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    Illinois Power & Light Corporation, Appellant, v. Consolidated Coal Company of St. Louis and Consol Power Company, Appellees.
    Gen. No. 8,233.
    Heard in this court at the April term, 1928.
    Opinion filed October 15 ,1928.
    T. K. Rinaker, Jesse Peebles and Dryer & Brown, for appellant.
    George B. Gillespie, Alexander H. Bell and Whitnel & Browning, for appellees.

      Paul J. Luker, Murphy & Hemphill, L. M. Harlan and E. D. George, amici curiae.

   Mr. Justice Eldredge

delivered the opinion of the court.

Appellant filed its bill in equity in the circuit court of Macoupin county to enjoin appellees, and each of them, from constructing and from completing the construction of certain transmission lines from the city of Staunton to the village of Williamson and the village of Livingston, from rendering electric service to the villages of White City, Mount Olive, Williamson and Livingston and to the city of Staunton and to all the industries in, around and between said city and villages and to the individuals living in and around and between the same and from soliciting the right to render electric service for light, heat and power purposes from said city and villages, industries and individuals, from meddling with the rights of appellant to render such service and from inciting disturbances against the rights of appellant in said territory where it has a right to serve unmolested, subject to the Illinois Commerce Commission Act, Cahill’s St. ch. Illa, j[16 et seq., in relation to rates and character of service in said territories. A temporary injunction was issued restraining appellees from constructing and completing the construction of an electric transmission line from the city of Staunton to the village of Williamson and to the village of Livingston or from said city to said villages or from one of said villages to the other of said villages. A demurrer was filed by appellees to the bill and sustained. By leave of court, appellant filed an amendment to the bill and a demurrer to the amended bill was also sustained, whereupon, appellant, abiding by its bill, the same was dismissed-by the chancellor for want of equity. To reverse the decree sustaining the demurrer to the amended bill and dismissing the same for want of equity this appeal is prosecuted.

It is averred in the bill, in substance, that appellant is a corporation organized under the laws of this State and that, by its charter, is authorized to construct, purchase, own and operate throughout the State electric light and power plants with transmission lines and distribution systems extending therefrom and to manufacture and purchase electric current and transmit the same from said lines and sell or dispose of it at wholesale or retail to any and all customers residing within the state; • that it was organized June 19, 1923, by a merger or consolidation of the Southern Illinois Light and Power Company, a public utility, with several other public utilities known as the McKinley interests, with the charter power and right to conduct a public utility business for the manufacture, purchase and sale of electric current to the public, and that said corporations so acquired were all possessed of the franchises, rights, privileges and certificates of convenience and necessity required for conducting said business at the places hereinafter mentioned; that the said Illinois Light and Power Company had for more than seven years -prior to said consolidation owned and possessed large electric power plants located in the cities of Hillsboro, Litchfield, Gillespie, Collinsville and Greenville and had been operating said transmission lines extending from each of said cities and connecting each and all of said power plants together; that the Southern Illinois Light and Power Company had owned and operated other transmission lines extending from each of said cities to the villages and towns surrounding the same for a distance of several miles; that one of such lines extended from the city of Gillespie to the city of Benld and from there to the city of Sawyerville, over which it had furnished electric current to the cities of Benld and Sawyerville for a long time prior to said merger or consolidation; that prior to the time of the incorporation of appellant, and prior to the incorporation of the defendant Consol Power Company, the said Southern Illinois Light and "Power Company had applied for and obtained permission from the Illinois Commerce Commission to extend its electric transmission line from its then terminus about one-half a mile south of Sawyer-ville in an easterly and southeasterly direction along the south side of the village of White City, to within about one-hálf mile of the corporate limits of the village of Mount Olive and thence in a southerly direction and passing within three quarters of a mile of the corporate limits of the city of Staunton to the Mount Olive-Staunton Coal Company, located near the west side of the limits of the city of Livingston, for the purpose of furnishing electric light and power service to the said Mount Olive-Staunton Coal Company; that the said McKinley interests, before the consolidation, consisted of the Illinois Traction System, incorporated under the Railroad Act of Illinois, Cahill’s St. ch. 114, and engaged in carrying passengers and freight for hire by means of electric power from large electric light and power plants and' conveyed from transmission lines along and over its right-of-way, from the city of Venice to the cities of Granite City, Edwardsville, and other divers villages and towns and said city of Staunton and thence through said village of Sawyer-ville, the cities of Benld, Gillespie and divers other cities and villages to the city of Springfield and other places; that said Illinois Traction System was also possessed of another electric line extending from the city of Staunton through the village of Mount Olive and on to the cities of Litchfield and Hillsboro; that prior to said consolidation the Illinois Traction System owned the stock of several subsidiary corporations, organized for the purpose of conducting the public utility business and owning and possessing electric light and power plants and manufacturing, purchasing and selling electric current to the public in the cities of Venice, Granite City, Edwardsville, Carlinville and other places and had for many years furnished electric current to said cities and the inhabitants thereof, which said current had been purchased, in part, by said subsidiary corporations from the Illinois Traction System and by them distributed and sold to said cities and the inhabitants thereof; that said Illinois Traction System had, at each and all of said cities through which said electric line extended, maintained substations and transformers for reducing electric current to a voltage suitable and proper for furnishing electric power and light to all of said cities;

That said Illinois Traction System and its subsidiaries had for many years prior to said consolidation owned a transmission line extending from said Traction System line to the villages of Williamson and Livingston and for many years had furnished and sold electric current to a corporation then engaged in distributing the same to said villages of Williamson and Livingston and their inhabitants, which said distribution system was later sold to said municipalities and said Traction System continued to supply current thereto, until the time of said merger;

That said Southern Illinois Light and Power Company and the Illinois Traction System and all of said subsidiaries had at all times since the passage of the Public Utilities Act, Cahill’s St. ch. Illa, and the act known as the Illinois Commerce Commission Act, obtained all certificates of convenience and necessity required for carrying on the business in which each of said corporations had been, from time to time, engaged and had filed with said commission a schedule of rátes and charges which had been approved as filed and had, during all of said time prior to said merger, complied with all the orders, rules and regulations of said respective commissions in conducting the business in which each of said corporations had been engaged; that at the time of said consolidation and merger, appellant became the owner of all the property, real and personal, rights, privileges, franchises and certificates of convenience and necessity of the Southern Illinois Light and Power Company and of all capital stock of said Illinois Traction System and of all the subsidiary corporations then owned by said Traction System and became the owner of all the property, real and personal, and of all the rights, privileges, franchises and certificates of convenience and necessity of all the subsidiary corporations of said Traction System, and that said consolidation and merger aforesaid was approved by the Illinois Commerce Commission ;

That said transmission lines authorized by the Illinois Commerce Commission to be constructed by the said Southern Illinois Light and Power Company shortly prior to the said merger were within two months thereof fully constructed and ready to render electric service in the territory through which they extended; that said Southern Illinois Light and Power Company was, prior to the time of said merger, possessed of ample modern plants, machinery, equipment and supplies to render adequate electric service to the cities; villages and towns through which its lines extended and to the inhabitants thereof, and that said Illinois- Traction System and its subsidiary corporations were, at all times prior to said merger, possessed of ample modern plants, machinery, equipment and supplies to render adequate electric service to the cities, villages and towns through which its lines extended and to the inhabitants thereof; that by reason of said merger it became possible to connect all the transmission systems of the consolidated corporations and their subsidiaries, which, before the said merger, were, at all times, willing and able to serve the city of Staunton, Mount Olive, White City, and the villages of Williamson and Livingston and divers industries and persons living in and between and near said cities and villages, with electric light and power service and that since said merger appellant has been, at all times, ready, willing and able to serve said cities, industries and individuals in the same manner;

That the appellee Consolidated Coal Company of St. Louis, prior to the time of said merger, had become the owner of a vast acreage of coal lands situated near and around the municipalities of Staunton, Mount Olive, Livingston, White City, and elsewhere in the counties of Macoupin and Madison, and, before the termination of the World War and several years prior to said merger, had constructed a large coal mine in the village of White City, and for the purpose of furnishing electric power for hoisting the coal therefrom from its mine No. 7 and its mine No. 14, and for the purpose of furnishing light and power to other mines which the coal company then contemplated sinking and operating at the time said electric light and power plant was constructed at its mine No. 15, which was capable of producing a larger amount of current than was required for the operating of its mines Nos. 15, 7 and 14 and was constructed with the expectation of requiring the full capacity when the additional mines should be sunk, but which additional mines had never been sunk and said coal company has now abandoned the idea of ever sinking more mines and by reason thereof is attempting to make a return on its over-investment made by it in the coal business by disposing of the excess current generated by its said plant;

That prior to said merger, said coal company had not engaged in the manufacture or sale of electric current, but that immediately thereafter, and after it became rumored about that appellant was better equipped than ever before for the purpose of rendering electric service throughout the territory of White City, Mount Olive, Staunton, Williamson, Livingston and the intervening territory and the other places throughout which it- operated, the officers of the coal company applied for and obtained a charter in the name of the Consol Power Company, authorizing it to manufacture, purchase, acquire, sell and dispose of electric current and conduct a general public utility business and that said officers and agents of said coal company, in the name of the Consol Power Company, filed a petition with the Illinois Commerce Commission requesting that it, the said Consol Power Company, when incorporated, be permitted to conduct a general public utility business and more especially to manufacture, purchase and acquire electric current and sell and dispose of the same to the cities, villages and towns and inhabitants thereof in the counties of Macoupin and Madison;

That the stock of the Consol Power Company, with the exception of a few shares owned by the officers of the coal company, is all owned by the coal company ; that although said coal company was not possessed of the charter powers for rendering the public service and furnishing light, heat and power as aforesaid, and was possessed of no certificate of convenience and necessity to conduct such business, yet it, immediately after the merger aforesaid and before the Consol Power Company had obtained a charter authorizing it to do business, and before a certificate of convenience and necessity had been obtained by said Consol Power Company, began to solicit light and power contracts from the villages of White City, Mount Olive, Williamson, Livingston and the city of Staunton and from divers coal mines, brickyards and other industries, and also began to solicit for the disposition of electric current to divers persons living between the cities, villages and towns aforesaid, and threatened and intimidated the same into the making of many such contracts through the threat of closing all its said mines unless said cities, villages, towns and industries aforesaid, would enter into lighting contracts authorizing the Consol Power Company to furnish light, heat and power to the same and said coal company unlawfully furnished electric service and is still furnishing electric service to a great many persons living north and east of the city of Staunton under a void certificate of convenience and necessity issued by the commerce commission, authorizing the Consol Power Company to render such service; that although said certificate so granted by the commerce commission to said Consol Power Company was held to be illegal and void by the Supreme Court in the case of Illinois Power & Light Corp. v. Commerce Commission, 320 Ill. 427, yet said Consol Power Company wrongfully and in utter disregard of said decision continues to serve the persons it was prohibited from serving by said order and judgment of the Supreme Court;

That said Consol Power Company without any certificate of convenience and necessity authorizing it to serve the village of White City with electric current for light and power purposes and without applying for any such certificate, and without an order of the commerce commission giving it such authority, unlawfully entered into a contract to furnish said village of White City with light, heat and power for a term of, to wit, five years; that said Consol Power Company, since said merger, has entered into a contract with the city of Staunton, whereby the former has agreed to sell at wholesale, and said city has agreed to purchase, all the electric light and power current required for said city and its inhabitants for a period of five years, at a fixed price, which said contract was entered into without a certificate of convenience and necessity authorizing said Consol Power Company to furnish such service and without any approval of said contract by the commerce commission ;

That certain lighting contracts, which had been entered into between the village of Livingston and one of the subsidiaries of the Illinois Traction System, which had been assigned to the Illinois Power and Light Corporation, have since the merger aforesaid, expired, and that the coal company and the Consol Power Company tried to intimidate the citizens of said village and prevent the same from renewing its lighting contracts with said Illinois Power and Light Corporation and has and still does otherwise inter-meddle into the affairs existing between the said Illir nois Power and Light Corporation and said village, although the former is possessed of a certificate of convenience and necessity to enter into and renew their contracts with said village and although said Consol Power Company has no certificate of convenience and necessity to operate in said village ;

That said Consol Power Company, without a certificate of convenience and necessity, has solicited the business of divers industries and persons located in said cities and villages and between the same;

That complainant, by reason of the location of its said electric light plants, transmission lines and distribution systems, and by reason of the fact that the same were all constructed and the money necessarily expended in constructing the same has been expended and invested by the said Illinois Power and Light Corporation and its predecessors, has gained the prior right to a certificate of convenience and necessity to serve the said villages of White City and Mount Olive, the city of Staunton, the territory between said villages and cities, and in and around the said villages and cities, with electric light and power service and was then and always has remained capable of providing adequate service and by reason of the premises the situation has not arisen whereby the public’s convenience and necessity require the establishing of the Consol Power Company as another public utility within said territory;

That said transmission line extending from said mine No. 15 of the coal company to its said mine No. 7, and thence to its said mine No. 14, is substantially all of the property devoted to a public service or utility by the said Consol Power Company, and that said transmission line above described is owned by the coal company and not by the Consol Power Company; that although the Consol Power Company claims to be purchasing current from the coal company and transmitting the same over the transmission line aforesaid and retailing the same to the said villages of White City and Mount Olive, and the said city of Staunton and divers industries and persons residing in said territory, that said contention in truth and in fact is not true for the reason that current is transmitted by said coal company to its said mines and without any meter in series disclosing the amount of current transmitted to or consumed by the coal company or the Consol Power Company, and the only meters connected with said transmission line are placed in series with lines tapped for said transmission lines and being the meters determining the amount of current which the village of White City receives and another disclosing the amount of current which the village of Mount Olive receives, and another disclosing the amount of current which the city of Staunton receives and divers other meters located on another tap line, which discloses the amount of current received by divers individuals and users of the current, without any meter disclosing the amount of current which the Consol Power Company claims to receive from the coal company and that, by reason thereof, no current is ever acquired or purchased by the Consol Power Company but is generated by, and remains the current of, the coal company and no current is, in fact, ever sold by the coal company, nor bought by the Consol Power Company, and that the conduct of said defendants is only a sham and device for disposing surplus power generated by the coal company;

That by reason of the premises, said contracts entered into by the Consol Power Company and said cities, villages, business enterprises and persons, as aforesaid, are void and contrary to the provisions of the Public Utilities Act, Cahill’s St. ch. Illa, and to the public policy of the State of Illinois, and in contempt of the Supreme Court and are an irreparable injury to the Illinois Power and Light Corporation;

That the Illinois Traction System, through one of its subsidiary corporations, prior to the time of the passage of the first Public Utilities Act in 1913, had constructed a transmission line to the village of Williamson, which had prior to said time constructed a distribution system'for said village, and said Illinois Traction System had manufactured and transferred through its said subsidiary corporation, electric current and sold the same at wholesale to said village, which had used a portion thereof in lighting its streets and alleys and the balance thereof had been sold by said village to the residents and conveyed through its said distribution system; that as said service was rendered prior to the passage of the first Public Utilities Act, no certificate of convenience and necessity was required; that at the time of said merger said contract, and the right to render such service thereunder to said village, was assigned to your orator and further authorized by a general order of the commerce commission;

That prior to the time of the passage of the first Public Utilities Act, the village of Livingston had constructed a certain distribution system, used for lighting its streets and alleys, and for furnishing light, heat and power to the individuals residing in said village, and prior to the time of the passage of said act a transmission line had been constructed by the Illinois Traction System to said village and the same was thereafter, and prior to the time of the merger, purchased and acquired by the Illinois Traction System, and the subsidiary corporations thereof; that in 1895 it obtained a certificate of convenience and necessity to extend its transmission line from the Mount Olive-Staunton Coal Company, through the village of Williamson and to a point south of said village and to drill a hole where said transmission line passed into the ground and into certain entries of the New .Staunton Coal Company; that since complainant obtained said certificate of convenience and necessity it has purchased said distribution system of the village of Livingston and paid therefor $16,000, and since said time has expended the sum of $20,000 in repairing and extending said system;

That at the present time and at no time prior thereto has the coal company or the Consol Power Company, or any assignor of them, rendered any electrical service to the villages of Livingston and Williamson;

That since the time of the purchase of the distribution system of the village of Livingston, the coal company and the Consol Power Company, through its officers, agents and employees, have intermeddled with the citizens of said villages of Williamson and Livingston, have stirred up strife against your orator and have encouraged the residents of said villages and town boards thereof to abrogate their respective contracts with your orator and have attempted to obtain contracts authorizing the Consol Power Company and the coal company to furnish electric current to said villages and have caused certain citizens in said village of Livingston to file a bill in equity praying for a cancellation of its contract of sale of its distribution system to your orator;

That said defendants, in further carrying out a plan of injuring your orator and of obtaining the right to render the electric service to said villages have obtained from the commerce commission a certificate of convenience and necessity to serve said villages with electric light, power and heat, but said commerce commission has expressly stated that it has decided no right adversely to the right of the Illinois Power and Light Corporation and that the right to render said service to said villages, as between your orator and the said defendants is not determined; that a petition for a review of said order was filed by your orator with the commerce commission, which has been granted by said commission, and said cause now stands for further hearing;

That at the time the Consol Power Company was organized and incorporated, and ever since said time, your orator had large plants, capable of manufacturing more than enough electrical current to supply all of the territories mentioned in the bill, and was possessed of all the machinery, appliances and equipment for rendering such service, and had unlimited financial ability to install any additional equipment necessary, and was rendering a vast amount of service within the immediate territory mentioned in the bill, before the Consol Power Company was even incorporated, and that before said date your orator was possessed of certificates of convenience and necessity authorizing it to legally serve all its then customers, and that under the construction of the Public Utilities Act, Cahill’s St. ch. 111a, was possessed of the right of, and authority to render any and all kinds of electrical service to all of said cities, villages and towns mentioned and was ready, willing, and able to furnish such service and also furnish service to all the industries, firms and individuals living between and around said cities, villages and towns, and that by reason thereof it had a prior right to render service to all the places aforesaid and to the residents and inhabitants thereof but said coal company and the Consol Power Company have intruded into said territories and extended the said transmission line owned by the coal company, and that by reason of said transmission line the defendants are serving the said cities and villages and towns, excepting the villages of Williamson and Livingston, and other industries located therein, and a great many citizens residing in and between and around said villages and towns, as aforesaid, all of which conduct is illegal and without warrant at law;

That said defendants have, within a few days, purchased and placed along a certain line leading from the city of Staunton to the village of Williamson, a large number of electric light poles, with cross-arms thereon, and are engaged in digging holes for the setting of said poles, and in hauling out other equipment necessary in the building of a transmission line between the cities of Staunton and the village of Williamson and have further declared their intention of extending said line from the village of Williamson to the village of Livingston, for the purpose of rendering service to said village;

That said defendants have obtained some kind of a contract with said villages and unless the defendants are enjoined from rendering such service to said villages, they will, within a few weeks, complete said line and begin rendering service to the said villages and thereby deprive your orator of the right to render such service and cause to your orator irreparable injury and damage unless said defendants are restrained."

In the amendment to the bill it is averred that a few months prior to the filing thereof the coal company applied for and obtained increased charter powers authorizing it to engage in the business of manufacturing and generating electrical power and current and to sell the same, by special contracts only, to such customers in such quantities, at such times and places and on such terms as said appellee might elect; that since the time of said increased charter power both defendants had been doing a public utility business and had entered into contracts with the cities of Staunton and Mount Olive and the village of White City, in violation of law; that they 'have discriminated in the rates charged for service to said cities and villages, and are rendering service to Staunton at two and one-quarter cents per kilowatt, Mount Olive at three cents per kilowatt and to White City at three and one-half cents per kilowatt, for the same class and rate of service.

As the question involved on this appeal is the sufficiency of the bill as tested by the demurrer, it seemed necessary to set out the essential averments thereof at some length. It is apparent that the concrete substance thereof presents the facts to be that by the organization of appellant, and the consolidation and merger therein of the various corporations and subsidiary companies thereof, it became a fully established and equipped public utility corporation, capable of furnishing the entire territory mentioned in the bill with all necessary electric power and service and is furnishing a large portion of said territory with such service; that at' the time of its organization the coal company was a mining corporation, chartered only for the purpose of mining and selling’ coal; that the latter, subsequent to the organization of appellant, constructed a plant for the purpose of manufacturing-electricity of" sufficient capacity with which to operate its mines then in existence, and to operate other mines which it then contemplated to open in the future; that after the World War it abandoned its intention to open further mines and found itself with an electric plant capable of producing much more electrical energy than was necessary for the operation of its existing mines. It being organized for the purpose of mining and selling coal only, and having no charter powers to manufacture and sell electricity, it caused the Con-sol Power Company to be incorporated for the purpose of disposing of its surplus electrical power. The status of the Consol Power Company has been defined by the Supreme Court -in the case of Illinois Power & Light Corp. v. Illinois Commerce Commission, supra, to which we will refer hereafter. From the allegations in the bill it further appears that the coal company, and the Consol Power Company have made contracts with divers persons, industries, villages and cities within the territory mentioned for the purpose of supplying the same with electrical current and are now rendering such service and attempting to extend such service to other individuals, industries and cities, all within the territory and field in which appellant theretofore had been established and is capable of rendering such service.

The grounds for demurrer may be grouped as follows : (1) That appellant has not stated a case entitling it to any relief in a court of equity against said defendants or either of them; (2) that the cities of Staunton and Mount Olive, and the villages of White City, Livingston and Williamson are each necessary parties to the bill since it appears therefrom that appellees had entered into contracts with such municipalities, which it is sought to have declared illegal and void.

Counsel for appellees in their brief and argument have very tersely presented their views upon the above issues as follows: “Appellees admit, so far as this appeal is concerned, that they cannot lawfully do a public utility business in Staunton, Mount Olive, White City, etc. Appellees, however, insist that they are not doing a public utility business, and that the facts averred in the Bill, of Complaint and admitted in appellant’s Statement, Brief and Argument, are conclusive on such points.

“The issue then, on this appeal, is, whether or not the business being done by appellees, is a public utility business.

“There is a secondary issue, in this: If in fact the field which appellant says is being invaded, is not appellant’s field or territory, then appellant has no interest in the subject matter of the litigation, and is not entitled to prosecute this suit.

“The third issue involved is, whether or not the municipalities of Staunton, Mount Olive, White City, Livingston and Williamson, are necessary parties.”

It is apparent that the admission that appellees cannot lawfully do a public utility business in Staunton, Mount Olive, White City, Livingston and Williamson, eliminates the secondary issue above presented because the municipalities mentioned, and the territory surrounding them, comprise all the territory or area involved in this litigation. Two questions then remain for consideration: (1) Are the appellees, under the allegations of the bill, doing, or attempting to do, a public utility business in said territory? (2) Were the said municipalities necessary parties to the bill?

The argument by counsel for appellees, in support of the first contention, is based upon two propositions: First, that said municipalities are not included in the Commerce Commission Act, Cahill’s St. ch. 111a, j[ 16 et seq., but are excluded therefrom, are free from any control or supervision of the commerce commission and have the unrestricted power to contract for electricity with any person or corporations with which they may desire; therefore, since the municipalities are not under the jurisdiction of the commerce commission, appellees, by selling power thereto, are not acting as a public utility. Second, that said appellees do not hold themselves out as public utility corporations to furnish electricity to the public generally, but select their own customers under special contracts with each and consequently are not doing, and do not intend to do, a public utility business.

It is first important to consider the purpose of the passage of the Public Utilities Act, later re-enacted in the Commerce Commission Act, Cahill’s St. ch. 111a, K16 et seq. In the case of Illinois Power & Light Corp. v. Commerce Commission, 320 Ill. 427, in which the Consol Power Company, appellee in this case, was also appellee in that case, it was held: “The policy established by legislation for the regulation of public utilities is to provide the public with efficient service at a reasonable rate by compelling an established public utility occupying given field to provide adequate service and at the same time to protect it from ruinous competition. (Choate v. Commerce Com. 309 Ill. 248; West Suburban Transportation Co. v. Chicago & West Towns Railway Co. id. 87). By the adoption of this act it became the public policy of the State that free competition among public utilities did not promote the public service.”

In the case of West Suburban Transp. Co. v. Chicago & West Towns Ry. Co., supra, it was held: “The policy of the Public Utilities act is that existing utilities shall receive a fair measure of protection against ruinous competition. . . . Where one company can serve the public conveniently and efficiently it has been found from experience that to authorize a competing company to serve the same territory ultimately results in requiring the public to pay more for transportation, in order that both companies may receive a fair return on the money invested and the cost of operation.” '

In Choate v. Commerce Commission, supra, it was held: “The theory of the Public Utilities act is to provide the public with efficient service at a reasonable rate by compelling an established carrier occupying a given field to provide adequate service and at the same time to protect the existing utility from ruinous competition. ’ ’

In the original Public Utilities Act of 1913 (Session Laws 1913, page 465) the term “Public Utility” is defined in section 10 thereof as follows:

“The term ‘public utility,’ when used in this Act, means and includes every corporation, company, association, joint stock company or association, firm, partnership or individual, their lessees, trustees, or receivers appointed by any court whatsoever (except, however, such public utilities as are or may hereafter be owned or operated by any municipality) that now or hereafter:
“(a) May own, control, operate or manage, within the State, directly or indirectly for public use, any plant, equipment or property used or to be used for or in connection with the transportation of persons or property or the transmission of telegraph or telephone messages between points within this State; or for the production, storage, transmission, sale, delivery or furnishing of heat, cold, light, power, electricity or water; or for the conveyance of oil or gas by pipe line; or for the storage or warehousing of goods; or for the conduct of the business of a wharfinger; or that
“(b) May own or control any franchise, license, permit or right to engage in any such business.” Section 10 of the Commerce Commission Act of 1921 (Cahill’s St. ch. 111a, TT 25; Smith-Hurd Rev. St. 1925, p. 1996) defines the term in substantially the same language.

In section 2 of the act commonly known as the Municipal Ownership Act, passed in 1913 as a companion measure with th'e original Public Utilities Act (Cahill’s St. ch'. Illa, 2; Smith-Hurd Rev. St. 1925, p. 2021) the definition is as follows:

“The term ‘public utility,’ when used in this Act, means and includes any plant, equipment or property, . used . . . for or in connection with the transportation of persons or property or the conveyance of telegraph or telephone messages; or for the production, storage, transmission, sale, delivery, or furnishing of cold, heat, light, power, water, or for the conveyance of oil or gas by pipe line; or for the storage or warehousing of goods; or for the conduct of the business of wharfinger,”

The Municipal Ownership Act provides that any city shall have the power, subject to the provisions of the Act, to acquire, construct, own and operate any public utility, the product or service of which, or a major portion thereof, is ór is to be supplied to the city or its inhabitants, and to contract for, purchase and sell to private businesses or corporations, the product or service of such utilities; and to make all needful rules and regulations in relation thereto. (Cahill’s St. ch. 111a, fll; section 1, Smith-Hurd Rev. St. p. 2021.) The court in the case of Springfield Gas & Electric Co. v. City of Springfield, 292 Ill. 236, in discussing the intention of the legislature in passing the Public Utilities and Municipal Ownership Acts, said: “The statute, we must infer, was adopted in accordance with a plan. (State v. Gants, 124 La. 535.) That plan was, that all private corporations owning and operating public utilities should be bound by all the provisions of the act and that all municipal corporations should be excluded from the provisions of the act. Public utilities owned and operated by municipalities were to be governed and controlled by the provisions of the Municipal Ownership act and regulated only by such municipalities.”

A city has the right to manufacture electricity and sell the same to its inhabitants or it may purchase the same elsewhere and resell it. A city, in acting as a public utility, does so in its proprietary capacity. There is nothing in either the Commerce Commission or the Public Utilities Act, which prohibits a city from purchasing electricity from a public utility. Section 81, article 6, of the Commerce Commission Act, Cahill’s St. ch. 111a, If 100, provides that subject to the provisions of that article a city shall have power with respect to public utilities furnishing services within the limits of such city, except railroads, to regulate the quality, adequacy and safety of said service, and to determine and prescribe just and reasonable rates or other charges for any service, product or commodity rendered within such city by any public utility, etc. This section further provides that nothing in said article shall be considered to conflict with powers conferred by the act upon the commerce commission, so far as the exercise of such powers by the commission is necessary or appropriate to its authority with respect to public utilities, under the jurisdiction of the commission. The mere fact that a corporation doing a public utility business sells a part of its product to a municipality does not thereby ipso facto deprive it of its character as a public utility and remove it from the supervision of the commerce commission. It is also alleged in the bill of complaint that appellees are selling electricity to and are soliciting such business from numerous persons, industries and municipalities within the field of appellant. Appellees may still be public utilities although some of its customers may be municipalities. The question involved on this appeal is whether, under the facts alleged in the bill, the appellees are acting as public utilities in the territory mentioned without a lawful right to do so. The allegations in the bill, that among the customers of appellees, to whom they are furnishing electricity, are several municipalities, do not have the effect of stating facts which conclusively show that appellees are not public utilities as contended by counsel for appellees. If it should be conceded that the commerce commission would have no supervision or regulation of the rates to be charged by appellees to such municipalities or of the adequacy or efficiency of the service rendered, yet if all the facts alleged in the bill show that appellees are, in fact, assuming to be public utilities, and exercising the functions thereof, they will be considered public utilities and subject to the provisions of the Commerce Act, except in regard to the matters mentioned. Whether an instrumentality which sells oleotricity is a public utility or not is purely one of fact. Highland Dairy; Farms Co. v. Helvetia Milk Condensing Co., 308 Ill. 294. The case of the Illinois Power & Light Corp. v. Commerce Commission, supra, in which the Consol Power Company was appellee, was an appeal from a judgment of the circuit court confirming an order of the commerce commission granting to said appellee a certificate of convenience and necessity, and the same facts, in so far as the Consol Power Company is concerned, appeared in that case as are alleged in the bill in the case at bar. In that case it appeared that the coal company, one of the appellees here, for the purpose of selling its surplus electric power, had erected a transmission line to the village of White City, which owned its own distribution system, but bought the electricity from the coal company. The latter also sold power to 23 consumers who lived just outside the corporate limits of the city of Staunton and also to five or six employees living in company houses along the transmission line. A quo warranto proceeding was brought against the coal company challenging its right to engage in the business of rendering electric service to private consumers. To avoid the effect of this suit, the Consol Power Company was organized by the coal company, to which was granted a certificate of convenience and necessity to engage in the • business of rendering electric service along the route of the present electric line of the coal company, except in so far as the right to render service in such territory was granted to the Illinois Power and Light Corporation under a certificate issued June 25, 1923. The court there held: “Before appellee was organized appellant was in the field operating a public utility fully equipped to adequately serve all the consumers in the territory. Appellee was organized for the purpose of providing a means to dispose of a temporary excess of electric energy which the Consolidated Coal Company had the equipment to produce. The total amount of. the authorized capital stock of (defendant) appellee is $5,000, and all of this stock is owned by the coal company and its officers. Appellee owns no power station, transmission lines or electrical equipment of the character used and useful in'the operation of a public utility; nor does it have a contract with any person or corporation to furnish the necessary current to render the service required. It is clear from the evidence in the record that appellee was organized for the purpose of securing a certificate of convenience and necessity to continue the public utility business theretofore conducted by the Consolidated Coal Company, and that the facilities of the Consolidated Coal Company are to be the only facilities of appellee. It is equally clear that appellant is able and willing to serve the twenty-five or thirty consumers who live outside the corporate limits of Staunton who have been served from the transmission line of the coal company. All of the persons within the territory which appellee proposes to serve are within one mile of an existing line of appellant. The Public Utilities act provides the means for compelling appellant to provide adequate service for the public in the territory which it serves. If the company now occupying the territory is incapable of providing adequate service, then, and not until then, will a situation arise when the public convenience and necessity may require the establishment of another utility.” The judgment of the circuit court was. reversed and the order of the commission set aside. It will be noted that in the above case the village of White City owned its own distribution system but bought its power from the coal company. The effect of this decision was to hold that both the Consolidated Coal Company of St. Louis and the Consol Power Company w;ere public utilities and had no right to sell electricity in the field already occupied by appellant. The only difference between that case and the one under consideration, so far as the Consol Power Company is concerned, is that appellees, in addition to rendering service to the village of White City, are attempting to extend their lines and render service to additional municipalities. All the municipalities mentioned in the bill are within one mile of the transmission lines of appellant. In regard to the appellee, Consolidated Coal Company of St. Louis, additional facts are alleged in the amendment to the bill, wherein it is set out that a few months prior to the filing of the bill the coal company obtained from the secretary of state increased power in its charter by which it was authorized to engage in the business of manufacturing, generating and selling electric power and current by special contracts only, to such customers, in such quantities and at such times and places and on such terms as it might elect, and that since the coal company had obtained such increased charter power both appellees have been doing a public utility business and have entered into contracts with the cities of Staunton and Mount Olive, and the village of White City, in violation of law. Counsel for appellees insist that by this amendment the bill shows that the coal company is not a public utility for the reason that it does not hold itself out to sell electricity to the public generally, but only sells the same to selected customers and therefore does not come within the definition of a public utility. While the charter powers of a corporation may be inquired into to determine whether it is authorized to act as a public utility, yet the fact that it may not have such power to so act is not conclusive that it is not, in fact, acting as a public utility. Such a corporation may unlawfully assume to be a public utility and render public utility service in violation of its charter powers. As stated before, whether a person, partnership or a corporation is a public utility is one of fact. If the acts of the coal company, as alleged in the bill, constituted a public utility, then the sufficiency of the bill is established. The alleged increased charter powers of the coal company assume to grant to it the right to manufacture and sell electric power, not only within the territory mentioned in the bill, but throughout the State of Illinois. Under this charter, if upheld, it could extend its lines anywhere within the State, sell its electric power to anybody who might wish to purchase it, under any rates it might see fit to charge and claim that all such sales were of a private character and consequently it was not a public utility nor under the supervision or regulation of the commerce commission. It could invade any field already occupied by a legitimate public utility. Such a condition would create a far more ruinous competition than existed before the passage of the Public Utilities Act for the reason that a legitimate public utility, established in a certain field, would be, at all times, bound by the orders, rules and regulations of the commerce commission in regard to its rates, the extension of its lines, the adequacy of its service and in many other restrictive respects, while the other would be free and unrestricted by any such rules and regulations. No lawful public utility could exist with such a competition. The purpose and object of the Public Utility Act is to prevent such ruinous competition. Under the rule contended for by appellees any now existing public utility corporation could have its charter amended in like manner and thus nullify entirely the Commerce Commission Act, Cahill’s St. ch. 111a, 16 et seq. The case of Highland Dairy Farms Co. v. Helvetia Milk Condensing Co., supra, was decided purely upon the question of fact whether the evidence showed that the appellees therein assumed and exercised the powers of a public utility. The majority of the court held that under the evidence introduced they had not assumed and exercised such power. One of the justices dissented from this finding of fact, and upon the theory that the proofs showed that the appellees had assumed and exercised the powers of a public utility, in his dissenting opinion said: “The appellees have assumed and exercised the powers of a public utility and enjoyed the resulting benefit but have discriminated between applicants for service and selected favored persons and corporations. It is not their privilege to say that they are absolved from the duties and obligations of a public utility because they have not been lawfully authorized to engage in the business to which such duties and obligations attach.” As stated before it has already been held in the case of Illinois Power S Light Corp. v. Commerce Commission, supra, that before the coal company had procured an enlargement of its charter powers, as aforesaid, both it and the Consol Power Company were assuming to act as public utilities. In our opinion such enlargement of the charter powers of the coal company, while still acting in the same manner as shown in the last-mentioned case, does not change its character from that of a public utility. If a person or corporation assumes to act as a public utility and exercises the powers thereof, although unlawfully, it will be considered a public utility. If such were not the true rule then the present public policy of this State would be of no force or effect. In our opinion the facts as alleged in the bill are sufficient to charge appellees with being public utilities.

It is further contended that the bill is fatally defective because the municipalities mentioned have not been made parties'thereto for the reason that the bill seeks to have their contracts with appellees declared null and void and that appellees should have the right to appear and defend the same. While it is alleged in the bill as the pleader’s conclusion of law that said contracts are void, the prayer for relief does not seek to have said contracts so declared or set aside or any relief in regard to them. The only relief sought by the bill is to restrain the appellees from acting as public utilities within the field now occupied by appellant. The other allegations in regard to the making of the contracts by appellees and the municipalities are simply allegations of facts tending to show that appellees are assuming to act as public utilities. The rights of appellant are not dependent upon the validity or invalidity of these contracts and cannot be abated or destroyed by contracts entered into between appellees and third parties. The municipalities were not necessary parties, otherwise every person, industry or other customer to whom appellees claim they are furnishing electricity by a private contract would likewise have to be made a party to the bill.

In our opinion the circuit court erred in sustaining the demurrer to the amended bill. The decree is therefore reversed and cause remanded with directions to vacate the order dismissing the amended bill for want of equity and to overrule the demurrer thereto.

Reversed and remanded with directions.


source: Caselaw Access Project

author: Mr. Presiding Justice Gridley

license: Public Domain

text:
    The People of the State of Illinois ex rel. Joseph E. Lindquist, Petitioner and Defendant in Error, v. Commonwealth Edison Company et al., Defendants. John J. Nolan, Plaintiff in Error.
    Gen. No. 32,884.

      Heard in the second division of this court for the first district at the June term, 1928.
    Opinion filed January 7, 1929.
    John F. Tyrrell, John F. Higgins and Myer H. Gladstone, for plaintiff in error; Louis Greenberg, of counsel.
    Isham, Lincoln & Beale, for defendants; Charles D. Albright, of counsel.
    Kern, Stiefel & Stiefel, for defendant in error; Charles W. Stiefel, Jr., of counsel.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

In a mandamus proceeding, commenced August 11, 1927, the following judgment order was entered by the. superior court on August 19, 1927:

“On motion of attorney for petitioner it is hereby ordered that the special appearance on behalf of John J. Nolan be .stricken for the reason that the same was filed subsequent to time allowed therefor and said defendant be adjudged in default herein; that defendant, Commonwealth Edison Company, permit petitioner to transfer certificates for shares of its capital stock to his name and issue to petitioner, Joseph E. Lindquist, new certificates for shares of its capital stock as prayed in the petition herein filed; that defendants, Richard Mueller and Edward J. Doyle, sign said certificates of stock when so issued and that defendant, Illinois Merchant Trust Company, register and countersign said new certificates when presented for registration.”

On August 27, 1927, the court entered a further order, nunc pro ñmc, as of August 19th, allowing Nolan 90 days within which to file a bill of exceptions, and also an appeal to this Appellate Court upon his filing bond with surety in the sum of $50,000, in 30 days from August 19th.

The transcript of the record does not disclose that Nolan filed either an appeal bond or a bill of exceptions, but it does disclose that on September 17,1927, he sued out from the Supreme Court a writ of error to reverse the judgment and was granted a supersedeas— he having filed a bond in the sum of $15,000. Thereafter he assigned errors on the record and the other four defendants joined in the prosecution of the writ of error. On April 11, 1928, the Supreme Court transferred the cause to this Appellate Court because “no constitutional question” is involved, and on May 18th the transcript of the record, an abstract thereof and the briefs of the parties were filed in this court. Subsequently, additional briefs were filed by Nolan and petitioner respectively.

Nolan was not made a party to the petition as originally filed. There were five defendants named, viz., Commonwealth Edison Company, Doyle, Mueller, the Illinois Merchants Trust Company, and N. F. Jewett. Summons in the usual form was issued on August 11, 1927, returnable on August 17th. All these defendants were served on August 12th, except Jewett. On August 13th, on petitioner’s motion, the court ordered that Nolan be made an additional party defendant and that summons issue. Apparently this action was taken in accordance with section 7 of the Mandamus Act, Cahill’s St. 1927, ch. 87, p. 1622. The summons, issued August 13th, commanded the sheriff to summon Nolan, “impleaded with” the other defendants (naming them), to appear on August 18, 1927, “to answer unto the people of the State of Illinois, on the relation of Joseph E. Lindquist in his certain Petition for Mandamus heretofore filed in said Court.” Nolan was served on August 17th.

In the petition Lindquist alleged in substance that on July 30, 1927, he purchased for a valuable consideration from Mrs. Josephine Nolan six certificates, aggregating 250 shares, of capital stock of the Commonwealth Edison Company (hereinafter referred to as Edison Co.), which certificates had originally been issued to John J. Nolan, and thereafter by him sold and assigned to Mrs. Josephine Nolan, as evidenced by indorsements thereon signed by him on December 21, 1926 (copies of certificates and indorsements are set out in haec verba, as well as copies of certain by-laws of the Edison Co., relating to transfers of stock); that, as appears from other indorsements on the certificates, Mrs. Josephine Nolan, on July 30,1927, sold, assigned and transferred the same and the stock represented thereby to petitioner, and appointed him as her attorney to transfer the stock on the books of the Edison Co.; that on August 11, 1927, petitioner presented to the proper officer of the Edison Co., Bichard Mueller, the six certificates so indorsed, together with a written notice of petitioner’s purchase of the stock and of the assignment thereof to him, and a demand on the Edison Co. for permission to transfer the certificates and stock to him on the books, and for the issuance of new certificates to him (copies of the notice and demand are set out in haec verba); that Mueller and the Edison Co. refused and still refuse to comply with the demand or to transfer the stock or issue new certificates; that Edward J. Doyle is the vice president of the Edison Co. and duly authorized to sign certificates of its stock, and that the Illinois Merchants Trust Company is the duly appointed registrar of the stock of the Edison Co. The prayer of the petition is that a writ of mandamus issue, directed to said defendants, Edison Co., Doyle, Mueller, and the Trust Co., commanding Mueller to produce the books of the Edison Co. for the purpose of having the stock transferred to petitioner; and commanding him and the Edison Co. to forthwith issue to petitioner new certificates of stock, etc.; and commanding Mueller and Doyle to forthwith sign them when issued; and commanding the Trust Co. to forthwith register and countersign them when issued.

On August 17, 1927, the defendants, Mueller, Doyle and the Edison Co., each filed separate verified pleas, which are substantially the same and to the effect that on July 7, 1927, the Edison Co. was served with a notice or “stop transfer order” (copy attached); and that on August 5, 1927, there was filed with it an affidavit signed by John J. Nolan (copy attached). In the notice referred to, Nolan asked the Edison Co. to “place a stop transfer” on the six certificates (describing them) “until this order be revoked in writing.” In the affidavit, sworn to on August 5th, Nolan states that he is the owner of the certificates; that the name “John J. Nolan,” purporting to be his signature affixed to the assignment blank on the reverse side of each certificate is not his signature, and is in each case a forgery; that he never verbally, in writing, or in any manner, authorized any person to affix his signature to the certificates or any of them, and that he never delivered the certificates to anyone with the intention of transferring his title thereto. On August' 17th, also, the Trust Co. filed its answer to the petition, admitting that it is the registrar of certificates of stock of the Edison Co., and alleging that no certificates issued in petitioner’s name have been presented to it (the Trust Co.) for registration, and that when they are duly presented it will be ready and willing to register the same.

Nolan did not enter his appearance on the return day (August 18th) of the summons served upon him. On the following day, August 19th, petitioner appeared and asked that Nolan’s default be taken for want of an appearance. On that day Nolan, by attorney, entered a “special and limited appearance for the sole purpose of moving to quash the summons and process herein and contesting the jurisdiction of the court over this defendant.” Although there is no bill of exceptions contained in the present transcript, disclosing what occurred before the court on that day, we are informed by statements made in the printed briefs of two of the parties that there was a hearing. In Nolan’s brief filed in the Supreme Court, after stating that Nolan’s special appearance “was stricken on the ground that it had been filed too late,” it is stated that “thereupon the cause was heard, and what purports to be an order compelling the delivery of new certificates of stock was entered, without directing that the writ issue. ’ ’ In the brief of the other defendants, Edison Co., Doyle, Mueller, and the Trust Co., filed in the Supreme Court, it is stated that the judgment order in question was entered “after the hearing of evidence in support of the petition, tending to establish the authenticity of Nolan’s signature to the assignment to Mrs. Nolan.” It thus sufficiently appears that Nolan preferred not to enter a general appearance and contest the transfer of. the stock, as prayed for, on the ground of the claimed forgery of his signature to the assignments to Mrs. Josephine Nolan, and determined then to rest his whole case on the claimed want of jurisdiction of the court over his person.

The main contention urged in this court by counsel for Nolan is that the judgment order should be reversed, because “the summons issued against Nolan is void on its face and did not confer jurisdiction upon the court either to default him or hear the cause.”

Section 15 of the present Practice Act of 1907 reads as follows, Cahill’s St. 1927, ch. 110, p. 1944:

“It shall not be necessary hereafter in any action of mandamus or quo warranto, to set out the cause of action in the writ, but it shall be sufficient to summon the defendant in a summons in the usual form, commanding ¡the defendant to appear and answer the plaintiff in an action of mandamus or quo warranto, as the case may be, and the issue shall be made up by answering, pleading or demurring to the petition, as in other cases.”

This section is identical with section 10 of the Practice Act of 1872. (Hurd’s St. 1874, ch. 110, p. 776.) In 1874 the legislature passed an act “to revise the law in relation to mandamus,” which is now in force and known as the “Mandamus Act,” chapter 87, of our statutes, Cahill’s St. 1927, p. 1622. This act did not expressly repeal said section 10 of the Practice Act of 1872, so far as it related to mandamus cases. (Hurd’s St. 1874, ch. 87, pp. 691-692.) By said section 10, and said Mandamus Act of 1874, the practice in mandamus proceedings was changed materially (Rowe v. People, 96 Ill. App. 438, 441), and such a proceeding became “an ordinary action at law in cases where it is the appropriate remedy.” (People ex rel. Sullivan v. Weber, 86 Ill. 283, 285), and the petition took the place of the former alternative writ. (People ex rel. Chicago & I. R. Co. v. Glann, 70 Ill. 232, 233.) Sections 1, 2, 3 and 7 of the Mandamus Act of 1874, Cahill’s St. ch. 87, fifí 1, 2, 3 and 7, are as follows:

“Section 1. That upon the filing of a petition for a mandamus, the clerk of the court shall issue a summons, in like form as other summons in suits at law, commanding the defendant to appear at the return term thereof, and show cause why a writ of mandamus should not be issued against him. If the summons is issued ... in term time, it may be made returnable on any day of the term not less than five days after the date of the writ.
“§ 2. Every defendant who shall be served with summons shall be held to show cause by answer to the petition, or to demur thereto, on the return day of the summons, or within such further time as may be allowed by the court; and in default thereof, judgment may be taken nil dicit, and a peremptory mandamus shall be allowed against the defendant.
“ § 3. The court in which any such petition is filed may allow the petitioner or any defendant such convenient time to answer, plead, reply, rejoin or demur as shall be deemed just and equitable.
“§ 7. If after the filing of any such petition, any other person than the original defendant shall appear to the court to have or claim any right or interest in the subject matter, such person may be made a defendant, and may be summoned, and appear and plead, answer and demur in the same manner as if he had been made defendant to the original petition.”

In 1874 also the legislature passed an act “to revise the law in relation to quo warranto.” Cahill’s St. 1927, ch. 112, p. 1993. Section 2 of that act is similar to section 1 of said Mandamus Act, and provides:

“If the information is filed . . . in term time, it may be made returnable on any day of the same term, not less than five days after the date of the writ, as shall be directed by the court. ’ ’ And section 4 of the Quo Warranto Act, Cahill’s St. ch. 112, if 4, is similar to section 2 of the Mandamus Act, Cahill’s St. ch. 87, if 2. In 1907, the legislature passed the present Prac-^ tice Act, section 15, Cahill’s St. ch. 110, if 15, of which, relating to actions of mandamus and quo warranto, is identical with section 10 of the Practice Act of 1872. And section 1 of the present Practice Act, concerning process, form of summons and when returnable, is identical with section 1 of the Practice Act of 1872. Cahill’s St. 1927, p. 1942; Hurd’s St. 1874, p. 774. It provides in part: ‘ ‘ The first process in all actions to be hereafter commenced in any of the courts of record in this State shall be a summons, except actions where special'bail may be required; which summons . shall be made returnable on the first day of the next term of the court in which the action may be commenced. If ten days shall not intervene between the time of suing out the summons and the next term of court, it shall be made returnable to the succeeding term. . . .”

In the case of People v. Moeckel, 256 Ill. 598, a quo warranto proceeding, it is decided, for reasons stated in the opinion: (1) That the Practice Act of 1907 did not repeal, expressly or by implication the provision of section 2 of the Quo Warranto Act of 1874, Cahill’s St. ch. 112, If 2, which authorizes a summons issued in term time to be returnable at the same term, not less than five days after the date of the writ, and (2) that said section of the Quo Warranto Act was intended to provide a different procedure for summoning defendants in quo warranto proceedings from that provided by the Practice Act for ordinary civil actions at law. We are not advised that our Supreme Court has rendered a similar decision as regards section 1 of the Mandamus Act of 1874, Cahill’s St. ch. 87, If 1, but we can see no reason why the decision is not equally applicable to said section 1 of said Mandamus Act, and we hold that said section of said Mandamus Act was" intended to provide a different procedure for summoning defendants in mandamus proceedings from that provided by section 1 of the present Practice Act, Cahill’s St. ch. 110, if 1, for ordinary civil actions at law, and that where a summons is issued in term time in a mandamus case “it, may be made returnable on any day of the term not less than five days after the date of the writ,” and that, where a new party has been made a defendant to a petition previously filed, and a summons ordered to issue as to him, the writ of summons may be made returnable on a day not less than five days after the date thereof, as is the clear import of section 7 of the Mandamus Act, Cahill’s St. ch. 87, ff 7.

But, it is further contended by counsel that, inasmuch as the date of the summons issued against Nolan was August 13, 1927, and it was made returnable on August 18th, “five full days” did not intervene between the date of the writ and the day on which he was required to appear, and that, hence, the writ was void and the court did not acquire jurisdiction of Nolan’s person. Although certain cases decided in other jurisdictions are cited by counsel to sustain the contention, we are of the opinion, in view of our statute as to rules of construction of statutes, and of numerous decisions in this State, that the contention is without merit. In section 1 of chapter 131, entitled “Statutes,” Cahill’s St. 1927, p. 2430, is the following rule: “Eleventh — The time within which any act provided by law is to be done shall be computed by excluding the first day and including the last, unless the last day is Sunday, and then it shall also be excluded.” August 18, 1927, was a Thursday. In Ewing v. Bailey, 4 Scam. (Ill.) 420, it appears that Bailey recovered a judgment before a justice of the peace against Ewing on April 16, 1842; that on May 5th Ewing entered into an appeal bond before the justice, which was approved by the latter on that day; that the' justice filed the bond and papers of the case with the clerk of the circuit court on May 25th; that by a statute then in force the justice was required to file the bond and other papers in the case in the office of the clerk of the circuit court “within twenty days after the approval of the bond,” and that subsequently in the circuit court, on Bailey’s motion, Ewing’s appeal was dismissed. In holding that this ruling was erroneous our Supreme Court said (p. 421): “The only question sought to be decided in the case is, whether the justice complied with this provision of the statute. The proper mode of computing time, where an act is to be performed within a particular period from or after a specified day, is to exclude the day named, and include the day on which the act is to be done. For example, a promissory note executed on the first day of the month, and payable in twenty days from date, falls due on the 21st of the month; in reckoning the time the day of the date is excluded, and the day on which the maker is required to pay is included. By this rule, the day on which the appeal bond was executed was to be excluded in the computation of the 20 days, and the justice had the whole of the 25th day of May in which to file the papers.” This decision as to the correct mode of computing time has been followed in the cases of People ex rel. Harless v. Hatch, 33 Ill. 9, 138; Vairin v. Edmonson, 5 Gilm. (Ill.) 270, 272; Bowman v. Wood, 41 Ill. 203, 205; People v. Snow, 279 Ill. 289, 291. In said Bowman case, it is decided that, in cases of service of a summons, the day it was made is to be excluded and the return day may be included; and that, where there are 10 days, after excluding the day on which service is made, before the first day of the term to which a summons is returnable, the service is in time and will support a judgment by default, entered on a day subsequent to the first day of the term. In the present case the order of default and judgment was entered on the day after the summons against Nolan was returnable. (See also Central Trust Co. of Illinois v. Loeff, 213 Ill. App. 337-340.)

Counsel further contend that the writ of summons is void, because, in addition to requiring Nolan to appear on August 18, 1927, and “answer unto the People,” etc., it did not contain the words “and show cause why a writ of mandamus should not be issued against him.” We regard this contention as captious. Section 15 of the Practice Act, Cahill’s St. ch. 110, |f 15, provides that, in a mandamus case, “it shall be sufficient to summon the defendant in a summons in the usual form, commanding the defendant to appear and answer,” etc. Furthermore, as we read section 1 of the Mandamus Act, Cahill’s St. ch. 87, ffl (which contains the words referred to by counsel) together with section 2 of the act, said words are not required to be stated in the writ, but it is sufficient if a defendant be commanded therein to appear on the return day. After he has appeared he may demur, plead, or file an answer, to the petition of the relator, and in any such manner “show cause why a writ of mandamus should not be issued against him.”

Counsel further contend that the judgment order should be reversed because the record does not affirmatively disclose, after Nolan had filed his special appearance questioning the jurisdiction of the court over his person, that he was served with any notice of petitioner’s application to default him. The contention is without merit. In the absence of a bill of exceptions, it will be presumed that he did have such notice (Szatkowski v. Catholic Order of Foresters, 78 Ill. App. 484, 487; McGuire v. Gilbert, 80 Ill. App. 235, 238); that the default was regular (Baldwin v. McClelland, 50 Ill. App. 645, 654), and that sufficient facts appeared on the hearing to warrant the court’s judgment. (Baldwin v. McClelland, 152 Ill. 42, 52.)

Counsel finally contend that the judgment order should be reversed because it does not in form award a writ of mandamus. In West Chicago St. R. Co. v. People, 214 Ill. 9, 22, it is said: “There should be a judgment entered in form awarding the writ before the peremptory mandamus is issued.” In that case, as in the present one, the judgment "did not in form award such a writ, yet it is also stated that “the order of the circuit court was doubtless intended as a final judgment in that court,” and the Supreme Court ordered (p. 23) that “final judgment will be entered in this court awarding-a peremptory writ of mandamus according to the prayer of the petition, and the cause will be remanded to the circuit court with directions to issue a writ of mandamus accordingly.” A similar ruling will be made here, and, accordingly under the authority of McNulta v. Ensch, 134 Ill. 46, 56, the judgment order in question will be reversed, and the cause remanded with directions to the superior court to enter a final judgment in the form that it should have been entered, viz., striking the special appearance of the defendant, John J. Nolan, from the files and adjudging him to be in default; and adjudging that‘a writ of mandamus forthwith issue commanding the defendant, Commonwealth Edison Company, to permit petitioner to transfer the 250 shares of its capital stock, as represented by said six certificates, to his own name, and to issue forthwith to petitioner new certificates for said shares; and commanding the defendants, Richard Mueller and Edward J. Doyle, to sign said new certificate when issued; and commanding the defendant, Illinois Merchants Trust Company, to register and countersign said new certificates when presented for registration.

Reversed and remanded with directions to enter a similar judgment, though in different form, against defendants.

Soanlan and Barnes, JJ.s concur.


author: Mr. Justice Boggs

text:
    J. J. Martin et al., Appellants, v. Berthold Heymann et al., Appellees.
    Gen. No. 7,842.

      Heard in this court at the October term, 1927.
    Opinion filed May 11, 1928.
    Rehearing denied January 28, 1929.
    Walter C. Schneider and H. H. Whittemore for appellants.
    Luther B. Bratton and Claude M. Granger, for H. F. Ruel, appellee.
   Mr. Justice Boggs

delivered the opinion of the court.

A bill was filed in the circuit court of Kankakee county by appellants, Don A. Bradley, The Tribune Company and Arbuckle Brothers, against the Chicago, Kankakee, Watseka and Danville Motor Truck Line, Berthold Heymann, Edward Regnier, Arthur J. Sadler, William Comstock, D. F. Lavoie and appellee Henry F. Ruel, seeking to recover from said defendants certain amounts alleged to be owing by said corporation to said complainants. No service was had on the defendant Heymann. Regnier and Lavoie were served with process, but failed to answer. Answers were filed by appellee Ruel and by the defendant Sadler. An answer, purporting in its caption to be the answer of said corporation, was filed by S. B. Durfee as its trustee in bankruptcy. At the conclusion of the hearing, no proof having been offered by the complainants Bradley, The Tribune Company and Arbuckle Brothers, they were dismissed from said proceedings. The bill was also dismissed as to the defendant Comstock. The court entered a decree dismissing the bill “for want of equity and jurisdiction.” To reverse said decree, this appeal is prosecuted.

The bill charges among other things that on August 12, 1920, Heymann, Begnier, and appellee Buel filed a statement to organize said corporation for the purpose of operating a truck line between the cities of Danville and Chicago, $25,000 of the capital stock of the par value of $10 per share to be issued at once, to be paid for as follows: Five hundred dollars cash and $24,500 by property to be transferred to the proposed corporation; that Heymann had subscribed for 1,200 shares of said stock, Begnier for 500 shares, Sadler for 300 shares, LaMarre for 50 shares and appellee Buel for 450 shares; that Heymann, Begnier, Sadler, LaMarre and appellee were to act as directors of said proposed corporation for the term of one year.

The bill further charges that the property transferred consisted of certain automobile trucks, office furniture, fixtures, tools, etc.; that certain of said property was subject to mortgage, and that it was greatly overvalued; that in May, 1921, said corporation was adjudged a bankrupt and S. B. Durfee was appointed trustee in bankruptcy. It was on the charge of overvaluation that the bill for relief was based.

Appellee Buel is the only defendant who appeared in this court and filed a brief. Without going into an extended discussion of the evidence, we hold that it was sufficient to warrant a finding that the property transferred in payment for said stock was greatly overvalued; that appellants have valid and subsisting claims against said corporation and against the subscribers to the stock of said corporation. That being the state of the record, the question presented by the assignment of errors is as to whether the court was warranted in dismissing said bill.

It is insisted by counsel for appellee “that the circuit court had no jurisdiction of the subject matter of this suit.”

It is conceded by appellants and by appellee that this bill was filed under section 53 of the Corporation Act, Cahill’s St. ch. 32, 53. That section provides, among other things:

“After an adjudication of bankruptcy, or after an execution has been so returned, or has remained unsátisfied for more than ten days, after a demand made, or after a dissolution or cessation of business ^leaving debts unpaid, any creditor may bring suit in equity, in any court having general jurisdiction in the county within which the principal office of the corporation is located on behalf of himself and of all other creditors of the corporation, against all persons who are liable in any way for the debts of the corporation, by joining the corporation in such suit.”

It is strenuously insisted that the jurisdiction of the subject matter of this proceeding in the trial court depended upon obtaining service on said corporation or upon said corporation in some way submitting itself to the jurisdiction of the court.

“If the pleadings state a case belonging to a general class over which the authority of the court extends, then jurisdiction attaches and the court has power to hear and determine the issues involved.” 7 R. C. L. 1030, § 57.

“Jurisdiction is the power to hear and determine the subject matter in controversy between the parties to a suit. If the law confers the power to render a judgment or decree, then the court has jurisdiction, ’1 O’Brien v. People, 216 Ill. 35A-363, citing Applegate v. Lexington & Carter County Min. Co., 117 U. S. 267; Franklin Union, No. 4 v. People, 220 Ill. 355-366.

“Jurisdiction of the particular matter does not mean simple jurisdiction of the particular case then occupying the attention of the court, but jurisdiction of the class of cases to which the particular case belongs.” O’Brien v. People, supra; Franklin Union, No. 4 v. People, supra, 366.

“Whether a complaint does or does not state a cause of action is, so far as concerns the question of jurisdiction, of no importance, for if it states a case belonging to a general class over which the authority of the court extends, then jurisdiction attaches and the court has power to decide, whether the pleading is good or bad.” O’Brien v. People, supra; Franklin Union, No. 4 v. People, supra, 367; Elliott, General Practice, sec. 230; Hunt v. Hunt, 72 N. Y. 217; Winningham v. Trueblood, 149 Mo. 572.

In Franklin Union, No. 4 v. People, supra, the court at page 365 says:

“If, however, it were conceded that there was a defect of parties, that fact would not have deprived the court of jurisdiction to have heard and decided the questions before it, and its order granting the injunction would not have been void, and the respondents could not have justified their acts in violation of the injunction on the ground that there was a defect of parties to the bill.”
“As applied to the subject matter of a suit, jurisdiction is always conferred by law, and it is incorrect to suppose that the power to decide in any case rests solely on the averments of a pleading.” 7 R. C. L., supra.
“Jurisdiction, in the general and most appropriate sense of that term, as applied to the subject matter of a suit at law or in equity, is always conferred by law, and it is fatal error to suppose the power to decide in any case rests solely upon the averments in a pleading.” Thompson v. People, 107 Ill. 517-524.

The statute in question specifically confers on a court of equity jurisdiction in this character of case. The bill filed by appellants was filed under its provisions and prayed relief of the character provided for therein. The corporation was made a party defendant, thereby answering the requirements of said statute so far as the jurisdiction of the subject matter is concerned. Jurisdiction of the subject matter attached immediately upon the filing of the bill. The court, however, could not render a valid and binding decree against any defendant to the bill who had not been made a party. That would be because no jurisdiction of the person sought to be affected had been obtained, but not on account of lack of jurisdiction of the subject matter.

It is also insisted that “jurisdiction was lacking because the corporation was not in court.” The court having jurisdiction of the subject matter of said proceeding, in order to avail of the lack of service on necessary parties, appellee should have raised that question in the trial court.

“When the objection of non-joinder of a party is not taken by demurrer, plea or answer it will receive little favor from the courts, and to be of avail it must appear that the decree will have the effect of depriving the party omitted of his legal rights.” Pease v. Chicago Crayon Co., 235 Ill. 391-395, citing Chicago, M. & N. R. Co. v. National Elevator & Dock Co., 153 Ill. 70. To the same effect is State Nat. Bank of Springfield v. United States Life Ins. Co., 238 Ill. 148-158. In Gulick v. Hamilton, 287 Ill. 367, the court in discussing a question of this character at page 371 says:

“If the interest of an omitted party in the subject matter of a suit and the relief sought is so bound up with that of the other parties that his presence is an absolute necessity the court will reverse the decree, not on account of the defendant who makes the objection for the first time on appeal but because no effective decree can be made. That rule only applies where the interest is a present substantial one and where a decree will result in depriving the omitted party of some material right without a hearing. (Washburn & Moen Manf. Co. v. Chicago Galvanized Wire Fence Co., 109 Ill. 71; State Nat. Bank of Springfield v. United States Life Ins. Co., 238 id. 148; Pease v. Chicago Crayon Co., 235 id. 391; Granguist v. Western Tube Co., 240 id. 132.)”

Where the question of nonjoinder of a proper or necessary party is raised for the first time in a reviewing court, that court will not reverse the judgment or decree for that reason, unless it shall appear that the omitted party’s rights will be prejudicially affected if such reversal is not had. In this case, the answer of the trustee in bankruptcy is to the effect that there was not sufficient funds in the bankrupt estate to pay the preferred claims. That being true, the allowance of appellants’ claims would not affect said corporation or said preferred creditors. The law further is that as between said corporation and its stockholders, the corporation, having taken the property in question in payment for the stock issued, could not proceed against the stockholders on their subscriptions, for as to the corporation, the subscriptions had been paid. So far as the defendant corporation is concerned, its rights would not be affected prejudicially if it be held that it was not a party to this proceeding.

Appellants, however, insist that the answer filed by said trustee was sufficient to give the court jurisdiction of said corporation, under the holding of the Supreme Court in Edwards v. Schillinger, 245 Ill. 231. The court at page 245 said: “The relation of a stockholder who has not paid for his stock, to the corporation, is the ordinary one of debtor. (Parmelee v. Price, 208 Ill. 544.) If it was necessary that the corporation should be represented in the litigation, it was present in this case by the trustee in bankruptcy, who by the law represents and stands in the place of the corporation. The bankrupt corporation was in legal contemplation a party and all the stockholders except those who are insolvent were defendants. * * * There was no lack of jurisdiction in the court to hear and determine the case, nor any reason for declining to assume jurisdiction.”

Whether or not it be held that the answer of said trustee gave the court jurisdiction of said corporation under the cases cited, appellee is not in a position to complain, not having urged the matter of lack of jurisdiction-in the trial court.

The evidence developed on cross-examination by appellees was to the effect that the entire assets of the corporation, in the hands of said trustee, were sold for $500, which, after payment of costs of the bankruptcy proceeding, would be insufficient to pay even a small part of the preferred claims against said corporation.

It is next insisted that “the proof does not show the defendant (appellee Ruel) to have been a stockholder.”

The bill charges “that Henry F. Ruel subscribed for 450 shares of the capital stock of said corporation, a total of $4,500; that certificates for said stock were issued to the said Henry F. Ruel, but that the said Henry F. Ruel did not then and has not since paid for said stock. ’ ’ The answer of Ruel, among other things, states: “Further admits that said incorporators, Berthold Heymann, Edward Regnier and Henry F. Ruel, in said statement of incorporation also represented * * * that Henry F. Ruel had subscribed and paid the sum of $4,500 for 450 shares of the capital stock of said proposed corporation, and that Berthold Heymann, Edward Regnier, Arthur J. Sadler, E. J. LaMarre and Henry F. Duel had been elected directors of said corporation for the term of one year.” Said answer further averred that appellee Euel paid $500 in cash on his stock, and “that said Berthold Heymann subscribed for 400 shares of the capital stock of said corporation and placed it in the name of this defendant, Henry F. Euel, for the consideration and reasons hereinafter explained, and paid for said stock in property hereinbefore described, and said 450 shares of capital stock were first fully paid for in property of the said Berthold Heymann.”

In his testimony, Euel states: “I did say that there was never any stock issued, and if this is to be considered as stock issued, then I was wrong on that proposition, but I did not recall it, but this stock was issued through my ignorance.”

The record also discloses that appellee receipted for 450 shares of said stock. The evidence clearly is to the effect that appellee was a stockholder of said corporation.

-It is next insisted that “the defendant is not es-topped. ’ ’ Under this heading, counsel insist that there is nothing to show that appellants, in connection with the labor or property alleged to have been furnished by them, furnished the same on the credit of said corporation or of appellee. It is further insisted that at the time of the original incorporation there was no authority to issue stock, said corporation being a public utility; that what had been done prior to the granting of the order of necessity and convenience by said Public Utilities Commission was done in ignorance.of the law in reference thereto.

The certificate of incorporation was filed in August, 1920. The certificate of convenience and necessity was issued on February 1, 1921. The record discloses that appellee had in charge the matter of .obtaining the certificate of convenience and necessity, and for the issuing of stock under it, from the Public Utilities Commission, and that from the time he undertook to obtain said certificate from said commission said corporation was transacting business, incurring bills, etc., with his knowledge, acquiescence and consent as one of its directors. He therefore cannot, if it were otherwise proper, urge ignorance as a defense in this case. Having participated in the business of said corporation prior to the time of the authorization by the Public Utilities Commission for the issuing of stock, appellee is estopped to deny the liability of said corporation and his own as a subscriber to the stock thereof. Hickling v. Wilson, 104 Ill. 54-61; Curtis v. Tracy, 169 Ill. 233. In the latter case the court at page 237 says:

“It is well settled, that a stockholder cannot defend against a liability, which rests upon him for the benefit of corporate creditors, upon the ground that the corporation was not legally organized by reason of noncompliance with the terms of the statute providing for such an incorporation. (Hickling v. Wilson, 104 Ill. 54.) He is estopped by the act of subscribing for the stock from setting up such a defense.” Citing Wheelock v. Kost, 77 Ill. 296-299; Corwith v. Culver, 69 Ill. 502.

Under the foregoing authorities, appellee is estopped to deny his responsibility as a stockholder in said corporation.

It is next insisted that “under any view of the evidence, the defendant Ruel’s liability, if any, was discharged. ” It is only necessary to say that the evidence relied on as to appellee’s alleged expenditures on behalf of said corporation was not only not in harmony with his answer, but was not sufficient to show payment in full for stock subscribed, even if properly pleaded.

It is next insisted that the court was justified in rejecting the complainants’ claims as not established by the evidence.

What we have heretofore said in this connection is sufficient on this proposition. We hold that the point is not well taken.

Certain of the answers filed in said cause rely upon the 2-year statute of limitations, being, as we understand, based on the ground that if there was any right of recovery it was in the nature of a penalty and would be barred in two years. Under the provisions of the statute, this claim being based on the above-mentioned section 53 of the Corporation Act, Cahill’s St. ch. 32, 1Í 53, the statute of limitations would not run against the claims of appellants until five years after the same accrued. Parmelee v. Price, supra, 559.

For the reasons above set forth, the judgment of the trial court will be reversed and the cause will be remanded.

Reversed and remanded.


author: Mr. Presiding Justice Jones

text:
    Mable E. Sugru, Appellee, v. Highland Park Yellow Cab Company, Appellant.
    Gen. No. 7,852.

      Heard in this court at the October term, 1927.
    Opinion filed August 15, 1928.
    Rehearing denied January 28, 1929.
    Hall & Hulse and Silber, Isaacs, Silber & Woley, for appellant; A. A. Partlow, Albert Hall and Samuel Levin, of counsel.
    Clarence W. Diver and Cassels, Potter & Bentley, for appellee; Ralph F. Potter and George C. Bunge, of counsel.
   Mr. Presiding Justice Jones

delivered the opinion of the court.

Appellant is engaged in the taxicab business' at Highland Park in Lake county. On the evening of October 18, 1925, a call came to the company’s office for a taxicab to be sent to the residence of a Mr. Hoopes. The chauffeur picked up three passengers at that address and drove south on the Green Bay Road toward Chicago. It was a dark night. It bad "been raining and the moon and stars were obscured. About a half mile south of the Lake county line, at a place where the road goes through a forest preserve, the lights on the taxicab went out. The roadway at this point is concrete, 18 feet wide with a dirt shoulder two or three feet wide to the west of the pavement. Immediately to the west of this shoulder is an open ditch. The chauffeur drove the cab over to the west side of the road until the right wheels went off the pavement on the dirt shoulder as close to the ditch as the wet condition of the ground would permit. While the chauffeur was trying to find the trouble with the lighting system, one. of the passengers got out of the cab and went over to the east side and stood guard on the pavement. It was then about 9:30 o’clock in the evening.

Appellee was riding in an automobile, driven by her husband. As she was proceeding south along the highway, her car collided with the car of appellant, and she was thrown against the windshield, receiving the injuries for which this suit is brought. The declaration consisted of five counts. The first count charged general negligence. The other counts set up specific acts of negligence. Each count charged that appellant’s car was not provided with lights as provided by statute. To the declaration, the plea of the general issue was filed. At the close of appellee’s evidence and again at the close of all' the evidence, a motion was made by appellant to direct a verdict in his favor. These motions were overruled. A verdict was returned for appellee for $2,500, and judgment was rendered thereon.

It is urged that appellee was guilty of contributory negligence in driying her car at a dangerous rate of speed, considering the condition of the pavement and the place through which the road ran; that had she been observing the highway as she should have been, she would have seen appellant’s car and called her husband’s attention to it, in time to have avoided the collision, and that the record fails to disclose any negligence on the part of appellant because it was necessary for the chauffeur to park his car where he did in order to restore the lights.

Appellee claims that appellant’s cab was standing about the middle of the pavement, but the testimony to support that contention is based wholly on the position, of the cab after the impact. It seems to us that the weight of the evidence shows that its position at the time of the collision was as stated by appellant’s witnesses.

The headlights on the car in which appellee was riding were in good condition but were not turned on. The only lights on that car were the parking or cowl lights and a spotlight which appellee testified was lighting the road and focused about 16 feet ahead. She estimated she could see 60 feet ahead of the car by the spotlight.

The statute of this State provides that every motor vehicle shall carry two lighted lamps visible at least 200 feet in the direction towards which the motor vehicle is proceeding,,during the period from one hour after sunset to sunrise. The provisions of the statute are for the benefit not only of those who are using the highway ahead of the car, but also to enable those in driving the car to avoid accidents. (Johnson v. Gustafson, 233 Ill. App. 216.) Nonperformance of such statutory duty resulting in injury to another may therefore be said to be negligence as a conclusion of law. (Terre Haute & I. R. Co. v. Voellcer, 129 Ill. 540; Johnson v. Gustafson, supra.)

If the headlights had been lighted on the Sugru car as required by statute, the yellow cab of appellant would have been visible to appellee and her husband a considerable distance farther away than it was when only the parking lights and the spotlight were used. It is also probable that if the headlights had been lighted, they could have seen the man who was trying to stop them, in time to have avoided the collision. It is undisputed that the passenger who was standing on the east side of the cab was yelling and waving his arms in an attempt to stop the Sugru car, but that it did not stop and crashed into the rear end of the cab.

No reason is apparent why appellee did not know that the car in which she was riding was being driven without the headlights burning, or why she did not request her husband to turn on and use them. While it is true the negligence of her husband could not properly be imputed to her, still she was responsible for her own negligence if it contributed to her injury. Where the negligence of the person who receives the injury contributes to the injury, he cannot escape the consequences of his own carelessness. If the person riding in the vehicle knows that the driver is negligent and takes no precaution to guard against injury, he cannot recover, for, in such case the negligence is his own and not simply that of the driver. The plaintiff cannot lawfully omit to use care in blind dependence upon another, but must use care proportionate to the danger of which the facts convey knowledge. (Flynn v. Chicago City R. Co., 250 Ill. 460.)

The facts upon which it is sought to establish the charge of negligence against appellant are similar to those in the case of Frochter v. Arenholz, 242 Ill. App. 93. In that case the driver of a car had stopped upon the pavement to repair his lights, and another car collided with his car. In our opinion we Said: “The driver could not lawfully operate his truck upon the highway without lights while it was dark, and it seems that he acted as any reasonably cautious and prudent person would act under the circumstances. * * *

An accidental break in machinery, or a defect in the mechanism or parts peculiar to the car, often gives the person operating it no choice about leaving a car standing in the road until a remedy for the mishap is found.”

We think the evidence shows that appellant took every reasonable precaution to avoid the accident and that appellee was not in the exercise of due care for her own safety.

Appellee’s fourth instruction is inaccurate. It told the jury-that the negligence of the plaintiff’s husband, if any, is not a defense to this suit; that if they believe from the evidence that the plaintiff’s injuries were proximately caused by some negligence of the defendant shown by the evidence, if they believe such negligence has been shown, and if they further believe from the evidence that the plaintiff was not negligent at the time of or immediately before the accident, in any way which proximately contributed to her injury, their verdict must be for the plaintiff. The instruction is subject to the criticism that it does not confine the right of recovery to the ground averred in the declaration, but gives the jury the right to find the defendant guilty of some negligence not charged therein. (Chicago & A. R. Co. v. Rayburn, 153 Ill. 290; Lake Shore & M. S. Ry. Co. v. Probeck, 33 Ill. App. 145.)

The verdict was against the manifest weight of the evidence, and the judgment is reversed and the cause remanded.

Beversed and remanded.