respect to offenses in which is involved any linquent, and the law will inquire into the real moral delinquency or turpitude, all parties are delinquency, and place the ultimate liability deemed equally guilty, and courts will not in- upon him whose fault was the primary cause quire into their relative guilt; but where the of the injury. Lowell v. Boston & Lowell Railoffense is merely malum prohibitum, and is in road Corp., supra; Gray v. Boston Gaslight no respect immoral, it is not against the policy of the law to inquire into the relative delin- Co., 114 Mass. 149, 19 Am. Rep. 324; Washquency of the parties and to administer jus-ington Gaslight Co. v. District of Columbia, tice between them, although both parties are wrongdoers." supra; Union Stock Yards Co. v. Chicago, Burlington & Quincy Railroad Co., supra. So a retailer of oil, who has been compelled Where the relation of two persons to the to pay damages to a customer, who was inperformance of work is such that both may jured by an explosion of kerosene sold to be liable to a third person for an injury re- him which was below the statutory test, sulting from the work, there is no public could recover damages from the manufac policy which prohibits either from indemnify-turer who sold the kerosene to him bearing ing the other against loss arising from posi- the inspector's stamp. Pfaar v. Standard tive acts of negligence by the indemnitor. Oil Co., 165 Iowa, 657, 146 N. W. 851, L. R. Where one of them is only passively negli- A. 1915C, 336. gent, but is exposed to liability through the positive acts and actual negligence of the other, the parties are not in equal fault as to each other, though both are equally liable to the injured person. Their relation to one another, under these circumstances, was considered in Union Stockyards Co. v. Chicago, Burlington & Quincy Railroad Co., 196 U. S. 225, 25 Sup. Ct. 226, 49 L. Ed. 453, 2 Ann. Cas. 525, where it was said that the general rule that one of several wrongdoers cannot recover against another wrongdoer, although he may have been compelled to pay the damages for the wrong done, is in many instances held inoperative in order that the ultimate loss may be visited upon the principal wrongdoer, who is made to respond for all the damages, where one less culpable, although legally liable to third persons, may escape the payment of damages assessed against him by putting the ultimate loss upon the one principally responsible for the injury done. In referring to the case of Washington Gaslight Co. v. District of Columbia, supra, it is said that: An owner against whom damages were recovered for an injury occasioned by the operation of an elevator defectively equipped may recover indemnity for the amount paid from the manufacturer by whom the elevator was installed. Wanamaker v. Otis Elevator Co., 228 N. Y. 192, 126 N. E. 718; Boston Woven Hose & Rubber Co. v. Kendall, 178 Mass. 232, 59 N. E. 657, 51 L. R. A. 781, 86 Am. St. Rep. 478. In Fuller Co. v. Otis Elevator Co., 245 U. S. 489, 38 Sup. Ct. 180, 62 L. Ed. 422, a general contractor, against which a judgment had been recovered for the negligence of an elevator man, who, as between the contractor and the injured man, was regarded as the servant of the contractor, recovered a judgment against the Otis Elevator Company, which was installing the elevator, on the ground that the ele vator man was, as between the contractor and the Otis Elevator Company, the servant of the latter. Upon the theory of placing the ultimate liability on him whose fault was the primary cause of the injury, and whose positive acts negligently done have produced "The general principle was recognized that, notwithstanding the negligence of one for the defective condition which caused the inwhich he has been held to respond, he may rejury, the appellant should pay the damages cover against the principal delinquent, where as between him and the original contractor, the offense did not involve moral turpitude, in whose negligence was merely passive. which case there could be no recovery, but [5] The statute has imposed upon the ownwas merely malum prohibitum, and the lawer and the contractor, who were under no would inquire into the real delinquency of the liability whatever at common law in a case parties, and place the ultimate liability upon like the present, the same kind of liability him whose fault had been the primary cause which rests upon a municipality, and they of the injury." cannot escape it. Whether they could main[4] The general rule is that, where two tain an action for indemnity against the perparties acting together commit an illegal or son actually causing the injury by his negwrongful act, the party injured may hold ligence as the proximate cause, in the abboth responsible for the damages resulting sence of a contract, we are not called upon from their joint act, and neither can recover to decide. That person, the subcontractor, from the other the damages he may have has by contract assumed this obligation of paid, or any part of them. The further gen-indemnity. The only question is as to the eral principle is announced, however, in many cases, that where one does the act which produces the injury, and the other does not join in the act, but is thereby exposed to liability and suffers damage, the latter may recover against the principal de legality of the contract, and the only objection made to its legality is the question of public policy. The public policy of the state is to be found in its Constitution and statutes, and, where these are silent, in its judicial decisions. Zeigler v. Illinois Trust & (141 N.E.) Savings Bank, 245 Ill. 180, 91 N. E. 1041, 28 L. R. A. (N. S.) 1112, 19 Ann. Cas. 127. In 1899 the General Assembly passed an act authorizing the organization of corporations insuring against loss or damage resulting from accident to or injury suffered by an employee or other person for which accident or injury the person insured is liable. Laws 1899, p. 237. In 1915 another law was enacted providing for the organization of mutual insurance corporations having the power to make contracts of insurance against loss, expense, or liability by reason of bodily injury, death by accident, disability, sickness, or disease suffered by others for which the insured may be liable or may have assumed liability. Laws 1915, p. 485. liability incurred by their own negligence, there seems to be no basis for holding it contrary to public policy for contractors to indemnify owners of buildings, or subcontractors to indemnify original contractors against loss occasioned by the actual negligence of the indemnitors, even though such owners or original contractors may have been themselves guilty of passive or constructive negligence. Such a contract does not provide for the doing or omission of any act. The contract in the present case does contemplate that an accident may happen through the negligence of the appellant's servants for which the appellee may be liable, and provides that the appellant will indemnify the appellee against such liability for the appel The judgment is affirmed. Judgment affirmed. (310 Ill. 319) KELLY v. BROWN. (No. 15613.) (Supreme Court of Illinois. Dec. 1923.) 1. Courts 37(1) There may be waiver of jurisdiction of person, but not of subject. matter. -- Liability insurance is usually carried by lant's negligence. It is not contrary to pubemployers of labor, and the Workmen's Com-lic policy that the appellant should contract pensation Act provides for liability insur-to pay the damages caused by its own negance under certain circumstances. It is an ligence. important department of the insurance business, and the very object of it is to protect the employer or other person insured against liability for accidents, which are of frequent occurrence and are usually the result of negligence. The validity of such a contract of indemnity cannot be questioned, and is not affected by the fact that the indemnitor is the contractor or subcontractor, rather than an insurance company. Heman Construction Co. v. City of St. Louis, 256 Mo. 332, 165 S. W. 1032. The question of the extent to which public policy would restrict the right of an insurance company to issue a policy insuring against liability by reason of the operation of an automobile was considered in the case of Messersmith v. American Fidelity Co., 232 N. Y. 161, 133 N. E. 432, 19 A. L. R. 876, in which it was said the Legislature had authorized insurance companies to indemnify against liability for loss and damage through the use and maintenance of automobiles. The court said: "To restrict insurance to cases where liability is incurred without fault of the insured would reduce indemnity to a shadow. Neither in the statute nor in its application as shaped by long-continued practice is there the token of an intention that indemnity shall be withheld from owners operating their own cars, and limited to those whose cars are run by servants. Liability of the owner, who is also the operator, can never be incurred without fault that is personal. Indeed, the statute has so covered the field that it can seldom, if ever, be incurred without fault that is also crime." Policies insuring owners of automobiles against loss or damage on account of their operation were held not contrary to public policy in Taxicab Motor Co. v. Pacific Coast Casualty Co., 73 Wash. 631, 132 Pac. 393. Since the Legislature has expressly authorized the organization of corporations to Jurisdiction of the person may be waived, but not of the subject-matter. 2. Appearance 19(1)-Person objecting to jurisdiction must limit appearance. If a party desires to object to the jurisdiction of his person, he must limit his appearance alone to that purpose, for, if he appears for another purpose, he waives the objection to the jurisdiction of his person. 3. Appearance 9(5)—Objection to jurisdiction waived by moving for change of venue. A defendant cannot, after limiting his appearance for the purpose of specially objecting to the jurisdiction of his person, and before the court has acted on the objection, move for change of venue, and subsequently rely on his objection to the jurisdiction. 4. Elections 285 (5)—Petition held properly verified. An affidavit of petitioner, contesting an election, stating he is acquainted with the contents of petition, that the matters stated therein to be true of his own knowledge are true in substance and in fact, and that the matters stated on information and belief are true to the best of his knowledge and belief, was sufficient, where everything material to a decision of the case was alleged to be known to petitioner, except that a certain voter was not a legal voter. 5. Elections 293 (5)-Proof of preservation of ballot sufficient to justify consideration as best evidence. In an election contest, testimony of clerk indemnify owners of automobiles against of township and election, who had charge of For other cases see samo topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the ballots, held sufficient to justify court in treating ballots as best evidence. 6. Elections 293 (5)-Ballots may be accepted as best evidence, where properly preserved. Before ballots can be accepted as the best evidence, and allowed to overcome the election returns, it must be shown that they have been so preserved that they were not subject to being tampered with. 7. Elections 293(5)—Whether ballot erly preserved question of fact. In an election contest, the question whether ballots have been properly preserved is in every case one of fact, to be determined by the evi dence. 8. Elections W. C. De Wolf, of Belvidere, for appellant. James M. Huff, of Belvidere, and Charles W. Ferguson, of Rockford, for appellee. FARMER, C. J. Charles T. Brown and John A. Kelly were both candidates at the election on April 3, 1923, for supervisor of Caledonia township, Boone county. There was only one ticket voted at the election, and the names of both candidates for superprop-visor were printed on the same ticket; the name of Kelly above the name of Brown. There was no circle on the ticket, but there were squares at the left of the names of both Brown and Kelly. Below Brown's name was a dotted line, with a square at the left, presumably for the purpose of enabling a voter to vote for some one whose name was not printed on the ballot. The judges of election canvassed the vote, and declared the result to be that Brown and Kelly had each received 143 votes, and the election a tie. The candidates cast lots, and Brown won. On April 19, 1923, Kelly filed a petition in the county court to contest the election. The cause was heard, and the ballots recounted May 21, 1923. The court found and decreed that Kelly had received 143 votes at said election, and Brown had received 141 votes, and Kelly was declared by the decree en 186(3)-Ballot, not initialed by election judge, not counted. A ballot, not initialed by election judge, was properly not counted. 9. Elections 194(1) Ballot with lines drawn through name of candidate properly counted. A ballot, marked by placing a cross in the square opposite the name of contestant and having several lines drawn horizontally through the name and square of the contestee, was properly counted by the court for contestant, as against objection that horizontal lines were distinguishing marks. edonia township by a majority of 2 votes of all the legal votes cast at the election. Brown prosecuted this appeal to review the decree. The parties will be referred to as appellant and appellee: 10. Elections 194(1)—Mark on ballot capa-tered to have been elected supervisor of Calble of explanation not a distinguishing mark. A mark on the face of a ballot, which can be reasonably and consistently explained as showing the true and honest intent or purpose of the voter in casting his ballot for the candidate of his choice, should not be considered or held to be a distinguishing mark, which would invalidate the ballot. 11. Elections 194(1)-Ballot held to contain distinguishing mark. Where cross on face of ballot was made with an indelible lead pencil, and on the back of the ballot were the initials "C. T.," also in indelible pencil, court properly refused to count it, for the reason that distinguishing marks appeared thereon. 12. Elections 72-Single man, considering home to be wherever he stayed, not legal voter. A single man, who considered his home to be wherever he stayed, and who was not in the township for some months, was not entitled to vote at a township election. 13. Elections 295 (1)-Evidence held to warrant finding nonresident voted for contestee. In an election contest, evidence held to warrant finding that one not entitled to vote voted for contestee. Appeal from Boone County Court; Charles P. Barnes, Judge. The petition to contest the election was filed in the county court April 19, 1923, and prayed that summons issue, returnable to the probate term thereof, commanding appellant to appear before the court "at its next April term" and answer the petition. On the same day the petition was filed the court ordered the case set for hearing April 30, and that the clerk "issue summons to the respondent accordingly." Summons was issued, returnable April 30, 1923, was served on appellant the day it was issued, and on April 30 he ap peared and filed two motions. One of the motions, limiting his appearance for the purpose of making it, was to quash the summons and dismiss the petition, because the petition prayed for summons returnable to the probate term, commanding appellant to appear at the next April term, which the motion alleged would be April, 1924, wherefore there was a variance between the petition and the writ, and appellant asked that the summons be quashed and the petition dismissed. The same day appellant filed a motion for a change of venue from the judge of the Petition by John A. Kelly against Charles county court of Boone county, on account of T. Brown to contest an election. Decree for the prejudice of the judge, and an order was contestant, and contestee appeals. Affirmed. I entered by the court granting the change of (141 N.E.) venue, and the court further ordered the court overruled the first and second grounds cause to be heard by a judge of a neighbor- of demurrer and sustained the third ground. ing county; that it stand continued without Appellee thereupon by leave of the court date until arrangements could be made to amended the petition, so as to allege Schaffprocure the presence of another judge, both man was not a resident of the town of Caleparties to have 3 days' notice of the next donia at the time of the election. The hearing. May 2 the cause was set for a amendment was made by writing it on the hearing May 8 before Charles P. Barnes, face of the petition, and it was not afterjudge of the county court of McHenry coun- wards verified by the oath of the petitioner. ty. On the 8th day of May appellant ap- Appellant was thereupon ruled to answer peared and filed objections to the jurisdic- the petition as amended, May 16. He antion of the court; his objections stating he swered denying the truth of the allegations appeared specially, and not in any respect of the petition, and the cause was tried waiving his special appearance before made. May 17. The objections to the jurisdiction were that, if the court ever acquired jurisdiction of the proceeding, it was lost by the order of April 30 continuing the cause without date to enable the judge to procure the judge of a neighboring county to hear the case. Judge Barnes overruled the objections to the jurisdiction of the court, and denied appellant's motion to quash the writ and dismiss the petition. Appellant was ruled to answer May 12, and on that day he answered part of the petition and demurred to part of it. The petition among other things, alleged appellee received 144 votes and appellant 143 votes at the election, and that the judges erroneously declared each received 143 votes; that the extra vote claimed by appellee was based on the claim that the judges refused to count one ballot for him in which there was a cross in the square in front of his name and a pencil mark drawn through the name of appellant; that the judges of the election refused to count the same for appellee, and rejected it as a mutilated and illegal ballot. The petition further alleged that the petitioner was informed and believed certain other ballots which he was unable to describe were illegally marked and were counted for appellant, and that they should have been rejected. The petition also alleged Ralph Schaffman voted at the election; that he was not a legal voter in Caledonia township, and his vote was counted for appellant; that petitioner challenged his vote; and that appellant, who was one of the judges of the election, declared he had a right to vote, and insisted on his vote being sworn in, which was done, and his ballot was deposited in the ballot box and counted. Three grounds were alleged as causes of demurrer to the parts of the petition demurred to. The first ground is not material. The second ground of demurrer was that a part of the petition specified did not allege with certainty or definiteness any particular ballots, or why or in what respect they were illegally marked, which were counted for appellant. The third ground was that the part of the petition alleging Schaffman was not a legal voter did not state any reason why he was not a legal voter, and why his ballot should not be counted for appellant. The Appellant contends that as the petition, which was filed April 19, prayed that summons issue commanding the defendant to appear "at the next April term," which would be April, 1924, and the summons was issued returnable on April 30, 1923, the court did not acquire jurisdiction, and should have sustained his motion to quash the writ and dismiss the petition, Appellee insists that, even if this point is well taken, it has been waived by appellant. It was held in Cavanaugh v. McConochie, 134 Ill. 516, 25 N. E. 674, that the summons must be issued and served in the manner required by the act to regulate the practice in chancery. That act requires summons to be returnable to the next term of the court after its date or the next succeeding term thereof. [1, 2] Appellee does not attempt to sustain the practice pursued in this case of issuing the summons on the day of filing the petition, returnable 11 days after it was filed, but contends, as the court had jurisdiction of the subject-matter of election contests, appellant waived any irregularity in acquiring jurisdiction of his person by filing a motion for a change of venue, answering the petition, and trying the cause on its merits. The question is one of jurisdiction of the person and not of the subject-matter. The former may be waived, but the latter cannot be, and may be raised at any time. No limited appearance is required to raise the objection that the court has no jurisdiction of the subject-matter, but if a party desires to object to the jurisdiction of his person he must limit his appearance alone to that purpose, for if he appears for another purpose he waives the objection to jurisdiction of his person. In Mitchell v. Jacobs, 17 I. 235, the court held that, when a party appears for any purpose whatever, except to object to the process or service, he waives all objections thereto, although the process may be void, or there may have been no service. In that case the party objecting had previously consented to a continuance of the case, and the court held that he thereby submitted himself to the jurisdiction of the court, citing Easton v. Altum, 1 Scam. 250, where the same rule was announced. In Louisville & Nashville Railroad Co. v. Industrial Board, 282 Ill. 136, 118 N. E. 483, the court held a special appearance must be confined to a denial of jurisdiction, and that an appearance for any other purpose than to object to the jurisdiction is general. In that case the court quoted with approval 4 Corpus Juris, 1316, that: "Any act by the defendant which recognizes the jurisdiction of the court amounts to a general appearance. **An appearance is special where it is made for the sole purpose of objecting to the jurisdiction of the court over the person of the defendant because of want of process, because of defects in the process or in the service thereof, because the process is void or illegal, or because the action was brought in the wrong county or judicial dis trict." It cannot be doubted if appellant had on the return day of the writ filed a motion and petition for a change of venue, and had filed no other motion, it would have to be held a waiver of the right to object to the jurisdiction. Both the motion to quash the writ and dismiss the petition, and the petition for change of venue, were filed the same day. Both state appellant limits his appearance to the purpose of making the motion. The attempt to limit his appearance for the purpose of applying for a change of venue could not change the character of the appearance. We know of no rule which would authorize a defendant to file a petition for a change of venue without submitting himself to the jurisdiction of the court. court has acted on the objection, take some other step which he could not do without submitting himself to the jurisdiction of the court, and subsequently rely on his objection to the jurisdiction. By entering his appearance for any purpose after objecting to the jurisdiction he waives that objection. [4] Appellant also contends the petition of that reason the court did not acquire jurisappellee was not properly verified, and for diction. The affidavit of appellee to the petition states he is acquainted with its contents; that the matters stated therein to be true of his own knowledge are true in substance and in fact; and that the matters stated on information and belief are true to the best of his knowledge and belief. We bave read the petition and appellant's objections to its verification, and as everything material to a decision of the case is alleged to be known to appellee, except that Schaffman was not a legal voter, we think the objection to the verification without merit. Both the petition and the verification were sufficient. [5-7] James Ralston, the town clerk of Caledonia township, testified he was present at the election and was one of the clerks; that [3] Appellant contends that the motion to the ballots, poll list, and tally sheet were quash the summons and dismiss the petition turned over to him then by the judges in was filed before the petition for a change of sealed packages; that he took them home venue. The record of the proceeding shows with him, and kept them in his possession the filing of the petition to contest the elec- until he produced them in court. The packtion, the order for summons, the summons ages containing the ballots were sealed with and return, and that "thereafter, on April a peculiar seal of Caledonia township. When 30,” appellant under a limited appearance produced they were so sealed. Ralston did filed his motion to quash the summons and not have possession of the seal after the elecdismiss the petition, "and thereafter, on said tion. The package containing the ballots was 30th day of April, 1923," appellant under a indorsed, "Ballots voted at election April 23, limited appearance filed his petition for 1923," and was addressed, "J. R. Ralston, change of venue on account of the prejudice | Caledonia, Boone county, Illinois." Ralston of the judge. While it cannot be determined testified the package was in the same condiwith certainty which of the motions was tion when produced by him that it was in filed first, we will assume the motion to quash when delivered to him by the judges of elecand dismiss was presented and filed by the tion. The objection of appellant is it is not clerk before the petition for change of venue shown by the testimony how or in what kind was presented to be filed by the clerk. of a place the town clerk kept the ballots our view, that does not affect the question after he received them and before producing whether by filing the petition for change of them in court, or that they were so kept that venue appellant waived his right to object they could not have been tampered with. All to the jurisdiction of the court. Both mo- the ballots were cast at one place, that being tions were filed the same day and appear to the only voting place in the township. The have been simultaneously made. At all testimony of the clerk that the package conevents, no disposition was made of the mo-taining the ballots was sealed when produced tion to quash and dismiss before application by him in court just as it was when defor change of venue was made. A defend- livered to him, and the testimony of Cunant cannot, after limiting his appearance for ningham, one of the judges, and other testithe purpose of specially objecting to the mony as to the ballots about which any quesjurisdiction of his person, and before the tion is raised, shows the ballots had not been In |