as the prior lease, and both of said leases, in event of renewal, were to expire on the same date.

On March 25, 1926, appellee wrote appellant that it would continue its business for the next three years under the leases and according to the options. On the same date appellant replied to appellee’s letter stating that, in view of the fact that appellee did not notify him 90 days prior to the expiration of the lease, he was not then willing to renew the leases at the same rate, unless appellee would pay its own light bills.

Appellant testified that he had a conversation with the president of appellee on March 29, 1926, in which he agreed to the renewal lease under the same terms as the original leases. This is denied by appellee’s president.

On April 9, 1926, appellee wrote appellant that it was not willing to renew the leases in accordance with the terms of appellant’s letter of March 25, 1926, and that its lease would expire on April 30, 1926; that it. would vacate the premises on that date, which it did, surrendering the keys to appellant on May 1, 1926.

On May 11, 1926, appellant filed a suit before a justice of the peace to collect the May rent, and, on appeal to the city court of East St. Louis, a final judgment was rendered in favor of appellee.

Propositions of law were submitted by both parties. The trial court held that both leases expired on April 30,1926; that there was no renewal of the leases, and rendered a judgment against appellant for costs.

Two questions are presented for decision on this appeal: First, was there a legal renewal of the two leases for a further period of three years. Second, whether or not the issues in controversy were adjudicated in the former case.

The lease of March 29, 1923, provided that the rent was to commence May 1, 1923; that one month’s rent was donated to lessee, who actually went into possession April 30,1923; that the lease of June 5,1925, provided that the rent therein mentioned should commence June 1,1925, and should continue for a period of eleven months in order that it would expire on the same date as the lease of March 29, 1923, and that both parties, by their correspondence and acts, treated both leases as expiring April 30, 1926.

Where, from the words used, doubt arises as to the meaning of a contract, the acts of the parties may be taken into consideration to aid the court in ascertaining the meaning intended by showing the interpretation placed upon the contract by the parties themselves. (Finch v. Theiss, 267 Ill. 65.)

Holding, as we do, that the leases expired on April 30, 1926, then there is no merit in appellant’s contention that appellee held over after the expiration of its term.

Appellant’s affidavit to his declaration was based upon the claim of an oral agreement to renew and not upon an implied contract arising because of a holding over after the expiration of the tenant’s lease.

The alleged oral agreement to renew was disputed by appellee, and, there being no corroboration of appellant’s testimony, we agree with the trial court on its finding on this question.

Appellee pleaded a former adjudication of appellant’s right to recover in a suit brought by appellant for the monthly instalment of rent alleged to be due for the month of May, 1926.

The validity of the renewal of the leases in question was litigated in the former suit, and the same questions here involved were decided adversely to appellant.

Where a fact necessarily involved in litigation has been decided in a suit, and again becomes a matter at issue between the same parties in a subsequent suit, the former judgment is conclusive as to such matter. (Louisville, N. A. & C. Ry. Co. v. Carson, 169 Ill. 247; Buerger v. Buerger, 317 Ill. 401.)

We are of the opinion that the trial court did not err in its finding and conclusions, and the judgment is accordingly affirmed.

Affirmed.


text:
    Edna Weber, Appellee, v. Louisa Sneeringer, Appellant.
    1. Appeal and error — when jurisdiction of reviewing tribunal attaches. An appeal allowed by a trial court from a judgment for money is, in contemplation of law, pending in the appellate tribunal the moment the appeal bond is executed and filed with the clerk of the trial court.
    2. Appeal and error — orders of trial court after transfer of ease to reviewing tribunal. After an appeal bond is filed in a trial court which has allowed an appeal from a monetary judgment, such court is without authority to enter any further orders until the appeal is properly disposed of in the Appellate Court.
    3. Appeal and error — time of presentation of bill of exceptions. A bill of exceptions must be presented to the trial judge for signature during the term at which the cause is disposed of, or within such further time as shall be limited by the court by an order entered during that term.
    4. Appeal and . error — presentation of bill of exceptions at subsequent term. A trial judge has power at a term, subsequent to the one at which the cause is disposed of, to enter an Order extending the time in which to file a bill of exceptions, providing the order granting extension was within the time originally given therefor; but if the term at which the cause was disposed of is adjourned, and thereafter the period first fixed for filing the bill of exceptions expires without an order providing for extension of time, the court, subsequent to the expiration of that period, is without jurisdiction to make an order extending the time or to sign a bill of exceptions as to matters occurring previous to or at the time of entry of judgment.
    5. Appeal and error — presentation of Mil of exceptions when reporter’s notes are lost or stolen. The fact that the stenographic notes taken during a trial by the court reporter are lost or stolen, and that, consequently, he is unable to furnish a transcript of the evidence, does not relieve the appellant of the duty of presenting a bill of exceptions to the trial judge within the time fixed by him, or, if such time is insufficient, to make application prior thereto for an extension of time to file such bill.
    6. Appeal and error — settlement of Mil of exceptions when reporter’s notes are lost or stolen. Where the stenographic notes taken by the court reporter during a trial are lost or stolen it is the duty of the trial judge, upon the presentation of a bill of exceptions within the time fixed, to settle and certify such evidence; and if the judge cannot remember the evidence, he may send for the witnesses and examine them again, or, in some other manner, determine the facts to be incorporated in the certificate.
    7. Appeal and error — presumption in absence of bill of exceptions. It will be presumed on appeal in suit at law, in the absence of a bill of exceptions, that the evidence was sufficient to support the judgment.
    8. Appeal and error — matters, reviewable in absence of MU of exceptions. Only such errors as appear on the face of the record can be considered or passed upon by the Appellate Court, in the absence of a bill of exceptions.
    9. Pleading — necessity of swearing to replication. It is proper to refuse to strike from the files an unsworn replication to a plea in an action for rent, since the statute does not require a sworn replication.
    10. Pleading — waiver of rejoinder. A formal rejoinder is waived by a defendant in electing to proceed to trial without further pleading after a demurrer to a replication is' overruled.
    11. Pleading — amendment of replication after confessing a demurrer. A plaintiff can amend a replication after confessing a demurrer thereto.
    12. Saving questions for review — necessity of objecting to the state of the pleadings. An appellant cannot raise for the first time on appeal that the issues were confused and misleading, or that he was taken by surprise, from the state in which the pleadings were in, where he proceeded to trial without objection.

      Appeal by defendant from the City Court of Alton; the Hon. L. D. Yager, Judge, presiding.
    Heard in this court at the October term, 1927.
    Affirmed.
    Opinion filed January 20, 1928.
    J. B. Streuber, for appellant.
    Wm. P. Boynton and Wm. M. P. Smith, for appellee.
   Mr. Justice Newhall

delivered the opinion of the court.

This is an appeal brought by appellant to reverse a judgment rendered by the city court of Alton against appellant for the sum of $75 for rent of a store building leased by appellant.

The declaration averred that appellant was a tenant of appellee in a building used for a millinery store at an agreed monthly rental of $85; that the rental was paid to August 11, 1926; that appellant occupied the same from August 11, 1926, to September 17, 1926, when the same was vacated by appellant. Affidavit of claim was filed with the declaration claiming $170 for two months’ rent.

Pleas of general issue and three special pleas, verified, were filed. The special pleas alleged payment and eviction of appellant by wrongful entry of appellee’s agents in remodeling the store premises in question. Similiters were filed by appellee to the first and second pleas, and replications to the third and fourth pleas.

After these pleadings, a jury was impanelled, and appellee offered proof, and rested her case. Appellant then made a motion to strike the replications from the files, because they were not verified, and this motion was overruled by the court. Appellant then demurred to the replications. The demurrer to the first three replications was overruled. Appellee confessed the demurrer to the fourth replication, and leave was granted to file instanter a new replication to the fourth plea, to which appellant demurred, and was overruled.

The trial before the jury was then resumed, and verdict was rendered in favor of appellee for $75 on December 18, 1926, one of the days of the December term. Later during the same term, on January 21, 1927, a motion for a new trial was made by appellant, which was denied by the court on February 19, 1927, being the last day of the said December term. Judgment was entered on the verdict, to which appellant excepted, and was allowed an appeal upon filing bond within 30 days and bill of exceptions within 60' days. Appellant filed her appeal bond March 12, 1927, which was approved by the clerk of the city court on the same day.

On the 17th day of March, 1927, being one of the days of the February term, 1927, of the city court of Alton, appellant filed in the court below a motion to vacate the judgment entered at the previous term and to grant a new trial, on the ground that the stenographic notes of the court reporter, taken during the trial, had become lost or stolen, and that counsel was, therefore, unable to prepare a proper bill of exceptions for use on the appeal to this court.

On March 19, 1927, appellee moved to strike appellant’s motion entered March 17, 1927, because of want of jurisdiction in the trial court, which motion was allowed by the court on June 18, 1927, to which appellant excepted, and prayed an appeal, which was allowed by the court; and it was ordered that the appeal bond theretofore filed and approved stand on this appeal. Bill of exceptions was tendered and signed as of June 20, 1927, purporting to contain the affidavits, proceedings, and rulings had by the court on the hearing of the motion to vacate said judgment.

On April 23,1927, the record shows that the time for filing bill of exceptions expired April 20,1927, and that no extension of time had been requested prior thereto.

Appellant contends that the trial court erred in striking from the files her motion to vacate the judgment entered at the previous term, and to grant a new trial, because the stenographic notes made by the reporter at the trial had become lost or stolen.

An appeal allowed by a trial court is, in contemplation of law, pending in the appellate tribunal the moment the appeal bond is executed and filed with the clerk of the trial court.

After the appeal bond was filed in the court below, perfecting appellant’s appeal from the judgment entered February 19, 1927, the trial court was without authority to enter any further orders until the appeal was properly disposed of in the Appellate Court. (David v. Commercial Mut. Acc. Co., 243 Ill. 43; People v. Wiley, 284 Ill. 186.)

A bill of exceptions must be presented to the trial judge for signature during the term at which the cause is disposed of, or within such further time as shall be limited by the court by an order entered during that term; and the court has power at a subsequent term to enter an order extending the time in which to file a bill of exceptions, providing the order granting extension was within the time originally given therefor ; but, if the term, at which the cause was disposed of, is adjourned and thereafter the period first fixed for filing the bill of exceptions expires, without an order providing for extension of time, the court, subsequent to the expiration of that period, is without jurisdiction to make an order extending the time or to sign a bill of exceptions as to matters occurring previous to or at the time of entry of judgment. ((Richter v. Chicago & E. R. Co., 273 Ill. 625; People v. Ellsworth, 261 Ill. 275; Franklin Park v. Franklin, 228 Ill. 591.)

The record discloses that the 60 days’ time for filing “bill of exceptions,” as granted by the court when judgment was entered on February 19, 1927, expired April 20, 1927, and no extension of time was granted, or requested by appellant prior thereto.

Appellant’s motion to vacate the judgment and grant a new trial was entered in open court on March 17, 1927, at which time appellant’s counsel had been fully advised that the reporter was unable to find his stenographic notes taken during the trial, and was consequently unable to furnish a transcript of the evidence. This state of facts did not warrant appellant in neglecting to present a bill of exceptions within the time fixed by the court, viz, April 20, 1927, or, if such time was insufficient, then to make application prior thereto for an extension of time to file such bill of exceptions.

Even though the reporter’s notes had become lost or stolen, it did not relieve appellant of the duty of presenting such bill of exceptions within the time fixed, and it then became the duty of the trial judge to settle and certify such evidence. If the trial judge could not remember the evidence, he might send for the witnesses who testified before him and examine them again, and in this or some other mode determine the facts to be incorporated in the certificate.

The judge must determine judicially, in the first instance, what the bill of exceptions shall contain, that it may truly and fairly present the facts and rulings occurring on the trial of the cause; and may, in the first instance, resort to all available means to determine the fact and to secure accuracy in making up the record. (People v. Chetlain, 219 Ill. 248; People ex rel. Munson v. Gary, 105 Ill. 264.)

There is no evidence in the record that appellee or her counsel had any knowledge of the loss of the reporter’s notes, and the charges made against appellee of other matters foreign to the case were wholly unjustified and are highly improper.

Motion for new trial and alleged errors in giving and refusing instructions must be preserved in bill of exceptions before any question can arise in a court of review. (Greenwell v. Hess, 298 Ill. 459.)

. In suits at law, in the absencé of a bill of exceptions, it will be presumed on appeal that the evidence was sufficient to support the judgment. (Miller v. Glass, 118 Ill. 443; Clark v. Burke, 172 Ill. 109; Eggleston v. Royal Trust Co., 205 Ill. 170.)

In the absence of a proper bill of exceptions, only such errors as appear on the face of the record can be considered or passed upon by this court. (Kalish v. City of Chicago, 219 Ill. 133; Helmuth v. Bell, 150 Ill. 263.)

The first error assigned, which appears on the face of the common-law record, is that the trial court erred in refusing to strike from the files appellee’s unsworn replication, but the court did not err in this ruling for the reason that the statute does not require a sworn replication. The replications denied the allegations of the pleas, and tendered issues of fact.

It is next urged that appellant’s demurrer to the replications should have been sustained. The demurrer was overruled, and appellant did not stand by her demurrer, but elected to proceed to trial without further pleading, and thereby waived a formal rejoinder. (Funk v. Babbitt, 156 Ill. 408; Turner v. Modern Woodmen of America, 186 Ill. App. 404; Anderson v. Patty, 168 Ill. App. 151.)

It is also urged that the trial court erred in permitting appellee to amend her replications after confessing a demurrer, but there is no merit in this contention; and -appellant, without objection, proceeded with the trial, and cannot now raise for the first time the question that the issues were confused and misleading, or that appellant was taken by surprise.

The record in this case does not disclose any reversible error, and the judgment is affirmed.

Judgment affirmed.


author: Mr. Justice Wolfe

text:
    Elsie Black, Appellee, v. The Texas Company, Appellant.
    1. Appeal and error — attachment of assignment of errors to record. Buies of court relative to the writing in, or attaching to, the record the assignments of errors were substantially complied with by the clerk of the lower court inserting the assignment with the parts of the record in a place immediately preceding his certificate of the record, which is the last sheet of the bill of exceptions.
    2. Appeal and error — limitation of errors to those assigned and repeated in abstract of record. Where the appellant sets forth in his abstract of record alleged errors which are not stated in the assignment of error, the Appellate Division will consider only those errors which are specifically enumerated in the assignment of errors and again repeated in the abstract of record.
    3. Saving questions eor review — waiver of request for directed verdict by .introducing evidence. A defendant waives the question whether plaintiff’s evidence alone tends to support the cause of action by introducing evidence after its motion to direct a verdict at the close of plaintiff’s evidence.
    4. Saving questions for review — sufficiency of evidence to support cause of action. The question whether all the evidence in a case is sufficient to support the plaintiff’s cause of action is preserved for review by defendant’s motion for a new trial on the ground that the verdict was against the weight of the evidence and assigning error on the overruling of the motion.
    5. Appeal and error — presumption that abstract of record includes evidence. The Appellate Court will presume that all the evidence pertinent to the question whether there is sufficient evidence to support a cause of action has been included in the abstract of record filed by the appellant and the additional abstract of evidence filed by the appellee.
    6. Explosives and combustibles — necessity of proving distributor of Tcerosene to retailer was agent of producer. It is incumbent upon one injured by an explosion of kerosene bought from a retailer to prove a distributing company was the agent of defendant, a producing company, under allegations that defendant, by its servant, the distributor, negligently supplied the kerosene to the seller for the retail trade, and, by its servant, represented the kerosene to be reasonably safe for domestic use, etc.
    7. Master and servant — applicability of rule of respondeat superior. The rule of respondeat superior does not apply unless the relationship of master and servant exists and the servant’s actions are controlled by the master and are within the scope of his employment.

      8. Agency — definition of “agent.” The word "agent” in a general sense applies to persons in the service of, or who perform some acts for, another, but who in a legal sense would not necessarily be the agent of such person and stand in the place of his principal and be his representative.
    9. Agency — effect of designating relationship as one of agency. The fact that parties engaged in an undertaking, or in an agreement, term their relationship as one of agency is not conclusive upon the question whether the legal relationship of principal and agent exists between the parties.
    10. Explosives and combustibles — sufficiency of evidence that distributor of herosene was agent of producer. In an action by one injured by an explosion of kerosene bought from a retailer, the evidence was insufficient to establish in a legal sense the existence of the relation of principal and agent between the defendant, a producing company, and a distributing company which supplied the retailer.
    11. Explosives and combustibles — sufficiency of evidence that negligence of producing company was proximate cause of explosion of herosene. In an action by one injured by an explosion of kerosene bought from a retailer who was supplied by an alleged distributing company for defendant, a producing company, the evidence did not prove that any negligence of the defendant was the proximate cause, or a causal contributing element, of the explosion.
    12. Explosives and combustibles — verdict for one injured by explosion of herosene as contrary to evidence. In an action by one injured by an explosion of kerosene bought from a retailer who was supplied by an alleged distributing company for defendant, a producing company, a verdict for the plaintiff was contrary to the weight of the evidence.
    Appeal by defendant from the City Court of East St. Louis; the Hon. Silas Cook, Judge, presiding.
    Heard in this court, at the October term, 1927.
    Reversed and remanded.
    Opinion filed January 20, 1928.
    Bryan, Williams & Cave, for appellant.
    Geers & Geers, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

On January 8, 1927, in the city court of East St. Louis, Elsie Black, the appellee herein, secured a verdict against the appellant awarding to her the sum of $2,000 as damages for personal injuries sustained by her, resulting, as she alleges, from the negligence of appellant. Counsel for appellee most earnestly insist that there is no assignment of errors written in or attached to the record of the trial court as is required by the rules of this court; also, that the abstract of the record, filed by appellant, is not a complete abstract of the record and does not fully comply with the rules of this court. In the opinion of said counsel these objections are of such a substantial nature as to justify this court in deciding that, owing to such lack of assignment of errors, there is nothing here presented for review, and that this court will not consider the sufficiency of the evidence to support the verdict because there has not been filed by appellant a complete abstract of all the evidence heard in the court below.

An examination of the record discloses that on 'May 25, 1927, an assignment of errors was filed with the clerk of the lower court which he inserted with the parts of the record in a place immediately preceding his certificate of the record, which is the last sheet of the bill of exceptions. It is our opinion that the rules of this court have been substantially complied with relative to the writing in, or attaching to, the record the assignment of errors.

. Appellant does, however, in his abstract of the record set forth alleged errors which are not stated in the assignment of errors attached to the record. The purpose of the assignment of errors is to point out specific errors claimed to have been committed by the court below, and discussion by appellant is limited to the errors enumerated in the assignment of errors and cannot be broadened or increased by setting forth other alleged errors in the abstract of the record. (3 C. J. p. 1328, § 1461.) This court will, therefore, consider only those errors which are specifically enumerated in the assignment of errors and again repeated in the abstract of record.

Appellee contends that the appellant has, by introducing evidence on its own behalf, waived any error it has assigned for the failure of the trial court to direct a verdict for the appellant at the close of the appellee’s evidence, and thereby closed to review the question whether all the evidence is sufficient to support the verdict. This point will be next considered before there is a determination if the abstract of the record, prepared by appellant, is sufficient.

In the case of Voigt v. Anglo-American Provision Co., 202 Ill. 462, the Supreme Court has decided that whether the evidence fairly tends to support the plaintiff’s cause of action is a question of law, and in Reavely v. Harris, 239 Ill. 526, it is further decided that this question is waived if the plaintiff does not. make a motion to direct a verdict at the close of plaintiff’s evidence and renew this motion at the close of all the evidence. The Supreme Court in the case of Voigt v. Anglo-American Provision Co., supra, also points out that whether the verdict is against the weight of evidence is, when properly presented, a question for the decision of the Appellate Court, and the following proposition is laid down in that case: “Where however, it is alleged that the trial court erred in overruling the motion for a new trial, based on the ground that the verdict was against the weight of the evidence, the Appellate Court is the only tribunal that can correct the error, if any has been committed, and the aggrieved party has the undoubted right to have the decision of that court on the question. Its decision being final on such a question, the duty fully to consider and determine it would seem to be all the more imperative.”

The question whether all the evidence in the case is sufficient to support the plaintiff’s cause of action is preserved for review by appellant in its motion for a new trial and in its assignment of errors. Appellant has ivaived the question whether the plaintiff’s evidence alone tends to support the cause of action by introducing evidence after its motion to direct a verdict at the close of plaintiff’s evidence (Knights Templars’ & Masons’ Life Indemnity Co. v. Crayton, 209 Ill. 550). However, the question if the verdict is contrary to all the evidence has been preserved for review and this court is bound by law to consider it, provided the abstract of the record complies with the rule of this court.

In this case appellant has filed an abstract of the record containing what purports to be an abstract of the evidence and appellee objects that this abstract of the evidence is not complete. Appellee has filed an additional abstract of the evidence and this court will presume that all the evidence pertinent to the questions presented for review have been included in the abstract of the record filed by the appellant, and the additional abstract of the evidence filed by the appellee. Otherwise the burden would be thrown on the court to search the record and compare it with the abstracts of the evidence filed to ascertain if all the evidence is, in fact, duly abstracted.

The facts in this case as they appear from the evidence are not in dispute and the issuable, or ultimate facts, as now presented to this court, are confined within a narrow compass. Appellee was the mother of Mildred Black who was aged 11 years at the time of the distressing accident hereinafter mentioned. On May 15, 1926, the father of Mildred took her to the hardware store of T. J. Gebauer, located in the town of Troy, Illinois, where kerosene was sold at retail. The girl took a 5-gallon oil can into Gebauer’s store and requested that two or three gallons of kerosene be put into the can. Gebauer went to his tank, which was a 60- to 65-gallon galvanized tank which he kept stored in a warehouse about 100 feet back of his store and in which he kept kerosene. Gebauer withdrew two or three gallons of kerosene from his tank and placed it in the can brought into the store by Mildred Black. The can was taken to the home of the appellee and her husband, in Madison county, and, according to their testimony, the oil can was empty when taken into the hardware store, and was a new can which had only been filled with kerosene once before and at Gebauer’s store; and nothing was added to the oil in the can after the kerosene was purchased at Gebauer’s store. Some of the kerosene purchased on May 15,1926, was placed in the lamp of an incubator kept on the Black premises.

On May 25,1926, Mildred Black was directed by her parents to do the dishes and fill a lamp from the oil can, some of which duties she was performing in the kitchen of her home while her parents were outside of the house engaged in other work. There was a sudden and loud explosion in the kitchen and Mildred, with her clothing in flames, rushed from the house into the yard, and the appellee ran to her assistance and in attempting to extinguish the flames and to remove the clothing of Mildred, the appellee was severely and permanently burned. When appellee left the kitchen only a few minutes before the explosion there was a fire burning briskly in the kitchen stove and the lids were on the stove. The kitchen was very warm and the lamp was on a dresser in the bedroom. After the explosion, the lids were in place on the stove, the dishes stacked on the kitchen table, and the lamp was sitting on the kitchen table, near the edge, with the globe off. The oil can, burned black, was lying on the floor with the spout and bottom blown out. The floor of the kitchen and the furniture were blackened and charred. The glass in the windows and doors was blown out and the draperies and furniture in the sitting room were burned and blackened. The cap of the can was found in Mildred’s hand as she lay in the grass in the yard, where she had fallen.

It cannot be disputed that the oil can exploded and no question is made concerning the contributory ■ negligence of the appellee or the girl Mildred, who died eight hours after the explosion and from the injuries received therefrom.

On May 25, 1926, the same day of the explosion, about a quart of the oil was taken from the. illuminating lamp and the incubator lamp of the Black family and delivered to W. E. Campbell, the city oil inspector of the city of Collinsville. Mr. Campbell tested the oil by the standard used for testing oil and which is known as the Taglibue test. The oil was tested by heating it and using an apparatus to which a thermometer was attached to register the temperature of the oil in degrees Fahrenheit. When this oil registered 127 degrees it flashed, and fired at 135 degrees, and as the temperature of the oil was reduced it flashed at 120 degrees and burned at 130 degrees.

Mr. Gebauer had placed in his tank at his store, and from which he withdrew the oil sold to the Black family, kerosene which he purchased from the Madison County Oil Company and from the Standard Oil Company. The Madison County Oil Company was the distributor of the appellant’s products in Madison county outside of the tri-cities. There was no privity or legal connection between appellant and the Standard Oil Company proved.

The Madison County Oil Company supplied Gebauer ’s tank with about 30 or 40 gallons of oil each week. On different days during the month of May, 1926, beginning on the 3rd day and ending on the 25tli day, the Madison County Oil Company placed in Gebauer ’s tank 95 gallons of kerosene, the product of the appellant; and an additional 30 gallons of such oil were put in said tank during the month of May, but the exact date is not known. On April 30, 1926, the Standard Oil Company placed in said tank 30 gallons of its kerosene which was purchased by Gebauer from the latter company. It is not known if Gebauer’s tank was empty or not on April 30, nor whether it was empty on any occasion between that time and the 15th day of May. Mr. Campbell also testified, on behalf of appellee, that he tested all the kerosene distributed by the Standard Oil Company in the vicinity of Collinsville during the entire year of 1926 at its tank cars, and that none of it ever flashed or fired below 150 degrees Fahrenheit.

The railroad car containing kerosene of appellant was placed on a siding of the Madison County Oil Company at Edwardsville on April 20, 1926. It was a portion of this kerosene which was later sold to the Black family by Gebauer. Appellant proved by C. 0. Nash, the city oil inspector for the city "of Edwardsville, that he tested all the Texaco kerosene shipped into Edwardsville by the Texas Oil Company during the months of May and April, 1926, which was delivered to the Madison County Oil Company. ‘ ‘ Texaco ’ ’ was the name under which the products of appellant were sold as is shown by the sales tickets introduced in evidence by appellee and also shown by the testimony of the witness, James C. Pierce. A reading of Mr. Nash’s testimony leads to no other conclusion than that by the name “Texaco Oil Company,” he meant the Texas Company, the appellant herein. The court is convinced that there is no merit in appellee’s contention that Nash’s testimony meant any other than the kerosene of appellant or any other company than the appellant company.

There is no evidence showing the flashing or burning point of the oil in Gebauer’s tank at any time. The evidence further shows that kerosene will not explode unless it is mixed with gasoline or some other explosive substance.

As before stated, the verdict of the jury was in favor of the appellee, and appellant assigns as error that the verdict is contrary to the evidence.

It is clear from the evidence that the oil which exploded in the Black home must have been contaminated after it left the tank cars of the appellant or of the Standard Oil Company either before or after it went into Grebauer’s tank. Appellee assumes that as the oil of the Standard Oil Company was ■ tested in the tank car of said company the oil of that company is eliminated as a causal factor of the explosion. Assuming this to be true, at the present and for the sake of argument, the other legal phases of the case will now be considered. The appellee contends that the evidence shows that the Madison County Oil Company was, during the months of April and May, 1926, the agent of the appellant and that the rule respondeat superior applies. The appellant, on the contrary, insists that the evidence does not show that the Madison County Oil Company was at such time the agent of the appellant. As this is an important element in the case it will be necessary to examine the evidence bearing on the proposition if the Madison County Oil Company was such agent of the appellant at such time. The only evidence tending to prove the relationship of principal and agent by the said company is contained in the testimony of one James C. Pierce who testified, on that point, as follows: “Q. In 1926, throughout the month of May, * * * what connection did you or the Madison County Oil Company bear to the Texas Company? A. Distributors of Texaco Petroleum products. Q. Were you distributing agent for that company? A. Yes. Q. Where did you distribute? A. In Madison County exclusive of the tricities.” Pierce also testified that the Texas Company at St. Louis or Chicago would notify him, from time to time, when they had kerosene to sell and he would place an order for a car of kerosene which he would deliver to purchasers by means of tank wagons. Pierce was the manager of the Madison County Oil Company.

Attention is also called to the fact that the appellee in her declaration alleges that the appellant, by its servant, negligently and carelessly furnished .and sup-' plied to said Gebauer for retail trade said kerosene and, by its said servant, represented said kerosene to be reasonably fit and safe for domestic use, but that the same was dangerous on account of its combustible condition. It was therefore incumbent on the appellee to prove the agency of the Madison County Oil Company (Chesley v. Woods Motor Vehicle Co., 147 Ill. App. 588). It is also true that the rule respondeat superior does not apply unless the relationship of master and servant exists and the servant’s actions are controlled by the master and are within the scope of his employment (Orr v. Thompson Coal Co., 219 Ill. App. 116; Neville v. Chicago & A. R. Co., 210 Ill. App. 168; Clausen v. Finkelstein, 209 Ill. App. 341). The word “agent” is a very extensive term and in a general sense applies to persons in the service of, or who perform some acts for, another, and who in a legal sense would not necessarily be the agent of such person and stand in the place of his principal and be his representative (Clement v. Canfield, 28 Vt. 302, 304; Turner v. Cross, 83 Tex. 218, 18 S. W. 578). The fact that parties engaged in an undertaking, or. in an agreement, term their relationship as one of agency is not conclusive upon the court that the legal relationship of principal and agent exists between the parties. And in the case of Bendix v. Staver Carriage Co., 174 Ill. App. 589, the court decided that although the contract was entitled “Agency Agreement,” in which contract plaintiff was granted an exclusive right to sell defendant’s motor cars in specific territory for a certain time, it did not create an agency so that in the legal sense the plaintiff became the agent of the defendant. And in the case of Lauer Brewing Co. v. Schmidt, 24 Pa. Super. Ct. 396, 400, the court said: “The plaintiff, a brewing company, established what it describes as ‘agencies’ for the sale of its.products. As thus employed, however, the words ‘agency’ and ‘agent’ must be regarded as in the nature of trade names. The person conducting the so-called agency was in no sense 'an agent. _ He was in fact a purchaser at wholesale, buying at a stipulated price, and selling not for the manufacturer but for himself. In the conduct of his business he was wholly independent of the manufacturer, was without authority to bind him in any manner, and without responsibility to him except for the price of the goods received.”

The sales tickets showing the purchase of the oil in question by Gebauer are headed Edwardsville, Illinois, with the date, and further state that the kerosene was bought of the Madison County Oil Company and they are receipted by H. Dustmen who was the Servant of the Madison County Oil Company and the driver of their tank wagon. As before pointed out, the witness Pierce testified that the railroad car containing the kerosene was placed on a railroad siding of the Madison County Oil Company at Edwardsville. There was no further evidence tending to prove the agency of the Madison County Oil Company. It is the conclusion of this court that sufficient and necessary facts were not proven by the appellee to establish in a legal sense the existence of the relation of principal and agent between the appellant and the Madison County Oil Company.

There being no evidence proving any negligence on the part of the appellant, or its authorized agent, in selling kerosene below the legal igniting point of 150 degrees Fahrenheit, the court is of the opinion that the explosion, as a result of which appellee claims to have been injured, is too remote from the delivery of kerosene by the appellant to the Madison County Oil Company to make the appellant liable. This court agrees with the reasoning which is given in the case of Ellis v. Republic Oil Co., 133 Iowa 11, 110 N. W. 20, where the learned judge says: “If A., owning standard high grade oil, directs his agent, B., to deliver it to C., whose agent, in turn, delivers it to D., proof that upon its delivery to B., it was of pure and unmixed quality, and upon the final delivery to D. it was found to be a mixture of oil and gasoline, directly and legitimately tends to the conclusion of negligence by sorpe person or persons who have handled or dealt with the article in its course of transmission. If but one such person is found, the inference of his negligence is so strong that the unexplained circumstances bring the case well within the principle, if not the rule, of res ipsa loquitur, and justify a finding against him. If two such persons are found who handle the article in succession, neither being responsible for the conduct of the other, and the evidence failing to indicate one rather than the other as the person at fault, it may be (we do not decide) that a verdict against neither could be sustained. ”

In the case of Pressley v. Bloomington & N. Ry. & Light Co., 271 Ill. 622, the Supreme Court held that a generating company which sells electric current to a-distributing company and furnishes the current over a wire owned by the distributing company is not liable for an injury due to defective insulation of the wire, unless the generating company, with knowledge of the distributing company’s negligence in permitting the wire to become defective, continues to supply the current.

Attention is again called to the 30 gallons of kerosene which were placed in Gebauer’s tank by the Standord Oil Company on April 30, 1926, when it is not known whether the tank was empty or not. It is also worthy of note that in addition to his kerosene tank, kept in his warehouse, Gebauer also had stored in front of his premises gasoline kept in an underground tank. The sales tickets show that at the same time that Gebauer replenished his kerosene supply, he also received large quantities of gasoline from the Madison County Oil Company.

The source of the contamination of the kerosene in the Black home is not proved by the evidence and upon whom the responsibility for the explosion should rest is a matter of conjecture.

The judgment of the lower court is reversed on the grounds that the evidence does not prove that any negligence of the appellant was the proximate cause, or a causal contributing element, of the explosion, and also that the verdict of the jury is contrary to the evidence.

Reversed and cause remanded.


author: Mr. Justice McSurely

text:
    Florence Davies, Plaintiff in Error, v. Alfred Frederick Lloyd Davies, Defendant in Error.
    Gen. No. 32,039.

      Venue — power to vacate alimony order after allowing change of venue. After a chancellor has allowed a change of venue from himself, on the allegation that he is prejudiced against the complainant in separate maintenance, he is without power to vacate a prior order allowing temporary alimony, notwithstanding the provision of Cahill’s St. ch. 146, jf 11, that change of venue may be made subject to such equitable terms and conditions as safety to the rights of the parties may seem to require.
    Error by plaintiff to the Superior Court of Cook county; the Hon. Harry A. Lewis, Judge, presiding.
    Heard in the first division of this court for the first district at the October term, 1927.
    Reversed.
    Opinion filed January 30, 1928.
    Ninian H. Welch and Sol A. Hoffman, for plaintiff in error.
    Matilda Fenberg and Jacob G. Grossberg, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.

By this writ of error complainant questions an order of the chancellor vacating a prior order which allowed temporary alimony, entered in connection with an order granting a motion for change of venue.

Complainant filed her bill for separate maintenance and on January 19, 1925, Judge Sabath entered an order giving her temporary alimony until the further order of the court. In April the cause was placed on Judge Lewis’ trial calendar. May 18, 1927, complainant filed in due form a petition for change of venue, alleging prejudice of Judge Lewis against her. The court thereupon entered an order finding that the motion was proper and allowing a change of venue, but in addition also ordered that the order for alimony theretofore entered be discontinued until the cause, was tried.

Complainant properly says that after the chancellor had allowed the change of venue from him, he was without power to make any order touching alimony. This exact situation was before the court in Simpson v. Simpson, 165 Ill. App. 515, where it was held that where the application for a change of venue is made on account of the prejudice of the trial court, the statute gives no discretion; but if the petition is in proper form the change of venue must be allowed; that after the petition is presented, the judge therein named has no power to render any further order therein except such as may be made in connection with the change of venue and that the court was without jurisdiction to enter any orders with regard to solicitors’ fees and temporary alimony.

Defendant, however, cites the statute, section 11, chapter 146, Cahill’s St. ch. 146, ¶ 11, which provides that change of venue may be made “subject to such equitable terms and conditions as safety to the rights of the parties may seem to require, and the judge in his discretion may prescribe. ’ ’

An order relating to alimony does not come within the statutory equitable terms and conditions which the court may impose. These must relate to the safety of the rights of the parties. Vacating the order allowing the complainant alimony does not relate to the safety of the rights of the parties. The court had no authority to enter such an order. Mapes v. Scott, 94 Ill. 379; Bellingall v. Duncan, 2 Gilm. (Ill.) 591. That part of the order of May 18, 1927, purporting to relate to alimony, is therefore reversed.

B,eversed.

Matchett, P. J., and O’Connor, J., concur.


text:
    United States Brewing Company of Chicago, Appellant, v. Charles Epp, Appellee.
    Gen. No. 32,059.
    1. Appearances — waiver of defect in service of process. A motion to set aside a judgment, which is based upon any other matter except the question of jurisdiction, amounts to a general appearance and the submission of the defendant to the jurisdiction of the court, waiving ali defects in the service of process.
    2. Judgments and decrees — personal service of writ of scire facias. It is the established practice in this State that, if possible, there should be personal service of a writ of scire facias to revive a judgment.
    3. Judgments and decrees — defenses in scire facias to revive judgment. The only defenses which can be set up in a scire facias proceeding to revive a judgment are that no judgment was rendered, or, if one was rendered, that it has been satisfied or discharged.
    4. Judgment and decrees — acquisition of jurisdiction in scire facias to revive judgment. The requirements for obtaining jurisdiction of the defendant upon a scire facias to revive a judgment are not necessarily as strict as those required when the original judgment is obtained.

      5. Appearances — waiver of defect in service of process in scire facias to revive judgment. A defendant in a scire facias proceeding to revive a judgment may submit himself to the jurisdiction of the court by less definite conduct than in the ease of an original proceeding, and any conduct on his part which indicates submission of himself to the court will be construed to waive any defect- or failure in the.service of process.
    6. Appearances — acts constituting waiver of defect in service of process m scire facias. A defendant in a scire facias proceeding to revive a judgment waives any defect or failure in the service of process and consents to the jurisdiction of the court by filing schedules of exemption to executions issued on the revived judgment, reciting the revived judgment in the affidavits to the schedules; by moving to sot aside the original judgment and for leave to try the case on the merits, the supporting affidavit reciting the order of revival and the executions therein; and by moving to set aside the order of revival, based upon many other matters than questions relating to jurisdiction.
    Appeal by plaintiff from the Superior Court of Cook county; the Hon. Hugo Pam, Judge, presiding.
    Heard in the first division of this court for the first district at the October term, 1927.
    Reversed.
    Opinion filed January 30, 1928.
    Winston, Strawn & Shaw, for appellant; Harold A. Smith, of counsel.
    No appearance for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

By this appeal plaintiff seeks the reversal of an order vacating and setting aside a judgment of revival by scire facias of a prior judgment of $710.25. The defendant does not contest this appeal.

The original judgment was entered by confession September 9, 1918. Execution was issued but never served. August 15, 1925,-a writ of scire facias was issued to revive the judgment. September 8,1925, the writ was returned bearing the indorsement of the sheriff that the defendant was not found. September 10th an order was entered by the court reciting that the defendant had been served with the writ and it was ordered that the judgment be revived in the amount of $710.25 and that execution issue. An execution and an alias execution were issued and served, to which the defendant filed schedules, which will later be noticed in more detail. March 20, 1926, the defendant appeared before Judge Hurley and moved to vacate the original judgment and asked that he be allowed to plead his defense, submitting a sworn petition in support thereof. March 27th this motion was denied. May 4, 1927, the defendant filed his motion and supporting affidavit asking the court to set aside the order of September 10, 1925, reviving the judgment. This motion was continued to May 14th. On this last date defendant filed a special and limited appearance by his attorney and the hearing was continued to June 4th, when the court vacated the order of revival.

Plaintiff contends that, although the defendant was not served with process to the scire facias, by his subsequent conduct in moving to vacate the original judgment and by filing his schedules to the executions issued on the revived judgment, he acquiesced therein. It is undoubtedly the rule that irregularity in obtaining jurisdiction of the person may be waived. If a party appears to a cause for any purpose whatsoever, except only to object to the process or service, he waives all objections thereto, although there may have been no service. Dunning v. Dunning, 37 Ill. 306.

When defendant on March 20, 1926, moved to set aside the judgment, he raised no point touching jurisdiction. His motion presented only the merits of the controversy and asked that he be allowed to defend. Under similar circumstances it was held in Yorke v. Yorke, 3 N. D. 343, 55 N. W. 1095: “This was a voluntary and unqualified submission to the jurisdiction of the court, generally, and, although made after judgment, was a waiver of all defects in the process, ’ ’ citing Elliott v. Lawhead, 43 Ohio St. 171; Leake v. Gallogly, 34 Neb. 857, 52 N. W. 824; Grantier v. Rosecrance, 27 Wis. 488. In Anderson v. Coburn, 27 Wis. 558, it was held that where a motion is made after judgment to set aside the judgment, this is in effect a general appearance, curing all defects in the service of summons and rendering the judgment valid. Many-other cases might be cited supporting the proposition that where the grounds for the motion to set aside are based upon any other matters except the question of jurisdiction, such motion amounts to a general appearance and the submission of the defendant to the jurisdiction of the court, waiving all defects in the service of process. Handy v. Insurance Co., 37 Ohio St. 366; Harper v. Biles, 115 Pa. St. 594, 8 Atl. 446.

However, the question before us is not concerned with the original judgment, but with the order reviving such judgment under the writ of scire facias. Under our statute judgments in any court of record, in this State may be revived by scire facias within 20 years from the date of such judgment.. Cahill’s St. ch. 83, ¶ 27. The requirements for the service of the writ are somewhat indefinite in many jurisdictions. Its professed object is to give some warning or notice to the person to be charged thereby, and as stated in 24 R. C. L. 678: “In practice this object was lost sight of and it became possible to proceed without giving any actual notice whatsoever.” It seems this practice is still retained, in whole or in part, in some of the States. In some States and in certain cases in this State a return of one or two niliils is sufficient. In the English Court of Common Pleas only one return of nihils sufficient for judgment of revivor. The only provision we find in our statute with reference to service of the writ to revive a judgment is section 43 of the Practice Act, chapter 110, Cahill’s St. ch. 110, ¶ 43, which provides that where the defendant is concealed so that process cannot be served on him and stating the place of resideuce, if known, or that it cannot be ascertained, notice may be given Mm by publication and mail. It is, however, the established practice in this State that, if possible, there should be personal service of the writ. In Bickerdike v. Allen, 157 Ill. 95, it was held that such a proceeding is not in rein, but in personam, and that mailing a notice to a defendant within the State is sufficient. The same case holds that the proceeding is not a new suit, but merely the continuation of the old one. It does not determine the obligations of the defendant to the plaintiff, as involved in the original controversy and which are settled by the former judgment, but merely seeks a revival of the former judgment in order to have execution on it. Defendant cannot show any matter which was pleaded or might have been pleaded in the former action. The only defenses which can be set up in the scire facias proceeding are that no judgment was rendered, or, if one was rendered, it has been satisfied or discharged. 21 Am. & Eng., Encyc. of L., p. 854; Smith v. Stevens, 133 Ill. 183. In Waldstein v. Williams, 101 Ark. 404, 142 S. W. 834, 37 L. R A. (N. S.) 1162, it was held that the legislature could provide the manner of reviving a personal judgment and as to the service necessary to be obtained, and that the statute might properly provide that it was not necessary that the same service should be had upon the defendant in reviving the judgment that was had upon him in the original judgment. In Dustin v. Brown, 297 Ill. 499, where the writ was served on only one of a number of co-defendants, who entered his appearance and consented thereto, it was held that this judgment of revivor was binding not only on him but on his codefendants.

These considerations lead us to the conclusion that the requirements for obtaining jurisdiction of the defendant upon a scire facias to revive a judgment are not necessarily as strict as those required when the original judgment is obtained, and that the defendant, ill such a proceeding, may submit himself to jurisdiction by less definite conduct than in the case of an original proceeding, and that any conduct on his part which indicates submission of himself to the court will be construed to waive any defect or failure in the service of process.

September 10, 1925, the order of revival was entered. Execution was issued, and on October 3, 1925, a demand xvas made upon the defendant. This demand recites the revival judgment by scire facias. In response to this, defendant sxvore to a schedule which, after reciting the judgment of revivor, schedules certain personal property as exempt. A second execution was issued and served on defendant. This also recited the judgment by revival. This execution was levied on certain real estate, and pursuant to the statute three householders’were appointed to and did appraise the same. To this second execution defendant also filed a schedule of exemption, which was sworn to, in which the judgment of revival was recited. The next move was March 20, 1926, when defendant appeared before Judge Hurley and moved the court to set aside the original judgment and for leave to try the case on the merits. In his supporting affidavit defendant recited the order of revival and the executions thereon and did not question them in any way. Furthermore, in the motion of May 4,1927, to set aside the order of revival, defendant in his petition grounded his motion upon many other matters than questions relating to jurisdiction.

We hold that this subsequent conduct of the defendant amounted to a waiver of any defect or failure in the service of process and was a consent to the jurisdiction of the court. It therefore follows that the order of June 4,-1927, vacating the order of revival of September 10, 1925, was erroneously entered, and it is reversed.

Reversed.

Matchett, P. J., and O’Connor, J., concxxr.


text:
    Ida Lou Sim, Appellant, v. Allan Sim, Appellee.
    Gen. No. 32,086.
    1. Divorce — poioer to vacate decree of divorce at subsequent term. A court is without power at a term subsequent to the one at which a decree of divorce was regularly entered to vacate or modify, on motion or petition, the decree except as to matters of form or clerical errors, and except where a decree is void for want of jurisdiction in the court entering the same.
    2. Divorce — validity of decree as affecting right to vacate at subsequent term. The fact that a woman, alleging in her bill for divorce her lawful marriage to the defendant, had a living husband at the time of the alleged marriage does not render a decree of divorce void for want of jurisdiction so that the court can vacate the decree at a subsequent term.
    3. Divorce — proper remedy at subsequent term for decree of divorce procured by fraud. If a man, the defendant in a bill for divorce alleging the lawful marriage of the complainant to the defendant, becomes aware, at a term subsequent to the one at which a decree of divorce was entered, that the complainant had a living husband at the time of the alleged marriage, the proper remedy is to present such fact to the court by a bill of review, either by a bill to impeach the decree for fraud or to review the decree on account of, newly-discovered evidence.
    Appeal by plaintiff from the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding.
    Heard in the first division of this court for the first district at the October term, 1927.
    Reversed and remanded with directions.
    Opinion filed January 30, 1928.
    Rehearing denied February 11, 1928.
    Schnackenberg & Hansen, for appellant; Elmer J. Schnackenberg, of counsel.
    Smietanka, Rickard & Poulton, for appellee; John J. Poulton and James R. Bryant, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Complainant by this appeal seeks to reverse an order of the chancellor vacating and setting aside a decree of divorce, with orders for alimony and solicitors’ fees, entered at a prior term of the superior court.

May 13, 1926, complainant’s bill was filed, which among other things alleged that June 26, 1919, she was lawfully married to the defendant in Chicago; that they lived together as husband and wife until February 25,1926.; that two children were born of this marriage. The grounds presented for divorce were extreme and repeated cruelty. Summons was served on the defendant, who did not appear but permitted a decree to be entered by default. July 7,1926, Honorable Joseph Sabath, one of the judges of the superior court, heard evidence and found the facts as alleged in the bill, awarding complainant a divorce with alimony. This decree was signed and entered of record July 19, 1926, which was at the July term, 1926, of the superior court.

One year thereafter, in July, 1927, complainant filed a petition alleging that there was $180 arrears in alimony, and defendant was ordered to show cause why he should not be held in contempt for failure to obey the decree of the court. July 16, 1927, the defendant filed a verified petition which asserted that at the time of his alleged marriage with the complainant, to wit, June 26, 1919, complainant-was then legally married to one Arthur Williams, who was still living and from whom complainant was never divorced. Defendant asserted that he did not know of said prior marriage until long after the entry of the decree against him, and alleged that by means thereof complainant fraudulently imposed on the court and procured the decree of the court. He asked that the decree theretofore entered be vacated and set aside. The petition came on for hearing July 29, 1927, before Honorable Joseph B. David, another of the judges of the superior court, who required the parties to introduce testimony. Complainant objected and moved the court to dismiss the defendant’s petition for want of jurisdiction, which objection was overruled. After the hearing of evidence complainant’s solicitor again moved to dismiss the defendant’s petition for want of jurisdiction and, secondly, for want of equity. These motions were denied, as was also the motion that the defendant be adjudged in contempt of court for failure to pay alimony. The court thereupon proceeded to enter an order on August 2, 1927, reciting that the sworn testimony heard in open court showed that “at the time of the marriage in. question the complainant had a husband living, who is still living”; that the complainant’s marriage to defendant was void; that these facts were known to the complainant at the time she testified in her divorce proceeding, and that the defendant knew or should have known this fact, and hence a fraud was committed on the court which entered the decree. It was therefore ordered and decreed that the decree of divorce “heretofore entered in this cause” be set aside-and held for naught and that all orders for alimony and solicitors’ fees be vacated and that complainant’s bill of complaint be dismissed for want of equity.

The chancellor who entered the order of August 2, 1927, was clearly without jurisdiction to enter the same. It is hardly necessary to cite decisions holding that, if the term of court at which a decree is regularly entered has elapsed, the court is without power at a subsequent term, on motion or petition, to vacate or modify said decree in any manner except as to matters of form or clerical errors and except where a decree is void for want of jurisdiction in the court entering the same. Ernst Tosetti Brewing Co. v. Koehler, 200 Ill. 369; Tobias v. Tobias, 193 Ill. App. 95; Bushnell v. Cooper, 289 Ill. 260; Herrick v. Herrick, 319 Ill. 146; Guggenheim v. Guggenheim, 189 Ill. App. 151; Guggenheim v. Guggenheim, 189 Ill. App. 146; Hazard v. Hazard, 205 Ill. App. 562; The rule is clearly stated in Guggenheim v. Guggenheim, 189 Ill. App. 151:

“The decree of divorce * * * was a final decree. It was not void on its face, but regular and valid, and the Circuit Court had no jurisdiction to vacate or set it aside after the expiration of the term at which it was entered. The court had lost jurisdiction of the case.
“In Ernst Tosetti Brewing Co. v. Koehler, 200 Ill. 369, the court said in a case where fraud in the procurement of a decree was alleged: The proper method of impeaching and setting aside a decree after the term is to file an original bill in the nature of a bill of review, when such decree may be set aside, reversed or modified, according to the equities of the parties.’ ”

The defendant says there is an exception to this rule when a judgment is void because the court had no jurisdiction; that this exception includes a suit for divorce where at the time of the alleged marriage one of the parties had a living spouse not divorced; that such pretended marriage being void, the court had no jurisdiction to enter a decree of divorce. The excep-, tion which permits a court to vacate a prior order contemplates a case where the court had no jurisdiction of the subject matter or of the parties. In the instant case the court had jurisdiction both of the parties and of the subject matter. As was said in Miller v. Rowan, 251 Ill. 344:

“Jurisdiction of the subject matter is the power to adjudge concerning the general question involved, and if a bill states a case belonging to a general class over which the authority of the court extends, the juris-, diction attaches and no error committed by the court can render the judgment void. * * * If there is a total want of jurisdiction in a court its proceedings are an absolute nullity and confer no right and afford no protection but will be pronounced void when collaterally drawn in question.”

Complainant in her bill alleged her lawful marriage to the defendant. This was an allegation of essential fact which it was incumbent to establish by proof to entitle the complainant to relief. If subsequently the defendant became aware of the facts which, if known to the court would have produced a different decree, the proper method after the term to present such facts is by a bill of review, either by a bill to impeach the decree for fraud or to review the decree on account of newly-discovered evidence. Bushnell v. Cooper, supra. Defendant did not pursue the proper remedy.

We hold that the chancellor was wholly without jurisdiction to enter the order of August 2, 1927, vacating the prior decree. It is therefore reversed and the cause remanded with directions to enter an order adjudging the defendant in contempt for refusal to pay the alimony due under the final decree.

Reversed and remanded with directions.

Hatchett, P. J., and O’Connor, J., concur.