of the purchase money to McKinley, or upon what terms he made the sale to him, except as a basis for determining the commission. McKinley testified that he did not act as a broker, and had not retained $15,000 of the purchase money, and had not retained anything as commission. There was no evidence tending to show that McKinley was the agent who made the sale, or that the plaintiff did not make it.

At the close of all the evidence, defendant presented an instruction directing a verdict in his favor, and the court refused it. The facts necessary to establish plaintiff's claim were testified to by him and by McKinley, and corroborated by other evidence; and, if such evidence was credited by the jury, it was sufficient to justify a verdict. It was therefore proper to refuse the instruction and submit the issues to the jury.

Defendant asked the court to give to the jury the following instruction: "If the jury shall believe, from all the evidence, that on or about the 24th day of June, A. D. 1896, the defendant in this cause, as party of the first part, contracted and agreed with one Henry P. Cox, of Portland, Maine, for the sale and transfer of the entire capital stock of the Joliet Street-Railway Company, together with the possession, management, and control of the property and franchises of said corporation, and that thereafter such contract was consummated by an execution thereof on the part of said defendant, then the plaintiff in this case cannot recover, and the jury will so find." There was no dispute that a contract was made with defendant by Henry P. Cox, and that the contract was consummated; and the instruction stated these undisputed facts, but ignored every fact which affected the rights of the parties to the suit. Although the contract was made with Cox, and was carried out, yet, if it was made under an agreement with plaintiff, and through his instrumentality, he was entitled to recover. The court was right in refusing the instruction.

Complaint is made that the court gave this instruction: "The court instructs the jury that if you believe from the evidence in this case that the defendant employed the plaintiff, Stewart, as his agent to negotiate the sale of his (the defendant's, street-railway property, and that the plaintiff undertook said employment, and was instrumental in bringing together the buyer and the defendant, then and in that case the plaintiff is entitled, as a matter of law, to recover from the defendant compensation for his services, regardless of the fact that the defendant himself concluded the sale, and upon a price less and upon terms different from those at which the plaintiff was authorized to sell." The instruction stated the law. Hafner v. Herron, 165 Ill. 242, 46 N. E. 211. It seems to be insisted by counsel that, unless McKinley was the agent of the plaintiff in negotiating the sale, the plaintiff could not recover. That is not so.

If plaintiff, as agent for the defendant, offered the property to McKinley, and thereby brought about a sale, it is wholly immaterial whether McKinley acted for himself, or for himself in connection with others, or for a syndicate. Whether he was himself the purchaser, or an agent of the real purchaser. was a matter of no concern to the defendant. The proof was undisputed that plaintiff introduced McKinley to the defendant, and that the sale resulted from such act of the plaintiff. He found a buyer whom defendant was willing to accept and did accept, whether such buyer was acting for himself or others.

The court gave two instructions at the instance of the defendant which were very favorable to such defendant, and which counsel says cannot be harmonized with the one above quoted, given for the plaintiff. The defendant could not object to those given at his instance, and, if he is not able to harmonize them with the correct instruction given for the plaintiff, it is not ground for reversal.

The defendant made a motion for a new trial on the ground of newly-discovered evidence, supported by affidavits of himself and Folk. The evidence set forth was cumulative, and not conclusive, and would not be ground for new trial. The affidavits amounted to but little more than statements that the memory of the parties making them was better after the trial than at the trial. The motion was properly overruled. The judgment of the appellate court is affirmed. Judgment affirmed.

(185 III. 413)

ODIN COAL CO. v. DENMAN. (Supreme Court of Illinois. April 21, 1900.)

MASTER AND SERVANT-INJURY TO SERVANT -EVIDENCE-MASTER'S VIOLATION OF STATUTE CONTRIBUTORY NEGLIGENCE MINE SHAFT.

1. Hurd's Rev. St. 1889. c. 93, § 6, provides that a sufficient light shall be furnished at the top of every shaft of a mine to insure the safety of persons getting on or off the cage; and section 8 requires that the top of every shaft shall be securely fenced by gates properly protecting such shaft; and section 14 provides that any injury arising from failure to comply with the provisions of the act shall give a cause of action. Held, that where a mine owner had erected above the opening of a shaft an uninclosed framework of timber, supporting a structure called a "tipple house." to which the cage could be hoisted, and through which the day shift entered and left the shaft, but it was customary to let off the night shift at the surface of the ground. and plaintiff's intestate, being one of the night shift. and endeavoring to alight, fell into the shaft and was killed (it being dark at the surface, and there being then no fence there), it was proper to submit to the jury the questions whether the surface or the tipple house was the top of the shaft, within the meaning of section 8, and whether the proximate cause of the injury was the absence of a light.

2. When an employé of a mine, endeavoring to alight from the cage at the surface opening of the shaft, fell into the shaft and was killed. the opening of the shaft being enveloped in darkness by reason of no sufficient light being furnished, as required by Hurd's Rev. St. 1889. c. 93. 6, contributory negligence of deceased

could be no defense to the mine owner in an action for damages for deceased's death, under chapter 93, § 14, providing that any injury from failure to comply with the provisions of the act shall give a cause of action.

3. Hurd's Rev. St. 1889, c. 93, § 6, provides that a sufficient light shall be furnished at the top of every shaft of a mine to insure the safety of persons getting on or off the cage; section 8 requires the top of every shaft to be securely fenced, to protect the entrance to the shaft; and section 14 declares that, for any injury to person or property by willful failure to comply with the provisions of the act, a cause of action shall accrue. Held that, where a declaration against a mining company alleged that plaintiff's intestate came to his death by defendant's willful omission to comply with sections 6 and 8, it was proper to refuse to allow officers of defendant to testify that they intended to comply with the statute in good faith, since the word "willful," as employed in the declaration, did not involve a charge of wrongful intent, but only that the omissions were conscious acts of the mind, and not from mere inadvertence.

Appeal from appellate court, Fourth district.

Action by Effie Denman against the Odin Coal Company. From a judgment of the appellate court (84 Ill. App. 190) affirming a judgment in favor of plaintiff, defendant appeals. Affirmed.

L. M. Kagy and Van Hoorebeke & Louden, for appellant. Frank F. Noleman and W. F. Bundy, for appellee.

BOGGS, J. Charles Denman,-husband of appellee,—an employé in the coal mine owned and operated by the appellant company, was killed by falling into the opening of the shaft at the surface of the ground, and thence to the bottom of the mine. The appellee recovered judgment against the appellant company in the circuit court of Marion county in the sum of $2,000, on a declaration which, in the first count, charged that the deceased came to his death by reason of the "willful failure" of the appellant company to furnish a sufficient light at the top of the shaft of the mine, as required by section 6 of chapter 93, entitled "Miners" (Hurd's Rev. St. 1889, p. 929), and, in the fourth count, that the death of the decedent was occasioned by the "willful failure" of the appellant company to securely fence the top of the shaft by gates properly protecting the shaft, as is required by section 8 of the same chapter of the statute. The declaration contained other counts, but the verdict was rendered on the said first and fourth counts. The judgment was affirmed by the appellate court for the Fourth district, and this is a further appeal perfected to this court.

Deceased was one of a force of men called the "night shift," employed by the appellant company to work in the mine during the night. When going down the shaft of the mine, the night shift entered the cage at the opening of the shaft at the surface of the ground, and when coming out they left the cage at the same opening. The company did not maintain a light at this opening of the shaft. It had, however, directed an employé 57 N.E.-13

to carry a lantern when its employés, the night shift, were going into or coming out of the cage at this opening, and had arranged the windows of the engine room, which was some 50 or 60 feet away, so that light from that room would shine in the direction of this opening of the shaft. A fence had been constructed around a lot or space some 10 feet wide and 20 feet long, and the opening of the shaft was within this inclosure. This fence was not erected for the purposes of protecting the opening of the shaft, or as being in compliance with the statute, but for the purpose of inclosing a lot for the storage of hay and feed intended to be lowered into the mine. The company had constructed above the surface of the opening of the shaft an uninclosed framework of timbers, which supported a structure called the "tipple house," some 20 feet above the ground. These timbers, composing the framework on which the tipple house rested, were supplied with "slides and guides" for the cages, and the cages and coal brought out of the mine through the shaft could be hoisted to the tipple house. The day shift of workmen were accustomed to enter and leave the cages at the tipple house. Coal brought out of the mine was hoisted to the tipple house, and there distributed to the screens, cars, etc., but coal was not brought out of the mine except in the daytime. The appliances for raising and lowering the cages enabled the company to move the cages from the tipple house to the bottom of the shaft. On the occasion in question the husband of appellee and the other workmen composing the night shift, after the hours of work for the night were over, were hoisted from the bottom of the shaft in a cage to the opening of the shaft at the surface of the ground. It was yet dark, and there was no one there with a lantern. In endeavoring to alight, the husband of appellee fell into the shaft, and was precipitated to the bottom of the mine, a distance of 600 or 700 feet, and instantly killed. These are, in substance, the facts necessary to be known in order to determine whether the court erred in refusing the motion of the defendant company to direct a verdict in its favor.

The statute relied upon by the appellee are sections 6, 8, and 14 of chapter 93. These sections read as follows: "Sec. 6. * * * A sufficient light shall be furnished at the top and bottom of the shaft to insure as far as possible the safety of persons getting on or off the cage."

"Sec. 8. * * * The top of each and every shaft and the entrance to each and every intermediate working vein shall be securely fenced by gates, properly protecting such shaft and the entrance thereto."

"Sec. 14. For any injury to person or property occasioned by any willful violations of this act or willful failure to comply with any of its provisions, a right of action shall accrue," etc.

in the nature of a fine or a forfeiture, nor is it awarded as a punishment, but is confined, by the express terms of section 14 of said chapter 93, to "the direct damages sustained" by reason of the omission or failure of which complaint is made. Compensation for injuries inflicted, not punishment, is the ground of recovery. "Willful' is a word of familiar use in every branch of law, and, although in some branches of law it may have a special mean

66

If the "top of the shaft" of a coal mine is not the opening of the shaft at the surface of the ground, it is for the reason that the construction of the structure around about such opening of the shaft, and the manner and mode of operating, entering, and departing from the cages, and delivery of coal from the shaft, have established the actual top of the shaft at some point above the surface of the ground. The most favorable view for the appellant company was that taken by the trial judge in ruling upon the motion and passing on the instructions given to the jury,—that the top of the shaft in this instance was to be determined by the jury as a question of fact. The tendencies of the evidence on the point demanded the submission of the question to the jury. The appellant company stood charged with knowledge of the provisions of the law, and with the duty of complying therewith. In operating its mine, it employed the landing of the shaft at the surface of the ground in such manner as to expose the deceased and his fellow workmen to all the perils which induced the enactment of the statutory provisions here involved. It recognized the existence of such perils, but instead of complying with the law, and employing the means enjoined upon it by the legislature to protect its employés against those dangers, substituted other methods; that is, it did not, in obedience to the statute, have the landing which it devoted to the uses of the "top of a shaft" furnished with a "sufficient light" to enable workmen to alight from the cage in the nighttime, but substituted the plan of ordering one of its servants to go to the landing with a lantern when the cages brought workmen from the mine to the surface of the ground. The omission was not through mere inadvertence, but was intentional. There was no evil intent operating to induce the failure. but that element is not a necessary ingredient of willfulness, within the correct meaning of the word "willful," as employed in this statute. As used in criminal and penal statutes, the word "willful" has frequently been interpreted to mean, not merely a voluntary act, but an act committed with evil intent, etc. The statute here involved is not a penal statute. The recovery awarded is not a penalty

plies nothing blamable, but merely that the person of whose action or default the expression is used is a free agent, and that what has been done arises from the spontaneous action of his will. It amounts to nothing more than this: that he knows what he is doing, and intends to do what he is doing, and is a free agent." 29 Am. & Eng. Enc. Law, 113. An act consciously omitted is willfully omitted, in the meaning of the word "willful," as used in these enactments of our legislature relative to the duty of mine owners. In Coal Co. v. Abbott, 181 Ill. 495, 55 N. E. 131, we said (page 502, 181 Ill., and page 134, 55 N. E.), "Where an owner, operator, or manager so constructs or equips his mine that he knowingly operates it without conforming to the provisions of this act, he willfully disregards its provisions, and willfully disregards the safety of miners employed therein."

It is true, it is not sufficient, to maintain an action of this character, to establish merely a willful omission of statutory duty. It is necessary that the injury complained of shall have resulted from the omission,-that the omission was the proximate cause of the injury. The testimony tended to show that the occupants of the cage intended to leave the cage at the opening of the shaft at the surface of the ground, and that the deceased supposed the position of the cage was such he could step from the cage to the ground. The evidence tended to show that the cage had passed above the level of the ground when the deceased sought to alight, and he did not gain secure footing on the ground, and fell into the shaft. The servant of the company who, it is insisted, was charged with the duty of bringing a lantern to enable the occupants to alight with safety, was not there. It was yet dark. There was no light there. There was a light in the engine room, some 50 or 60 feet away, or it is most probable that there was, but the landing and mouth of the shaft were enveloped in darkCertainly there is no room for the contention that the tendencies of the evidence were insufficient to warrant the submission to the jury of the question whether the proximate cause of the death of the deceased was the absence of a "sufficient light,"-to adopt the words of the statute with reference to the duty of the mine owner to supply a light at the top of the shaft of a mine. Even if the true or more immediate cause of the injury was the act of the deceased in stepping from the car after it had passed the landing, still

ness.

the existing condition of darkness may have been the proximate cause of the injury. 5 Am. & Eng. Enc. Law, p. 11. In this connection it must also be borne in mind that the doctrine of contributory negligence cannot be invoked by the appellant company. Coal Co. v. Abbott, supra. The motion to exclude the evidence and direct a verdict for the company was properly denied.

It was not error to refuse to allow the president and superintendent of the appellant company to testify that they in good faith intended to comply with the provisions of the statute. The averments of the declaration that the omission to observe the require ments of the statute were willful, did not, as we have seen, involve a charge of evil or wrongful intent, but only that the omissions were conscious acts of the mind, and were not from mere inadvertence. In criminal proceedings, where it is designed to punish the defendant, and in that class of civil cases where a penalty is provided, the amount whereof is fixed by statute, as in the nature of punishment, or in those cases where, in addition to damages recoverable as indemnity to the plaintiff for the injury sustained, exemplary or vindictive damages may be assessed as punishment of the defendant, the intent of the defendant becomes material. In all cases in those classes the word "willful" is interpreted to include malice, evil intention, or other wrongful motive. In the case at bar the recovery is limited to actual or direct damages, and the amount to be recovered is not to be mitigated or aggravated by the presence or absence of the element of fraud, malice, or evil intent. The word "willful," employed in pleadings in proceedings of this character, does not import any blameworthy motive, and no issue of intent arises. We need not notice in detail other objections preferred to the action of the court in admitting or excluding testimony, and in granting or refusing instructions. They involve only the principles of law already herein discussed. The judgment is affirmed. Judgment affirmed.

(185 Ill. 234)

FIGGE v. ROWLEN et al. (Supreme Court of Illinois. April 21, 1900.) JURISDICTION-DECREE-COLLATERAL ATTACK-EVIDENCE.

1. Where a decree quieting the title to certain real estate, against a mortgagee, recited. in showing that the court acquired jurisdiction by publication, "that it appeared by affidavit that the defendant was a nonresident," but the affidavit was defective because it did not show the authority of the notary who acknowledged it, it will not be held invalid when offered in evidence in an action to foreclose the mortgage, because the court had no jurisdiction over the parties thereto, as the court could pass on its jurisdiction, and a mistake therein could not be reached by a collateral attack.

2. Where the complaint, in an action to quiet title against a mortgagee, did not allege that the complainant was in possession of the mortgaged lands, or that they were vacant and unimprov

ed, as required, but a decree was rendered in favor of the complainant. it will not be held invalid. for want of jurisdiction over the subjectmatter when offered in evidence in a suit to foreclose such mortgage, as the court had jurisdiction to make such a decree, and an error therein could not be reviewed by a collateral attack.

Magruder, J., dissenting.

Appeal from appellate court, Fourth district.

Suit by C. Figge against Frank S. Rowlen and others to foreclose a mortgage. From an order of the appellate court (84 Ill. App. 238) affirming a judgment in favor of defendants, Affirmed. plaintiff appeals.

Choisser, Whitley & Choisser, for appellant. R. S. Marsh, for appellee M. Fenwick.

BOGGS, J. On the hearing of the issues formed under a bill in chancery filed by the appellant against appellees, to foreclose a mortgage on certain real estate in Saline county, the appellees, over the objection of the appellant, were permitted to introduce in evidence a decree entered in the circuit court of Saline county in a certain proceeding in chancery wherein the appellant was defendant and the grantor of appellee Fenwick was complainant, setting aside and declaring null and void the said mortgage sought by the appellant to be foreclosed herein, and canceling the same as a cloud upon the true title to said real estate. If the ruling of the court as to the admissibility of such decree in evidence was correct, it is conceded the judgment of the appellate court here appealed from, affirming the decree entered by the circuit court dismissing the appellant's bill for foreclosure, should be affirmed by this court.

Ju

The grounds of objection to the admissibility of the decree in evidence are that the court which rendered it did not have jurisdiction of the subject-matter of the proceeding or of the person of the defendant thereto. risdiction of the person of the defendant to the proceeding was assumed on the theory the defendant was a nonresident of the state of Illi nois, and had been duly notified by publica. tion, as required by the statute in such instances. The decree recited it appeared "to the court, from the affidavit on file, that said defendant is not a resident of the state of Illinois, and that his place of residence is not known, and on due inquiry cannot be found." The appellant offered in evidence the files in the cause wherein the decree in question was rendered, including an instrument filed by the complainant in the cause as an affidavit of the nonresidence of the defendant therein, the appellant here. As to this instrument counsel for appellant in their brief say: "The affidavit of nonresidence is wholly void. It was sworn to before a notary public in Allen county, Ohio, and the notary does not state in his certificate that he is authorized, under the laws of the state of Ohio, to administer oaths." The power to administer an oath is not incidental to the office of notary public.

If possessed by a notary, it is by force of the enactments of the state under which he holds his commission. Trevor v. Colgate, 181 III. 129, 54 N. E. 909. The enactments of a sister state may be proven by printed statute books purporting to be printed under the authority of such state (Rev. St. c. 51, § 10, entitled "Evidence and Depositions"); and the true meaning or construction of the statute of a foreign state, as declared by the courts of last resort of such state, may be proven by books of reports of decisions of such courts purporting to be published by authority (c. 51, § 12), or by the testimony of witnesses learned in the law of such state. Hoes v. Van Alstyne, 20 Ill. 202.

The court found and recited in its decree that it appeared from an affidavit on file the defendant was not a resident of the state, etc. An affidavit is a declaration in writing signed by an affiant, and sworn to by such affiant before some person who has lawful authority to administer oaths. Harris v. Lester, 80 Ill. 307. The finding of the court, therefore, involved consideration and judicial determination of the question of the authority of the notary public to administer the oath to the affiant. The decree was rendered by a court of general jurisdiction, and the attack upon it is made in a collateral proceeding, In such instances, in the absence of proof to the contrary, nothing is presumed to be outside the jurisdiction of the court which rendered the decree. Swearengen v. Gulick, 67 Ill. 208. Service by publication was relied on to acquire jurisdiction of the person of the defendant in that proceeding. In determining as to the existence of facts necessary to constitute service by publication, the court had lawful power to receive parol or documentary testimony. Botsford v. O'Conner, 57 Ill. 72; Barnett v. Wolf, 70 Ill. 76; Swift v. Yanaway, 153 Ill. 197, 38 N. E. 589; Bickerdike v. Allen, 157 Ill. 95, 41 N. E. 740, 29 L. R. A. 782; Reedy v. Camfield, 159 Ill. 254, 42 N. E. 833. It is not necessary that, in answer to a collateral attack, testimony received for that purpose should be preserved in the record, for the reason that the legal presumptions arise in aid of the jurisdiction of the court that competent evidence was produced to warrant the finding that the instrument in question was an “affidavit," within the legal meaning of that word. Bickerdike v. Allen, supra; Reedy v. Camfield, supra. The rule to be deduced from the decisions of this court on the point is that the findings of a court of general jurisdiction as to jurisdictional facts necessary to constitute service by publication are conclusive as against collateral attack, unless such findings are irreconcilable with facts otherwise disclosed by the record, and that in aid of such findings, and in aid of any apparent conflict in the record, it will be presumed evidence was heard to support the findings in all cases where it is competent to receive evidence for that purpose.

The bill on which the decree here assailed is founded prayed a decree canceling the mortgage which appellant in this proceeding seeks to foreclose, as a cloud on the title of the complainant in the bill, but it was not averred in the bill that the complainant had possession of the land or that it was vacant and unimproved. We have repeatedly held that it is essential to the right of a complainant to maintain a proceeding in chancery to remove a cloud on the title to real estate that it should be alleged in the bill and proved upon a hearing that the complainant had possession of the land or that it was vacant and unoccupied. The appellant insists that in view of these holdings, and of the lack of averment in the bill upon which the decree is founded, the court was lacking in jurisdiction of the subject-matter to render the decree.

The jurisdiction of courts of equity to remove a cloud from title to real estate is of common-law origin. 2 Am. & Eng. Enc. Law, 389. Jurisdiction of the subject-matter of a proceeding is conferred by law. The power to decide any particular case of the subjectmatter whereof the court has jurisdiction is conferred by the pleading. If the court has jurisdiction of the subject-matter of a real cause of the character of the one attempted to be set forth in the pleading, it has jurisdiction of the subject-matter of the controversy, and judicial power to determine whether the case made by the pleadings is one within its jurisdiction. In Bostwick v. Skinner, 80 Ill. 147, we quoted with approval the remarks of Mr. Justice Allen in Cox v. Thomas, 9 Grat. 323, as follows (page 326): "The only question would seem to be whether the subject-matter was within the jurisdiction of the court. If it was,-if the jurisdiction of the court extended over that class of cases, it was the province of the court to determine for itself whether the particular was one within its jurisdiction." In People v. Seelye, 146 Ill. 189, 32 N. E. 458, we said (page 221, 146 Ill., and page 467, 32 N. E.): “If a court has jurisdiction of the subject-matter and the parties, it is altogether immaterial, where its judgment is collaterally called in question, how grossly irregular or manifestly erroneous its proceedings may have been. Its final order cannot be regarded as a nullity, and cannot therefore, be collaterally impeached. * The court is invested with power to determine the rights of the parties, and no irregularity or error in the execution of the power can prevent the judgment, while it stands unreversed, from disposing of such rights as fall within the legitimate scope of its adjudication." The author of the article entitled “Jurisdiction," in 12 Enc. Pl. & Prac. p. 129, remarks: "But, as a general proposition, jurisdiction of the subject-matter is conferred by law, and does not rest upon averments in pleadings, nor is affected by error in sustaining a pleading; and if the pleadings contain

case