Action by Frank Kowalczyk, a minor, by, cial plea averring that the parties were subJames Deming, his guardian, against Swift ject to the Workmen's Compensation Act, to & Co. Judgment for defendant, and plaintiff which the court sustained a demurrer. sued out writ of error from the Appellate Court, which affirmed the judgment (233 III. App. 337) and granted a certificate of importance and appeal to the Supreme Court. Judgment of Appellate Court reversed, and cause remanded, with directions to transfer cause to Supreme Court.

It is not disputed that the meat-packing and allied industries appellee was engaged in conducting are an extrahazardous employment and within the prohibition of the Child Labor Acts, but it is contended by appellee that the capacity in which appellant was employed was not of that character; that be

Corinne L. Rice and A. H. Ranes, both of cause an employer is engaged in extra hazChicago, for appellant.

John E. Kehoe and Brown, Fox & Blumberg, all of Chicago (Charles Le Roy Brown, of Chicago, of counsel), for appellee.

FARMER, J. This is an action at law by appellant to recover damages for a personal injury. There was a judgment in the trial court for defendant, and appellant sued out a writ of error from the Appellate Court. That court affirmed the judgment and granted a certificate of importance and an appeal

to this court.

The injury occurred December 12, 1917. The declaration alleged defendant was engaged in meat packing in the city of Chicago, was in control of buildings, yards, and railroad tracks, and there were in force divers ordinances regulating and safeguarding its employees, and the ordinances are set out in hæc verba. The declaration alleged defendant's business was designated as extrahazardous by the Workmen's Compensation Act (Smith-Hurd Rev. St. 1923, c. 48, §§ 138-172); that section 6 of the act of 1897 concerning the employment of minors (Laws 1897, p. 90) was in full force and effect, and prohibited any child under 16 years of age being employed, permitted, or suffered to work at an extrahazardous employment, "whereby its life or limb is in danger, or its health likely to be injured, or its morals may be depraved." The declaration also set out section 10 of the act of 1917 concerning the employment of minors (Laws 1917, p. 511). That section prohibits the employment of minors under 16 in numerous specified capacities, and further prohibits their employment "in any capacity whatever in any employment that may be considered dangerous to their lives or limbs, or where their health may be injured or morals depraved." The declaration also set out section 5 of the Workmen's Compensation Act, which defines an employee to mean every person employed by another, including minors "who are legally permitted to work under the laws of this state." The declaration then alleged that plaintiff, a minor between 14 and 16 years of age, while engaged in extrahazardous employment, was injured, while in the performance of his duties, as a result of his employment in violation of the statutes with reference to the employment of minors between the ages of 14 and 16 years. Appellee pleaded the general issue and a spe

ardous business it does not follow that all the departments of its business are extrahazardous, and this case was disposed of by the trial and Appellate Courts considering it a question of fact whether appellant's employment was extrahazardous and illegal, or whether he was employed in a capacity in which minors over 14 and under 16 might legally be employed. Upon that question the proof substantially was that appellee's plant, operated for meat packing, manufacturing, storing, loading, shipping, and unloading its products, occupied a large territory of ground, intersected and crossed by streets or passageways, on and along which were laid many railroad tracks for the operation of cars in connection with appellee's business. Appellant's employment was as a messenger boy, to carry messages from appellee's office building to the several houses and places in appellee's yards. Besides appellee's office building, which is near the northeast corner of its plant, there are a large number of other buildings scattered all over the grounds, used for many different purposes in connection with appellee's business, in which power-driven machinery

was used.

These buildings were reached from the office building along streets or parts

of streets on which were railroad tracks for

the operation of cars and by passageways between the buildings. To reach many of them, passageways occupied by railroad tracks, and upon which many trucks and other vehicles were operated, had to be crossed.

F. M. Oberg testified that at the time plaintiff's accident occurred witness was in charge of the messenger boys at the office building of appellee, and appellant was under his personal jurisdiction. He gave appellant and other messenger boys instructions as to their duties. At the time the accident occurred the witness had sent appellant, on what was known as the fertilizer route, to deliver letters and small packages to a number of offices. A slip was given appellant, designating the number of the route, and also prints of each office he was to visit and deliver messages and packages. Appellant was to visit only the places named on the slip, and the slip for each place he visited was to be placed on the time clock. His route was down Packers avenue to Forty-Second street and from FortySecond street to Harper's dock. The next place was the fertilizer house, and then the glycerine factory, which was the last place

(148 N.E.)

on the fertilizer route. He said he instructed ous, and therefore appellant's remedy was at appellant to follow his orders, and that if he common law, and not under the Workmen's did not do that he would give him a tanning Compensation Act. or discharge him.

Appellee has moved to dismiss the appeal (1) for defects in the appeal bond; (2) the Appellate Court has not certified, as required by law, the grounds for granting the appeal; (3) appellee by the assignment of cross-errors in the Appellate Court raised the validity of a statute and the construction of the Constitution.

bond.

Appellant testified as a messenger boy he delivered messages from the general office building to all the different offices, the fertilizing plant, the glycerine house, wool house, sausage room, soap house, glue house, smoke house, north house, and all the other different places. Shortly after 4 o'clock on December 12, 1917, he was instructed to deliver mes- [3] To our minds there is no merit in the sages to the fertilizing plant, which required first and second propositions. There are some him to pass over Packers avenue, on which slight discrepancies in the form of the apcars were moved by locomotive engines, then peal bond, but they are not of a character south to Forty-Second street, running east to affect its validity as an appeal bond; and, and west, on which are operated all kinds of even if they were, we would not be authortrucks and wagons carrying meat and fertilized to dismiss the appeal without first giving izer. He walked across the railroad tracks appellant an opportunity to file an amended on Forty-Second street, and his first stop was at Harper's dock, a place from which shipping is done. He then went to the fertilizer building, on Forty-Second street, where wagons and trucks were running both ways. From the fertilizer building he went to the glue house, crossing over railroad tracks and other obstructions. From there he went to the glycerine department and wool house. As he left to return to the office building, he had to climb off the dock between the soap house and glycerine house. There were box cars standing on tracks between the glycerine house and the soap house, and he attempted to pass between the building and the cars, which was a space about 15 inches wide, and fell into a pool of hot water standing in some depression in the ground and was scalded. He testified that in making the trip he passed over the same route he had been instructed to take, except that we do not understand the attempt to pass between the glycerine house and the box car was the usual route taken on leaving the glycerine house to return to the office building.

[4] In its certificate of importance the Appellate Court certified "that this case involves questions of law of such importance, on account of principal and collateral interests involved, as that it should be passed upon by the Supreme Court," and an appeal was therefore allowed on plaintiff giving bond in the sum designated by the court, with sureties to be approved by the clerk. Appellee insists the certificate was void, because it did not certify the specific questions to be decided as the grounds of granting the appeal. In Chicago, Burlington & Quincy Railroad Co. v. Schaffer, 124 Ill. 112, 16 N. E. 239, the Appellate Court granted a certificate of importance and an appeal. The certificate stated:

"This case involves a question of law of such importance, on account of principal interests, as that it should be passed upon by the Supreme Court; that is, whether the former judgment between the parties is a bar to the present action, it appearing from the evidence that the structure complained of was imperfectly built, and that there was negligence in the mode of the construction of said bridge."

[1, 2] All the buildings required to be visited for the purpose of delivering messages by appellant were occupied by machinery oper- This court said its consideration could not ated by electrical or other power, and in de- be confined to a particular question specified livering messages he was required to enter in the certificate, but it could consider any the buildings, pass near the running machin- questions of law properly arising on the recery, and sometimes go to an upper story to ord. In Steele v. Grand Trunk Junction Raildeliver the messages. Whether or not he way Co., 125 Ill. 385, 17 N. E. 483, the Appelwas negligent in attempting to pass between late Court granted a certificate of importance, the glycerine house and the box car is of no stating the case involved questions of law of importance. If he was legally employed by such importance, on account of principal or colappellee, his right of action under the Work- lateral interests, that it should be passed upmen's Compensation Act could not be affected on by the Supreme Court. It was objected that by his negligence, and if he was illegally em- the certificate should have specifically pointed ployed, in violation of the child labor statutes, out the questions of law which the Appellate his negligence would be no bar to a recovery. Court considered of such importance that We repeat that the right of appellant to re- they should be passed upon by this court, but cover is based upon the contention that un- the court overruled the contention and held der the child labor statutes he could not be the certificate sufficient. In Newman v. Newlegally employed by appellee; that by section man Clock Co., 268 III. 418, 109 N. E. 324, this 3 of the Workmen's Compensation Act ap-court held that, when the Appellate Court pellee's business was defined as extrahazard- granted a certificate of importance and an

appeal to this court, the case is before this court for all purposes, the same as if it came here in the ordinary way.

Appellee says the forms of Appellate Court certificates of importance have always been insufficient, that the decisions to the contrary have been erroneous, and that erroneous decisions, long persisted in, cannot justify a disregard of the law. That is true, but we do not agree with counsel that the decisions have been erroneous, and we still adhere to them.

Appellee assigned cross-errors in the Appellate Court, challenging the constitutionality of section 6 of the act of 1897 and section 10 of the act of 1917, forbidding the employment of any minor under 16 years of age in any capacity whereby his life, limb, health, or morals are endangered. It now insists the Appellate Court had no jurisdiction to determine the case and render judgment, and that court was without power to do anything but allow appellee's motion to transfer the case to this court. For that reason it is now insisted the appeal should be dismissed.

writ of error, and appellee assigned crosserrors in that court, challenging the constitutionality of section 6 of the act of 1897 and section 10 of the act of 1917, and made a motion that the case be transferred to the Supreme Court, for the reason that, a constitutional question being involved, the Appellate Court had no jurisdiction to determine the case. The Appellate Court denied the motion, retained jurisdiction and decided the case.

The basis of the Appellate Court's decision was as appears from its opinion, that the question of appellee's liability must be determined from a consideration of the Child Labor Acts of 1897 and 1917, and the court expressed the view that under those acts a minor might be lawfully employed by an employer engaged in the conduct of a prohibited business, provided the employment of the minor did not subject him to the hazards which endangered life, limb, health or morals; that whether appellant's employment was prohibited by the child labor statutes was a question of fact properly submitted to the jury, and their verdict being that he was not illegally employed, the Appellate Court did not feel justified in reversing the judgment. It will be seen, therefore, that the question of the validity of the statutes was not passed upon by either the trial or Appellate Court, as under the view taken by both courts that question was not essential to a decision.

One of the contentions of appellee in the trial court was: An employer conducting an extrahazardous business was not prohibited from employing a minor over 14 and under 16 years of age in some line of its business where the child would not be menaced with the hazards and dangers of the principal enterprise and business, and that the right of action of a minor under 16 who is legally [5] Appellant insists that no constitutional hired by an employer engaged in a hazardous question was raised by appellee in the trial enterprise is governed by the Workmen's court and none could be properly raised in Compensation Act, and he cannot sue at com- the Appellate Court. Appellee insists that mon law for an injury received in the course by its plea setting up the Workmen's Comof and arising out of his employment. Ap-pensation Act as a bar to the suit, to which pellant's position was and is that his employment by appellee was in violation of the child labor statutes and the remedy for the injury was an action at law.

It is not denied that appellee was engaged in a business defined as extrahazardous by the Workmen's Compensation Act; but, as we have stated, it is contended by appellee that appellant was not employed or directed to perform duties which subjected him to hazards whereby his life, limb, health, or morals were endangered. The trial court instructed the jury that it was unlawful for appellee to employ appellant in any capacity where he would be subject to the hazards of appellee's business of manufacturing, packing, storing, boxing, loading, or unloading its products; but appellee had a lawful right to employ appellant in any capacity not dangerous to life, limb, health, or morals, and if the jury believed he was legally employed, his remedy was under the Workmen's Compensation Act, and not in a suit at law. The jury returned a verdict of not guilty, and the superior court, after overruling a motion for a new trial, rendered judgment for appellee. Appellant removed the case to the Appellate Court by

the court sustained a demurrer, and by its motion to direct a verdict for defendant, constitutional questions were raised in the trial court, but further insists that, if no constitutional question was raised in the trial court, it, as the defendant in error, had a right to raise any question appearing from the pleadings which would entitle it to sustain the judgment of the trial court, and is not concluded by the omission of any reasons which might have been advanced in the trial court to support a judgment in its favor. Mulvihill v. Shaffer, 297 Ill. 549, 131 N. E. 125; Becker v. Billings, 304 Ill. 190, 136 N. E. 581; Hazel v. Hoopeston-Danville Bus Co., 310 Ill. 38, 141 N. E. 392, 30 A. L. R. 491.

[6] If the validity of a statute is properly involved in the Appellate Court under an assignment of errors or cross-errors, that court has no jurisdiction to entertain the appeal, and it was held before the passage in 1907 of the statute authorizing the transfer of such cases by that court to this court that the judgment of the Appellate Court on the merits must be reversed, and the cause remanded with directions to dismiss the appeal. Drainage District v. Commissioners of Highways,

(148 N.E.)

199 Ill. 80, 64 N. E. 1079. And it was held in | lation of the due process and equal protection Perry v. Bozarth, 198 Ill. 328, 64 N. E. 1076, of the law clauses of the federal and state that if the Appellate Court assumed juris- Constitutions, in that they do not definitely diction of a case involving a freehold this court on further appeal must reverse the Appellate Court's judgment for want of jurisdiction, and remand the cause, with directions to dismiss the appeal. Where the Appellate Court has no jurisdiction, jurisdiction cannot be waived or conferred by the consent of the parties. Town of Audubon v. Hand, 223 Ill. 367, 79 N. E. 71.

Equity

which the Appellate Court had no jurisdic-| 4. Cancellation of instruments 4 ·
tion to render. In Chaplin v. Commissioners
of Highways, 126 Ill. 264, 18 N. E. 765, this
court held that, where a freehold, franchise,
or the validity of a statute was involved in
the Appellate Court, this court cannot en-
tertain an appeal from that court for the
purpose of passing upon the merits of the
case, but for the purpose only of vacating or
reversing the judgment of the Appellate
Court, with directions to dismiss the appeal.
[14] Appellee insists that we dismiss the
appeal, but that we are not required to do.
The law will be complied with and justice
subserved by reversing and setting aside the
judgment and remanding the case to the Ap-
pellate Court, with directions to transfer the
case to this court, and that will be the order.

11-Courts of equity have jurisdiction to set aside deeds for fraud.

Courts of equity have jurisdiction in cases where fraud is practiced, and particularly to set aside deeds obtained by fraud. 5. Cancellation of instruments remedy of ejectment does not deprive equity of jurisdiction to set aside fraudulent deed.

The judgment of the Appellate Court is reversed, and the cause remanded to the Appellate Court, with direction to transfer the cause to this court.

Reversed and remanded.

3. Quieting title 50-Allegations of fraud and want of delivery of deed admitted on demurrer held to warrant relief as prayed.

Allegations admitted by demurrer that vendor, going to purchasers' house to offer performance, which was refused, inadvertently left deed, that purchasers, without performing contract, had it recorded, and fraudulently claimed ownership, held sufficient to warrant decree, as prayed, declaring deed void and cloud upon title, ordering possession delivered, and permanently enjoining incumbrance or disposition by purchasers.

14-Legal

In action by vendors to regain possession and to have deed set aside for fraud and want of delivery, fact that complainants may have had remedy at law by ejectment is not to be considered as taking away equitable jurisdiction.

6. Injunction 135—Granting temporary injunction to preserve condition of subjectmatter discretionary.

In suit for injunction it is generally discretionary with court to grant temporary injunction to preserve subject-matter in its then condition, and, without determining question of right, to prevent further perpetration of wrong.

7. Injunction 191 Injunction preventing disposal by fraudulent grantee held properly made permanent.

Where facts alleged, in suit to set aside deed for fraud and want of delivery and to enjoin purchaser from disposing of, or incumbering premises, were sufficient to show fraud and were admitted by demurrer, injunction held properly made permanent.

8. Equity 241-Sole question on demurrer is whether complainants are entitled to relief sought.

In suit to set aside deed to purchasers on ground that it was inadvertently left at time of vendors' tender of performance, sole question

on demurrer held to be whether complainants were entitled to relief sought.

9. Cancellation of instruments ~24(2)—Return of earnest money not prerequisite to suit to set aside deed unlawfully appropriated.

In suit to set aside deed to purchasers on ground that it was inadvertently left at time of vendors' tender of performance, tender back of

$150 paid by purchasers as earnest money held not prerequisite to relief sought; vendors being entitled to be put in same position as be

fore fraud.

10. Judgment 252(I)-Decreeing forfeiture of earnest money held erroneous, where not specifically prayed or warranted by facts alleged.

In decreeing that deed be set aside as having been unlawfully appropriated by purchasers, when inadvertently left by vendors at time of tender, further decree that sum paid as earnest money, on contract of purchase, should be forfeited, held erroneous, where such relief was not prayed specifically or warranted by facts

alleged.

Error to Circuit Court, Cook County; Hugo M. Friend, Judge.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes