dissenting:
I think the judgments of the Appellate Court and the circuit court should be affirmed. I agree with the conclusion in the opinion that the allegations of the declaration required the plaintiff to prove that the defendant was not under the Workmen’s Compensation act, but I am strongly of the opinion that such proof can and should be held to be waived in this case. In Diets v. Big Muddy Coal Co. 263 Ill. 480, this court held that where counsel for the coal company conceded in oral argument before this court that it never had been, and was not at the time of the accident, operating under the Workmen’s Compensation act we would assume that such was a fact. Of course, if counsel On the trial of this case in the circuit court had conceded that fact it would be held to be binding here, the same as when conceded in this court. There is an old maxim that “actions speak louder than words.” I think the actions of the counsel for defendant on the trial of this case in the nisi prius court were such as to indicate that it was conceded on that trial that defendant had elected not to come under the Workmen’s Compensation act, for it offered proof and tried the case on a theory that would not have been proper had it been operating under that act. It attempted to prove certain conditions and surroundings at the time of the accident which tended to show that the company’s negligence was not the proximate cause of the injury and that it was not guilty of willful failure to mark as dangerous the place where the injury occurred. If it is true that the defendant was operating under the Workmen’s Compensation act, then a liability would attach whether the defendant was negligent or not and whether or not its conduct was the proximate cause of the accident. Clearly, these defenses could not have been proved had the defendant been operating under the Workmen’s Compensation act. It must be assumed .that counsel for the defendant, as well as the trial court, understood this to be the situation or the court would not have permitted such proof to be presented for consideration. To permit counsel to raise this question in a court of review for the first time, when it was, in effect, waived in the trial court, seems to me entirely inconsistent not only with justice but with reasonable and correct principles of pleading and practice.