went up on the elevator with the operator to the top floor of the building and assisited in loading boxes on the elevator, and when it was loaded, he got on the boxes in the elevator, which on its way down soon suddenly stopped between floors. Nichols was found dead between the boxes and the top of the elevator.

Under the statute and rule of court, the appeal was heard by the Superior Court for New Castle County, on the record of the proceedings before the Industrial Accident Board.

The ground of the appeal was that Rennie E. Nichols, the deceased husband of the claimant, was not killed in the line of his duty or the performance of any act incidental thereto, and that the employer is not bound by the provisions of the Delaware Workmen's Compensation Act. The Industrial Accident Board awarded to the claimant reasonable burial expenses, not exceeding one hundred dollars, and the sum of three dollars and seventy-five cents per week, beginning March 19, 1918, until modified or terminated under the provisions of "The Delaware Workmen's Compensation Law of 1917."

Section 141 of said act (Code, § 3193vv), 29 Del. Laws, 790, provides: "This article shall not apply to farm laborers, domestic servants, officers and servants of the State, or any governmental agency created by it, nor to their respective employers; nor to the employers or employees in any employment in which less than five persons are employed."

At the hearing in the appeal, the first question raised in behalf of the Employer was:

"Doesn't the Act

*apply only to employers who employ more than five persons in one employment and located in one place?'

And the contention was made that where an employer is engaged in general hauling and has two men on each truck or wagon, as shown by the testimony in this case, each truck or wagon with its crew constitutes separate and dinstinct employments. It was further urged that the evidence shows that the husband of the claimant was not, at the time he was killed, engaged "in or about nis employer's business where his services required his presence as a part of such services at the time of the injury," and that if the claimant is entitled to compensation it is, because her husband was at the time of the injury "engaged elsewhere in or about his employer's business where his services require his presence as a part of such service at the time," etc. Section 138a (Code, § 3193ss), 29 Del. Laws, 789.

It was insisted that there was no evidence that the employer instructed his men to go to the top floor of the building in which the accident occurred to bring down goods on an elevator and that the most that can be said for the claimant is that the employees did sometimes do so with the knowledge and consent of the employer. It was further claimed that the death of the claimant's husband was the result of "his deliberate and reckless indifference to danger" within the purview of section 129 (Code, § 3193jj), 29 Del. Laws, 786.

For the claimant it was urged that the act applies to any employment in which five or more persons are employed, working for the employer in the particular employment, whether on the same job or on different jobs. That it is the general employment, and not the subdivisions thereof, which is contemplated by the Statute.

That while the evidence was conflicting on the point that the deceased was not engaged in the service of his employer when he was killed, yet, there was enough to warrant the finding of the Board, and especially so in view of the evidence tending to show that the employer knew and consented that the deceased at times helned to bring the goods from the building to the platform.

That it seems obvious that the deceased did not manifest, at the time of the accident, a "deliberate and reckless indifference to danger"; for

the elevator was in good condition, and a person could have safely come down on top of the boxes, if properly loaded, and there is nothing to indicate, much less show, that the deceased was aware that the boxes had not been properly loaded on the elevator.

CONRAD, J., delivering the opinion of the Court:

[1] The Court finds no error in the first contention made by appellant's counsel, viz., that there were less than five persons engaged in the same employment at the time of the accident. The appellant was a teamster and by the evidence it clearly appears that he had more than five persons in his employ, although all of his employes were not at the time of the accident working at the same job. The Statute contemplates a general employment, and not the subdivisions thereof.

[2] The.Court is satisfied that the deceased at the time of the accident was clearly engaged in the service of his employer. Sufficient evidence appears in the case to have warranted the Board in finding that the deceased was killed when engaged in a work in a way and at a place that had been suggested by his employer. So in that finding to that effect is approved.

[3] The evidence shows that the death of the deceased resulted from the improper or unskillful loading of the boxes on the elevator, but the deceased when he took a place on top of the boxes was seemingly unaware of that fact, and did not by so doing show "a deliberate and reckless indifference to danger." The elevator seems to have been in good order and if the boxes had been properly loaded, was not dangerous and a person could with safetv have ridden on top of them.

The finding of the Board is affirmed.

CITY OF CHICAGO v. INDUSTRIAL COMMISSION et al (No. 13153.) (Supreme Court of Illinois. April 21, 1920. Rehearing Denied June 3, 1920.)

127 Northeastern Reporter 351.

MASTER AND SERVANT--CITY FIREMEN HELD NOT “EMPLOYE" WITHIN COMPENSATION ACT.

Battalion chief of Chicago fire department until whose death it could not be determined that he would not leave a widow or minor children, beneficiaries or heirs to whom pension would be payable from firemen's pension fund, to which city contibuted, held not an "employe" within Workmen's Compensation Act as amended by Laws 1915, p. 400, though he died leaving no one surviving entitled to receive a pension under Firemen's Pension Fund Act, § 6.

(For other cases, see Master and Servant, Dec. Dig. § 364.)

(For other definitions, see Words and Phrases. First and Second Series, Employee.)

Carter, J., dissenting.

Error to Circuit Court, Cook County; Oscar M. Torrison, Judge. Proceedings under the Workmen's Compensation Act by Helen Lacey for compensation for the death of her father, Martin Lacey, opposed by the City of Chicago, the employer. Compensation was awarded by the Industrial Commission, the award affirmed by the circuit court, and

the City brings error. Judgment of the circuit court reversed, and award of Industrial Commission set aside.

Samuel A. Ettelson, Corp. Counsel, and William H. Devenish, City Atty., both of Chicago (Robert H. Farrell, of Chicago, of Counsel), for plaintiff in error.

Vent & Warfield, of Chicago (Thomas G. Vent, of Chicago, of counsel), for defendant in error.

THOMPSON, J. The writ of error is prosecuted, by leave of court, to review a judgment of the circuit court of Cook county affirming a decision of the Industrial Commission awarding compensation to defendant in error for the accidental death of her father, Martin Lacey.

Martin Lacey, deceased, was employed in the city of Chicago as a battalion chief in its fire department. November 8, 1916, while responding to an alarm of fire, deceased met with an accident resulting in his death. At the time of his death his salary was $3,000 per annum. During all of the time that deceased was a member of the fire department the city of Chicago maintained and distributed a pension fund in the manner provided by law, and the deceased contributed his full share to said pension fund. At the time of his death he left surviving him as his only heir at law and next of kin his daughter, Helen Lacey, 31 years of age, whom he supported up to the time of his death, and who was dependent upon him for support.

The only question presented for decision is whether or not deceased was an employe of the city of Chicago within the meaning of the Workmen's Compensation Act as amended in 1915. Section 5 of the act provided:

"The term 'employe' as used in this act shall be construed to mean: First-Every person in the service of the state, county, city, * * * under appointment, or contract of hire, express or implied, oral or written, except any employe thereof for whose accidental injury or death arising out of and in the course of his employment compensation or a pension shall be payable to him, his personal representatives, beneficiaries or heirs, from any pension or benefit fund to which the state, or any county, city, or municipal corporation therein contributed in whole or in part." Laws of 1913, p. 340.

* * *

Section 5 of the Firemen's Pension Fund Act provides for compensation to the fireman in case he becomes disabled, and section 7 provides for his compensation in case he is retired. Section 6 of said act provides: "If any fireman shall die from any cause while in the fire service or during retirement after twenty years' service, as hereinafter provided, and shall leave a widow, minor natural child or children under sixteen years of age, or dependent natural father or mother surviving, said board of trustees shall direct the payment from such pension fund of the following sums monthly." Laws of 1915, p. 295.

It will be seen, therefore, that under the provisions of section 5 of the Workmen's Compensation Act the deceased would not have been, during his lifetime, entitled to receive compensation. Up until the very time of his death he was excepted from the provisions of the Compensation Act because by the provisions of sections 5 and 7 of the Pension Act he was entitled to compensation, and by the provisions of section 6 of the Pension Act his widow or minor children were entitled to compensation. Until his death it was not possible to determine that he would not be survived by a widow or minor children, and so it was not possible to determine until after his death that he would not leave surviving him "beneficiaries or heirs" to whom a pension would be payable from a fund to which the city had contributed. Whether or not a person

is an employe within the meaning of the Workmen's Compensation Act must be determined from the situation existing during his lifetime. If during his lifetime deceased was not an employe of the city of Chicago within the meaning of the Workmen's Compensation Act, and not entitled to receive compensation under its terms, he cannot become an employe after his death. The fact that deceased died leaving no one surviving éntitled to receive a pension under the Firemen's Pension Fund Act, could not, ipso facto, after his death bring the deceased with the provisions of the act from which he was excluded during his lifetime.

The award of the Industrial Commission was erroneous, and should have been set aside by the circuit court. The judgment of the circuit court is therefore reversed, and the award of the Industrial Commission set aside.

Judgment reversed.

Carter, J., dissenting.

O'BRIEN v. CHICAGO CITY RY. CO. et al. (No. 13218.) (Supreme Court of Illinois. April 21, 1920. Rehearing Denied June 3,

1920.)

127 Northeastern Reporter 389.

3. MASTER AND SERVANT-DECLARATION BY CITY EMPLOYE AGAINST STREET RAILROAD HELD NOT UNDER COMPENSATION ACT

A declaration for injuries to a city employee against a street railroad, whose car struck him, states a common-law action for damages, not an action under the Workmen's Compensation Act, which relates to the relation of master and servant, and an allegation in the declaration that defendant had elected not to come under the Compensation Act was surplusage.

(For other cases, sce Master and Servant, Dec. Dig. § 401.)

4. MASTER AND SERVANT-CITY EMPLOYE NOT PRESUMED WITHIN COMPENSATION ACT.

Since a city is engaged in work, some of which is classed as hazardous under Compensation Act. and some of which is nonharzardous, there is no presumption that an employe who was injured was subject to that act. (For other cases, see Master and Servant, Dec. Dig. § 364.)

Appeal from Appellate Court, First District, on Appeal from Superior Court, Cook County; John J. Sullivan, Judge.

Action by Owen O'Brien against the Chicago City Railway Company and others. A judgment for the plaintiff was reversed, without remand by the Appellate Court, and plaintiff appeals. Judgment of Appellate Court reversed, and cause remanded to that court, with directions to pass on assignments of error not passed on by it.

James C. McShane, of Chicago, for appellant. Charles Le Roy Brown, of Chicago (John R. Guilliams and John E. Kehoe, both of Chicago, of counsel), fo ippellees.

STONE, J. The appellant filed his declaration in the superior court of Cook county, charging the appellees with negligently injuring him while he was engaged in his work as an employe of the city of Chicago, at

the corner of Ashland avenue and Thirty-seventh street, in said city. The declaration consisted of two counts, which charge the defendants with owning and operating a street railway, and that by the negligence of the motorman in charge of one of the defendants' cars the plaintiff, while engaged in his work for the city, was struck and injured. A hearing was had before a jury and a verdict was returned in the sum of $12,500. Motions for new trial and in arrest of judgment were overruled and judgment entered thereon against the defendants. The cause was appealed to the Appellant Court, where the judgment was reversed without remanding, on the ground that the declaration did not state a cause of action-it being there held that the declaration showed that the suit was brought under the second clause of section 29 of the Workmen's Compensation Act (Laws 1913, p. 354); that therefore it should have alleged that the injury in question was not proximately caused by the negligence of plaintiff's employer, the city of Chicago; that since no cause of action was stated in the declaration, and it appearing that the time for bringing the action had expired, it would be useless to reverse the judgment and remand the cause, and therefore the judgment was reversed without remanding.

While it was not so charged in the declaration, it appeared from the evidence that appellant and his employer, the city of Chicago, were operating under the Workmen's Compensation Act as to the employment in which appellant was engaged. It also appeared in evidence that the defendants had elected not to be bound by the Workmen's Compensation Act, and an averment to that effect was contained in each count of the plaintiff's declaration.

It is contended by appellant that the declaration stated an action for negligence at common law, and that the declaration did not contain averments touching the question whether or not the plaintiff and his employer were operating under the Workmen's Compensation Act, and that the question as to the requirements of a declaration under the Workmen's Compensation Act did not, therefore, arise, and the averment relating to the defendants having elected not to be bound by the Workmen's Compensation Act was surplusage. Appellees contend that, even if this be so, the cause must be remanded to the superior court, for new trial by reason of the improper admission in evidence of a certain contract between the appellant and the city of Chicago, and by reason, also, of an error in giving the appellant's fifth instruction.

[1, 2] The first question to be passed upon in this case is whether or not the declaration of appellant stated a cause of action. Counsel on both sides have made extended arguments on the question as to whether or not the appellant's declaration brought his case under the second clause of section 29 of the Workmen's Compensation Act. It also appears that on the trial counsel for appellant, as well as for appellee, proceeded on the theory that the Compensation Act affected the rights of the parties. Neither the evidence introduced nor the arguments made on the trial or here are the test whether the declaration states a cause of action, but that question is to be determined from the language of the declaration itself, without reference to the evidence or the arguments of counsel. American Car Co. v. Hill, 226 I11. 227, 80 N. E. 784. The Appellate Court found that the declaration attempted to state a cause of action under the second clause of section 29 of the Workmen's Compensation Act, and held that it did not state a good cause of action under such act, and reversed the judgment without remanding. In the trial court appellees here entered a motion in arrest of judgment, which was overculed. The sufficiency of the declaration may be reached on motion in arrest of judgment. The issue under such motion is the sufficiency of the declaration. It

The declaration as originally filed consisted of one count. averred that on the date of the injury, and prior thereto, both defendants, the Chicago City Railway Company and the Chicago Railways Company.