report of the evidence, and the trial judge does not certify that it contains all the evidence heard. The constitutional question raised by the assignment of errors that the judgment violated the Constitution of this State and of the United States by depriving defendant of its property without due process of law depends upon whether Diehl, upon whom the summons was served, was such an agent of the defendant corporation that service of summons upon him as such agent was lawful service upon defendant and gave the court jurisdiction. There being no statement of facts or correct stenographic report in the record, we cannot determine that question. The judgment of the municipal court is affirmed. ganized and existing under and by virtue of the laws of the state of Delaware; that the principal office of said corporation is in Buffalo, N. Y.; that it has no office in the state of Illinois, and had no office in the city of Chicago at the time of the commencement of this suit, or at any time since; that said corporation has never done business in the state of Illinois, has at all times been absent from the state, and that no service of the writ of summons has been made upon said corporation. The affidavit further alleges Diehl is not, and never has been, the agent of said corporation, and has never in any manner been authorized to represent the corporation in any capacity and has never been an officer or agent of said corporation. No motion was made by plaintiff to strike this affidavit from the files, and the court appears to have treated it as an affidavit in support of the motion to quash the return, without objection on the part of plaintiff. On February 4, 1916, the "statement of facts" made part of the record shows that upon the trial of the issue made by the affidavit filed December 20, 1915, the court heard the testimony of Diehl (the party 1. DowER 81-PROCEEDING FOR ASSIGNserved as agent of defendant) and the testi- Tenants in possession of land, served and mony of plaintiff, and entered an order over-appearing in a proceeding for the assignment of ruling the motion to quash the return and ordered defendant to file an affidavit of merits within ten days. On February 21st, defendant not having complied with the order of the court to file an affidavit of merits or defense, judgment was entered against defendant by default. Judgment affirmed. (275 111. 520) NICHOLS v. CALDWELL. (No. 10855.) (Supreme Court of Illinois. Oct. 24, 1916. Rehearing Denied Dec. 12, 1916.) MENT-PARTIES BOUND BY DECREE. dower, in which the decree assigned the land as property of her late husband to a widow, such parties later claiming under a deed from the widow, were bound by the adjudication of the decree that the land was owned by her deceased husband. [Ed. Note. For other cases, see Dower, Cent. Dig. 88 312-316; Dec. Dig. 81.] DowER 82-ASSIGNMENT. The objection that the oath of commissioners to assign dower did not contain either the word "swear" or "affirm" did not render it void, when the jurat stated that it was signed and sworn to before the circuit clerk. Dig. 8 321; Dec. Dig. 82.] [Ed. Note.-For other cases, see Dower, Cent. 3. DOWER 98-PROCEEDING FOR ASSIGNMENT-REPORT OF COMMISSIONERS-COLLATERAL ATTACK. Defendant in error contends that the state-2. ment of facts in the record cannot be considered by this court (1) for the reason that the statement of facts authorized by section 23 of the Municipal Court Act (Hurd's Rev. St. 1915-16, c. 37, § 286) applies only in cases of the fourth and fifth classes, and that in actions of the first class a party desiring a review of the judgment must file a bill of exceptions or stenographic report containing all the evidence, as provided by section 81 of the Practice Act; (2) that, even if the statement of facts is authorized in actions of the first class, the statement of facts here embraced in the record is insufficient, in that it does not purport to contain all the evidence heard upon the issue of fact. Where the statute required that the report made by the commissioners appointed should be "signed by at least two of them," and where the jurat of the circuit clerk attached to the oath stated that it was signed and sworn to by the two commissioners before him, the fact that but two of the three commissioners took the oath and made report did not render the proceeding void and subject to collateral attack, although the statute required the appointment of three commissioners, who should allot dower and make report in writing. [Ed. Note. For other cases, see Dower, Cent. Dig. §§ 342-344; Dec. Dig. 98.] 4. DowER 98 PROCEEDING FOR ASSIGNMENT-REPORT OF COMMISSIONERS-COLLATERAL ATTACK. We shall not determine the first contention urged by defendant in error, for the reason that in our view of the law our decision must be the same, no matter how that question might be decided. What is designated "statement of facts," and certified by the trial judge as "a correct statement of the pointed to assign dower contained two words in That the report of the commissioners apfacts appearing upon the trial," is not a the description of the premises which were clearstatement of facts within the contemplation ly surplusage did not render the proceeding void of the Municipal Court Act, but purports to and subject to collateral attack, since these words might be disregarded and there was no be the substance of the testimony, in narra- claim of fraud in the proceeding. tive form, of Diehl and the plaintiff. Nor [Ed. Note.-For other cases, see Dower, Cent. does it purport to be a correct stenographic | Dig. §§ 342-344: Dec. Dig. 98.] 5. LIMITATION OF ACTIONS 44(6) COм- D. Moudy, in the lands the bill alleged he MENCEMENT OF PERIOD OF LIMITATION RIGHT TO POSSESSION OF LAND. Where the heir of land was not entitled to the possession of land until the death of her mother, which occurred less than seven years before the heir's ejectment suit to recover it, such suit was not barred by any statute of limi tations. [Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. § 230; Dec. Dig. 44(6).] 6. EJECTMENT 27-DEFENSE OF ESTOPPEL. The fact that the only heir of land in possession of her mother as tenant in dower was of age when her mother executed a deed of the land, knew of the deed. and attested it as witness, and that she herself, in the conveyance of property adjoining the premises in controversy, referred, by way of exception thereto, to the property deeded by her mother, afforded no defense in ejectment, as estoppel cannot be availed of in such action, where only legal titles are considered. [Ed. Note. For other cases, see Ejectment, Cent. Dig. § 114; Dec. Dig. 27.] Appeal from Circuit Court, Macon County; William K. Whitfield, Judge. Action by Dell D. Nichols against Charles M. Caldwell. From a judgment for plaintiff, defendant appeals. Affirmed. Charles C. LeForgee and Thomas W. Samuels, both of Decatur, and Geo. W. Black, of Peoria, for appellant. Jones & Van Cleve, of Decatur, and McCaskill & McCaskill, of Chicago, for appellee. died seised and possessed of. The bill described the property here in controversy as part of the real estate owned by Moudy at the time of his death. Among other defendants to the bill were defendant here, Charles M. Caldwell, and his brother, F. B. Caldwell, and they answered the bill. Plaintiff also offered in evidence a decree of the circuit court of Washington county, rendered in said cause at said April term, 1876, which recited that the court found from the testimony that complainant in said suit was the widow of James D. Moudy, who died intestate October 1, 1873, seised in fee simple of the lands described in the decree, which descriptions included the premises here in controversy. Three commissioners were appointed by the decree to assign dower to complaint in all of said lands described and report to the court. The plaintiff also introduced in evidence the oath taken by two of said commissioners; also the report of said two commissioners assigning the premises here in controversy, though by a slightly incorrect description, to the widow as and for her dower. Plaintiff also offered in evidence the minutes of the judge who heard the case and entered the decree, showing that the commissioners' report assigning dower was approved by the court at the October term, The plaintiff also introduced in evidence a quitclaim deed, dated June 1, 1861, from Thomas O. Smith and wife to James D. Moudy, conveying to the grantee the premises here in dispute 1876. Defendant, in addition to objecting to the competency of certain of plaintiff's proof and the sufficiency of her title as shown by the proof, introduced in evidence a warranty deed from Minnie H. Moudy, widow of James D. Moudy, to Charles M. and Freeland B. Caldwell, for the premises in controversy, dated February 25, 1882; also a deed from Freeland B. Caldwell and wife to Edward A. Jones, dated July 7, 1887, for the undivid FARMER, J. This is an appeal from a judgment of the circuit court of Macon county in an action of ejectment. Dell D. Nichols, appellee here, was plaintiff in the court below. The property which she claimed to own in fee simple is described in her declaration as the west 35 feet off the east 65% feet of lot 8 in block 3 of the original town (now city) of Decatur, otherwise described as 35 feet off the east side of lot 7 of the resurvey of lot 8 of block 3 in the original town (now city) of Decatur. The case has been tried three times in the circuit court, once resulting in a judgment for defendanted one-half of said premises; and a warranty and twice in judgments for plaintiff. From the last judgment in favor of plaintiff, defendant has prosecuted this appeal. deed from Edward A. Jones and wife, dated May 3, 1890, to defendant for the undivided one-half of said premises. Defendant also Plaintiff stated on oath upon the trial, in introduced in evidence the report of the the form of an affidavit, that she claimed commissioners who assigned dower to the title through a common source with defend- widow of James D. Moudy, appointed in the ant; that the common source was plaintiff's suit before referred to in the Washington father, James D. Moudy, from whom plain-county circuit court, the decree of said tiff inherited the premises as his only heir. The proof shows Moudy died in Washington county, Ill., in 1873. He left surviving him a widow, Minnie H. Moudy, and plaintiff, his only child and heir at law. Plaintiff, to prove her title, offered in evidence a bill in chancery filed to the August term, 1876, of the Washington county circuit court by the widow, Minnie H. Moudy, against plaintiff and others, for the assignment of dower to said Minnie H. Moudy, as widow of James court confirming the report of the commissioners and following the description in said report, and also certain other documentary evidence, such as tax receipts, but which we think have no bearing upon the issues in this case. [1] The contention of defendant that plaintiff did not prove title to the land in James D. Moudy, the alleged common source, is untenable, if the proceeding in Washington county, the record of which was intro For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes duced in evidence, was not a void proceeding. the proceeding void and subject to collateral Defendant here was a party defendant to the attack.. bill in that case, was duly served by sum- [4] A further objection is that the report of mons, and filed an answer. The bill in that the commissioners does not describe the propcase alleged that James D. Moudy died erty here in controversy. According to the seised and possessed in fee simple of the original plat and survey of the town of Depremises in controversy. The decree found catur, the property in controversy was a part that Moudy was seised and possessed of the of lot 8 in block 3. Subsequently there was premises at the time of his death, in October, a resurvey of said block 3, and lot 8 was 1873, that he died intestate, that defendant subdivided into four lots, numbered 5, 6, 7, and F. B. Caldwell were tenants in posses- and 8. The report of the commissioners desion of the premises described in the declara- scribed the property as 35 feet off the east tion in this case, and that commissioners side of lot 7, block 3, of the resurvey of lot were appointed to assign dower to the widow | 3 of the original town (now city) of Decatur. in all the lands of the deceased, of which the The objection to this description, as we unpremises in controversy are a part. Inde- derstand it, is the mention of lot 3. As we pendently of the deed from Smith to Moudy, have said, at the time of the resurvey of this was an adjudication in a proceeding to block 3, what was then lot 8 of that block was which defendant was a party that Moudy subdivided into lots 5, 6, 7, and 8. Treating was the owner of the premises at the time the words "lot 3" as surplusage, the report of of his death, and plaintiff was not required the commissioners contains a good descripto prove when or how he acquired title. tion of the property. Burns v. Miller, 110 Ill. The title claimed by defendant was under a deed from Minnie H. Moudy. The premises were assigned to her as dower, as the widow of James D. Moudy. Both parties therefore claim title through a common source. [2, 3] The court had jurisdiction of the subject-matter and of the parties in the pro 242. The decree correctly described the property the commissioners were directed to assign dower in. Defendant and F. B. Caldwell were lessees of the property in controversy at the time it was assigned as dower to the widow. The commissioners did actually assign the property in controversy as dower, and defendant and all other parties interested so understood it. None of the objections made to the Washington county dower proceeding render it void and subject to collateral attack. At most they were but irregularities, which could only be taken advantage of upon appeal or writ of error. made that there was any fraud in said dower proceeding. Miller v. Rowan, 251 Ill. 344, 96 N. E. 285. No claim is [5] Plaintiff was not entitled to the possession of the premises until the death of her mother, which occurred less than seven years before the commencement of this suit, and no statute of limitations can therefore be invoked. ceeding by the widow of James D. Moudy in the circuit court of Washington county to assign dower, and in our opinion there is no such irregularity appearing in the record of the proceeding in said case as to render it void and subject to collateral attack. The objections urged against the validity of the Washington county proceeding, and which it is claimed render the decree in that case void, are that only two of the three commissioners appointed took the oath, viewed the premises, and made report, that the oath is not in proper form, and that the report of the commissioners assigning dower does not correctly describe the premises in controversy. The objection to the form of the oath is that it reads, "I do solemnly that I will fairly and impartially allot and set off to [6] It is also contended by the defendant Minnie H. Moudy her dower," etc., and does that the plaintiff is estopped from asserting not contain the word of affirmation. The title to the premises by her conduct. This jurat of the circuit clerk attached to the oath contention is based upon the claim that plainstates that it was signed and sworn to by said tiff was of age at the time her mother exetwo commissioners before him. The omission cuted the deed to the Caldwells; that she in the body of the oath of the word "swear" or knew of the conveyance and attested the deed "affirm" did not render it void. Neither does as a witness; that plaintiff herself conveyed the fact that but two of the commissioners property adjoining the premises in controvertook the oath and made the report. While sy to defendant in 1888, in the conveyance of the statute requires the appointment of three which she referred, by way of exception from commissioners, who shall go upon the prem-the conveyance, to the property deeded by her ises, allot dower to the person entitled there- mother to the Caldwells in 1882. It seems to, and make report in writing, the report is too obvious to require discussion that these not required to be signed by all three of them, things afford no bar or estoppel to the asbut the statute provides that it shall be sertion by the plaintiff of her title even in a "signed by at least two of them." The re- court of equity, and such a defense cannot be port was signed by two commissioners, and availed of in an action of ejectment, where the fact that it was only shown said two only legal titles are considered. Hayden v. commissioners took the oath does not render | McCloskey, 161 Ill. 351, 43 N. E. 1091; City of Amboy v. Illinois Central Railroad Co., [not compulsory in its application, inducements 236 Ill. 236, 86 N. E. 238. were held out to facilitate its acceptance both by the employers and employés. The judgment was warranted by the proof, and is affirmed. Judgment affirmed. (225 Mass. 220) In re COX. (Supreme Judicial Court of Massachusetts. Suffolk. Nov. 28, 1916.) WORK [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 348.] 6. MASTER AND SERVANT 383-WORKMEN'S COMPENSATION ACT-"SUBSCRIBER." "Subscriber," as used in the Workmen's Compensation Act, means an employer who has become a member of the association or insured under the act. [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 383. 1. MASTER AND SERVANT 417(7) For other definitions, see Words and Phrases, CLUSIVENESS. Under the Workmen's Compensation Act (St. 1911, c. 751), the finding of the arbitration committee, affirmed by the Industrial Accident Board that an employé received an injury in the course of and arising out of his employment cannot be set aside if there is any evidence upon which it can rest. [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 417(7).] 2. MASTER AND SERVANT 375(1) WORK- Where an employé was injured in answering a personal private telephone call, the nature of the call does not prevent his injury from "arising out of and in the course of his employment," if it was a part of his duties to answer telephone calls. [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 375(1). For other definitions, see Words and Phrases, First and Second Series, Course of Employment.] 3. MASTER AND SERVANT 405(4) WORKMEN'S COMPENSATION ACT-INJURIES ARISING OUT OF AND IN THE COURSE OF EMPLOY MENT. An employé, who was hired as manager of a retail shoe store, reported for duty before his predecessor had concluded his service, and while assisting such predecessor in the performance of the managerial duties, which included the answering of telephone calls, was injured by the falling down stairs after business hours, and while answering a private personal telephone call. Held, a finding that such injury arose out of and in the course of the employment was supported by the evidence. [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 405(4).] 4. MASTER AND SERVANT 351-WORKMEN's COMPENSATION ACT - OCCUPATIONS WITHIN Аст. 7. MASTER AND SERVANT 361-WORKMEN'S COMPENSATION ACT-"EMPLOYÉ." Every person in the service of another under any contract of hire, express or implied, oral or written, is an "employe" under the Workmen's Compensation Act, pt. 5, § 2. [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 361. For other definitions, see Words and Phrases, First and Second Series, Employé.] 8. MASTER AND SERVANT 351-WORKMEN'S COMPENSATION ACT-OCCUPATIONS WITHIN THE ACT. Where an employer becomes a subscriber under the Workmen's Compensation Act, all the branches of his business come under the act, and he cannot accept the act as to a part of the business and reject it as to a part. [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 351.] 9. MASTER AND SERVANT 383-WORKMEN'S COMPENSATION ACT-INSURANCE POLICY EFFECT ON RIGHTS OF EMPLOYÉ. The Workmen's Compensation Act fixes the Scope of the insurance so far as the rights of the employé are affected, and such rights cannot be narrowed by contract between the employer and insurer. [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 383.] 10. INSURANCE 435-WORKMEN'S COMPENSATION ACT-LIABILITY OF INSURER. Under an insurance policy issued under the Workmen's Compensation Act to a manufacturer of shoes who was also extensively engaged in the business of retailing shoes, which insurance policy made no reference to the retail business of the subscriber, but obligated the insurer to pay the compensation provided by the act to any person to whom such compensation shall become due, held that the obligation of insurer was as broad as the act, and covered injuries to employés received in the business of retailing shoes. [Ed. Note.-For other cases, see Insurance, Cent. Dig. § 1144; Dec. Dig. ~435.] from Superior Court, Appeal Suffolk Where a corporation is both a manufacturer and retail dealer of shoes, and is a subscriber and insurer under the Workmen's Compensation Act, the business of conducting its retail store comes under the act; it not being permitted that Proceedings under the Workmen's Compenan employer may become a subscriber as to only one part of its business and remain a nonsub-sation Act. scriber as to the rest. [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 351.] 5. MASTER AND SERVANT 348-WORKMEN'S COMPENSATION ACT-PURPOSE. From a decree of the superior court, the insurer appeals. Affirmed. Sawyer, Hardy, Stone & Morrison, of Boston (E. C. Stone, of Boston, of counsel), for appellant. The general purpose of the Workmen's Compensation Act was to substitute its provisions RUGG, C. J. [1-3] This is a proceeding for the pre-existing rights and remedies under under the Workmen's Compensation Act. the law respecting injuries sustained in indus- The first question is whether the finding of trial pursuits, and it was a humanitarian measure whose general adoption throughout the com- the arbitration committee, affirmed by the monwealth was the legislative aim; and, while Industrial Accident Board, that Wardwell D. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Cox received an injury in the course of and become due, and to indemnify the insured arising out of his employment, finds any sup- under provisions of section 22 of part 4 of port in the evidence. It cannot be set aside said act, for or on account of personal inif there is any evidence upon which it can juries, including death resulting at any time rest. Pigeon's Case, 216 Mass. 51, 102 N. E. therefrom, received or suffered by any em932. The evidence was that Cox had been ployee or employees of the insured, or of a employed to work in a shoe store in Boston. contractor or subcontractor as defined by secHe was notified to report for work on Sep- tion 17 of part 3 of said act, within the policy tember 13th, and the injury was received on term, subject, however, to the agreements on September 17th. His position at the moment the following pages and conditions herein of his injury, although not quite clear, was stated." Among the "agreements" was one the equivalent in right of that of manager. giving the insurer ample power to examine He was to be manager of the store, but his the buildings and plants, to inspect the books predecessor was still in the store and was to of the insured for information as to wages conclude his service the next day. He was of its employees, and to require written stategetting through when Cox came to work, but ments as to such wages. at Cox's request was relieving him of the [4] The question is whether, under these duty of making out the daily report at the circumstances the business of conducting the time of the injury. Cox was working over- retail shoe store in Boston is under the Worktime taking account of stock. He was injured men's Compensation Act. We are of opinion by falling down stairs at eight o'clock in the that it is. The Workmen's Compensation evening while answering a telephone call Act does not permit an employer to become from his daughter, who asked when he was a subscriber as to one part of its business and coming home. The evidence would warrant to remain a nonsubscriber as to the rest of a the conclusion that it was the duty of Cox business which is in substance and effect to answer telephone calls even outside the conducted as one business. It has been deusual business hours. If this was his duty, cided that insurance as to one class of emthen the circumstance that the call happened ployees of a farmer, engaged as drivers and to be one which interested him personally helpers in the distribution and marketing of would not prevent his conduct in attending to his produce, does not require insurance of the call from being service arising out of and farm laborers who are expressly exempted in the course of his employment. There is from the act. Keaney's Case, 217 Mass. 5, nothing to indicate that the time spent at the 104 N. E. 438. We do not include within the telephone was longer than necessary to an- scope of this decision transportation comswer a call. The finding in this respect can-panies carrying on interstate commerce and not be said to be without substantial founda- in this regard wholly subject to the acts of tion in the evidence. Congress (Corbett v. Boston & Maine R. R., The employer and subscriber was the 219 Mass. 351, 107 N. E. 60; Northern PacifFramingham Shoe Company, a manufacturer ic ky. v. Washington, 222 U. S. 370, 32 Sup. of shoes apparently upon a somewhat ex- Ct. 160, 56 L. Ed. 237), but subject to state tensive scale, with a factory at Framing- law as to intrastate business, nor those conham. That corporation and its manager ducting two wholly different and distinct operate from seventy-five to one hundred kinds of business quite disconnected with shoe stores, all those in this commonwealth each other in place, nature and management. being owned and operated by the corporation. Such cases, if and when they arise, are to It was insured in accordance with the Work- be considered on their own merits. We are men's Compensation Act by a policy which, dealing here with a case where one employer under the heading "Classification. Schedule is conducting under a single general adminof Business Operations," and subheading, istration the business "of manufacturing, "Location of each Building, Factory, Shop, jobbing at the factory and selling at retail Yard, or Place where the Trade, Business, in the factory and in stores." The circumProfession or Occupation will be conducted," stance that at the retail stores are sold other contained these words: "Framingham, Mass." shoes and rubbers beside those manufactured Under the further subheading, "Kind of at the factory, does not render the retail Trade, Business, Profession or Occupation stores a business separate from the general (Manual Classification)," were these words: business which is carried on as à unit made "Boot & Shoe Mfrs. Military Goods Mfrs. (no up of numerous parts. metal stamping), Drivers and Drivers' Help- [5] The general purpose of the act was to ers, Rates 30c and 80c respectively with 4 substitute its provision for the pre-existing per cent. specific discount." The contract of rights and remedies under the law respecting insurance was "to pay the compensation and injuries sustained by those engaged in into furnish the medical and hospital services dustrial pursuits, with exceptions not here and medicines provided for by The Work-material. Although not compulsory in its men's Compensation Act, viz.: part 2 of application, inducements were held out to chapter 751 of the Massachusetts Acts and facilitate its voluntary acceptance both by Resolves of 1911, and amendments and ad- employers and employees. It was an humanditions thereto, to any person or persons to itarian measure enacted in response to a |