SUPREME COURT OF ILLINOIS. DAVIS ST. PAUL COAL CO. (No. 12423.)* LIMITATIONS OF ACTIONS-WORKMEN'S COMPENSATIONAMENDMENT OF PLEADING. In view of Workmen's Compensation Act, § 1, as to employer electing to come under the act, being relieved of other liability, and sections 2 and 3b, which state conclusive presumption that mine operator is within act, unless he elects otherwise, where injured miner sued, and, when demurrer was sustained to the declaration, amended, after cause was barred, by adding allegation that employer had elected not to come within the act, he could not recover; the original declaration being not merely defective, for the allegation that employer is not covered by the act is essential to the statement of the cause of action at common law. (For other cases, see Limitation of Actions, Dec. Dig. § 127 [14].) Appeal from Appellate Court, Second District on Error to Circuit Court, La Salle County; Edgar Eldredge, Judge. Action by John Davis against the St. Paul Coal Company: Judgment for defendant, which was affirmed by the Appellate Court, and plaintiff appeals. Affirmed. Browne & Wiley and Butters & Clark, all of Ottawa, for appellant. Duncan & O'Conor, of Ottawa, for appellee. FARMER, J. Appellant (hereafter called plaintiff) brought an action against the appellee (hereafter referred to as defendant), plaintiff's employer, in the circuit court of La Salle county, to recover damages for a personal injury to plaintiff, alleged to have resulted from the negligence of defendant. The declaration contained two counts and stated a case for a recovery in an action at common law. It contained no allegation that the parties had elected not to operate under the Workmen's Compensation Act (Hurd's Rev. St. 1916, c. 48, §§ 126-152h). Defendant demurred to the declaration, the court sustained the demurrer, and plaintiff asked and was granted leave to amend the declaration. The amendment consisted of inserting in each count an allegation that before plaintiff was injured defendant had elected to not operate under the Workmen's Compensation Act. The injury to the plaintiff was received November 8, 1913. The amendment was filed November 14, 1917. To the amended declaration defendant pleaded the statute of limitations. Plaintiff demurred to that plea, but the court overruled the demurrer. Plaintiff elected to stand by his demurrer, and the court rendered judgment in favor of defendant and against plaintiff for costs. Plaintiff prosecuted an appeal to the Appellate Court for the Second District, where the judgment was affirmed. The Appellate Court granted a certificate of importance and an appeal to this court, and the case is brought to review the judgment of the Appellate Court. The original declaration stated a cause of action for damages at common law for a personal injury. Defendant was engaged in coal mining, and plaintiff was employed by it in that business. There was no * Decision rendered, Dec. 18, 1918. 121 N. E. Rep. 181. averment in the original declaration that the parties had elected not to be bound by the Workmen's Compensation Act. By section 1 (section 126) of that act an employer who elects to provide and pay compensation for accidental injuries to employees is relieved of any liability for damages except as provided in the act. Section 2 (section 127) provides that every employer enumerated in paragraph (b) of section 3 shall be conclusively presumed to be subject to the act, unless he has given notice of his election otherwise, in the manner therein provided. Persons or corporations engaged in "mining, surface mining or quarrying" are engaged in employments which are by said section 3 conclusively presumed to be subject to the act, unless they have elected to the contrary, and section 6 (section 131) provides: "No common law or statutory right to recover damages for injury or death sustained by any employee while engaged in the line of his duty as such employee other than the compensation herein provided shall be available to any employee who is covered by the provisions of this act, to any one wholly or partially dependent upon him, the legal representatives of his estate, or any one otherwise entitled to recover damages for such injury." The action was brought against an employer whom the law conclusively presumes is subject to the Workmen's Compensation Act and who was not liable in a common-law action to an employee for damages for any injury sustained. Plaintiff, by amending his declaration, after the demurred was sustained, so as to allege that the parties had elected not to be bound by the act, impliedly acquiesced in the court's action and amended the declaration so that as amended it stated a case at common law. This was done after the bar of the statute had become complete. The original declaration did not defectively state a cause of action, which might be good after verdict. In Beveridge v. Illinois Fuel Co., 283 11. 31, 119 N. E, 46, the declaration alleged the parties had elected not to be bound by the Workmen's Compensation Act, but there was a failure of proof by the plaintiff of that allegation. Discussing the question this court said: "It was essential, therefore, to the statement of a cause of action for a negligent injury by an employee against his employer, that it should appear that the employer was not covered by the provisions of the act. A declaration which fails to state a fact whose existence is necessary to entitle the plaintiff to recover does not state a cause of action. Walters v. City of Ottawa, 240 Ill. 259 [88 N. E. 651]).” That decision is conclusive of the question here involved, and it requires no further discussion, unless we were of opinion that decision was erroneous. We entertain no such opinion, but are satisfied with its soundness and must adhere to it. This question was not squarely passed upon in Zukas v. Appleton Manf. Co., 279 Ill. 171, 116 N. E. 610, and in Barnes v. Illinois Fuel Co., 283 Ill. 173, 119 N. E. 48; but what was said in those cases clearly indicates the view of the court was in harmony with the rule laid down in the Beveridge Case, and is in no way in conflict with that case. The judgment of the Appellate Court is affirmed. Judgment affirmed. SUPREME COURT OF ILLINOIS. LEFENS et al. V. INDUSTRIAL COMMISSION et al. (No. 12162.)* 1. MASTER AND SERVANT-WORKMEN'S COMPENSATION— EVIDENCE-COMPETENCY. In proceedings under the Workmen's Compensation Act to recover for the death of an employee, killed by falling down a stairway, evidence that deceased was habitually intemperate was incompetent, where there was direct testimony that he was sober at the time of the accident. (For other cases, see Master and Servant, Dec. Dig. § 404.) 2. MASTER AND SERVANT-WORKMEN'S COMPENSATION— INJURIES “ARISING OUT OF EMPLOYMENT.” An employee so drunk and helpless that he can no longer follow his employment is not engaged therein, and an injury received while in such condition does not arise out of the employment. (For other cases, see Master and Servant, Dec. Dig. § 371.) 3. MASTER AND SERVANT-WORKMEN'S COMPENSATION— QUESTIONS OF FACT. As to whether an employee, killed by falling down a stairway, was intoxicated, is a question of fact, in proceedings under the Workmen's Compensation Act, where the evidence is contradictory, and will not be reviewed. (For other cases, see Master and Servant, Dec. Dig. § 417[7].) 4. MASTER AND SERVANT-WORKMEN'S COMPENSATION— REVIEW. In a proceeding under the Workmen's Compensation Act, it is the duty of the arbitrator, the committee of arbitration, and the Industrial Commission fairly and impartially to consider and weigh all evidence presented, and make their findings in accordance with the preponderance of the evidence, and their conclusions on questions of fact, based on conflicting evidence, are not subject to review. (For other cases, see Master and Servant, Dec. Dig. § 417[7].) Error to Circuit Court, Cook County; Oscar M. Torrison, Judge. Proceeding under the Workmen's Compensation Act by William J. Bowe, administrator of the estate of Andrew Erickson, opposed by Marie Lefens and others, employers. Claimant was awarded compensation, and a writ of certiorari by the circuit court was quashed, and the employers bring error. Affirmed. F. J. Canty, J. C. M. Clow, and George D. Anthony, all of Chicago, for plaintiffs in error. Augustine J. Bowe, of Chicago, for defendants in error. DUNN, J. The plaintiffs in error are the owners of the Teutonic Building, in Chicago, and Andrew Erickson was in their employ as a * Decision rendered, Dec. 18, 1918. 121 N. E. Rep. 182. janitor, having to attend to the fifth, sixth, and seventh floors. On January 17, 1917, he was found at the bottom of the stairs of the sixth floor with a fractured skull, from which he died. On the application of his administrator an award was made under the Workmen's Compensation Act (Hurd's Rev. St. 1917, c. 48, §§ 126-152i) against the plaintiffs in error. A writ of certiorari issued by the circuit court was quashed, and this writ of error was sued out. Mrs. Erickson, the widow, testified that she came to the Teutonic Building about 6 o'clock in the evening, and the deceased came a little later. They went to the seventh floor, where he took off his clothes and dusted the hall and steps for a few minutes, while she went to the other side. He had a dust cloth with him and went downstairs, and the next thing she knew she heard him fall. She went downstairs, and found him lying on the sixth floor, and picked him up. There was no one on the sixth floor, and she was alone on the seventh floor, and he was sober. [1] The plaintiffs in error sought to prove Erickson's habits as to sobriety or drinking, and insist that they had a right to prove that he was habitually intemperate; but the arbitrator refused to hear the evidence. It was incompetent, for direct testimony that a person was sober at a particular time is not contradicted by evidence that he is in the habit of drinking or becoming intoxicated. [2, 3] Several witnesses testified that Erickson was drunk when he came to the building, and it is contended by the plaintiffs in error that the accident arose out of his intoxication, and not out of or in the course of his employment, and they argue that the preponderance of the evidence is that he was drunk when he came to the building. We said in Hahnemann Hospital v. Industrial Board, 282 Ill. 316, 118 N. E. 767, that an employee so drunk and helpless that he can no longer follow his employment cannot be said to be engaged in his employment, and an injury received while in that condition does not arise out of his employment. The condition of the deceased as to his intoxication was a question of fact, on which the evidence was contradictory, and we are authorized to examine the record for errors of law only. Parker-Washington Co. v. Industrial Board, 274 Ill. 498, 113 N. E. 976. [4] It is the duty of the arbitrator, the committee of arbitration, and the Industrial Commission fairly and impartially to consider and weigh all the evidence presented to them, and make their findings in accordance with the preponderance of the evidence. Their conclusions on questions of fact, based upon conflicting evidence, are not subject to review. Mrs. Erickson's testimony fairly tends to show that the deceased was sober, and received his injury while engaged in the performance of his duties. It is not within our province to consider the weight of the evidence to the contrary. Judgment of the circuit court is affirmed. SUPREME COURT OF ILLINOIS. DIETRICH INDUSTRIAL BOARD et al. (No. 12300.)* MASTER AND SERVANT WORKMEN'S COMPENSATION The Child Labor Law, the Women's Ten Hour Law, the Health, Safety, and Comfort Act, and a city ordinance requiring persons conducting meat markets to take out licenses, and imposing penalties for false weights, do not bring an employer conducting a store and butcher shop within the Workmen's Compensation Act by reason of section 3, cl. 8, applying the act to persons engaged in enterprises in which statutory or municipal ordinance regulations are imposed for the protection of employees. (For other cases, see Master and Servant, Dec. Dig. § 361.) Error to Circuit Court, Peoria County; John M. Niehaus, Judge. Proceedings under the Workmen's Compensation Act by Esther W. Dietrich to recover for the death of her husband, George L. Dietrich, opposed by Grant Furry, employer. The refusal of an award was affirmed, a writ of certiorari was quashed on defendant's motion, and claimant brings error. Affirmed. R. H. Lovett, L. O. Eagleton, and Howard White, all of Peoria, for plaintiff in error. Dailey, Miller, McCormick & Radley, of Peoria, for defendant in error. DUNN, J. George L. Dietrich was an employee of Grant Furry, and in the course of his employment on November 15, 1915, received an injury in consequence of which he died a few days later. He left a widow, Esther M. Dietrich, who applied to the Industrial Board for an award under the Workmen's Compensation Act. An arbitrator was appointed, and his finding was that Dietrich and Furry, his employer, were not on the day of the accident operating under the provisions of the Workmen's Compensation Act (Hurd's Rev. St. 1917, c. 48, §§ 126-152i). On a petition for review the Industrial Board affirmed the finding of the arbitrator, and the applicant sued out of the circuit court of Peoria county a writ of certiorari. On motion of respondent the writ was quashed, and the applicant has sued out a writ of error to review the judgment of the circuit court. At the time of the accident Grant Furry was engaged in conducting a retail grocery store and butcher shop in the city of Peoria and in connection with the butcher shop buying and selling poultry, dressed and live. The business was conducted in a one-story building, under which was a cellar where the reserve stock of goods was stored. No power-driven machinery was used in connection with the business, although a meat grinder and a coffee and spice grinder, both hand-driven, were used. The deceased was employed as a butcher. His duties consisted in carving, wrapping and selling meats. He also acted as a general handy man about the store and butcher shop, selling groceries and helping to store the surplus stock in the cellar, bringing up supplies from the cellar to the * Decision rendered, Dec. 18, 1918. 121 N. E. Rep. 226. |