suppose one of the provisions of the act was to provide a simple, speedy remedy in such cases, and to simplify the procedure. To hold that there may be material departures from the provisions of the act would tend to make confusion, would raise questions of fact for determination in some cases, and disputed questions of law, and tend to complicate the determination of such cases. The statute quoted plainly requires a notice in writing to be posted and filed with the Industrial Commissioner. Defendant did file a notice with the Commissioner but, as said, no notice was posted. If there was any other notice than that filed, even under defendant's contention, it was no more than the rumor or general talk among defendant's employees, as it claims.

Appellee cites Moore vs. Marshalltown Opera House Co., 81 Iowa, 45, 46 N. W. 750, and other cases, to the point that, where the law requires a notice to be filed, an implication is that it shall be in writing, and oral notice is insufficient. As said, the statute in question requires the posting of a written notice. Though not cited, we think Troth vs. Millville Bottle Works, 89 N. J. Law, 219, 98 Atl. 435, and Daniels vs. Chas. Boldt Co. (W. Va.) 88 S. E. 613 have a bearing. In the first case it was held that a notice posted around the works and given through the medium of the pay envelope was not in compliance with a statute providing that:

"In the employment of minors section 2 shall be presumed to apply unless the notice be given by or to the parent or guardian of the minor."

In the Daniels Case the substance of the holding was that the evidence showed the fact of payment by defendant of all premiums, dues, and assessments, so as to bring it under the provisions of the act, but that defendant had not posted typewritten or printed notices, as required by the act. Defendant's excuse was that it had applied to the state authorities therefor, and had not at the time of plaintiff's injuries received the same. The statute there made no provision for the furnishing of such notice by the state, and it was held that its failure to do so gives no excuse for noncompliance with the requirements of the statute.

A decision in the Supreme Court of Massachusetts has some bearing, too. In Young vs. Duncan, 218 Mass. 346, 106 N. E. 1, cited in note, 8 Neg. & Comp. Cases, at 653, the question was whether an employee must receive notice that the employer is a subscriber before he can be held to have waived his common-law rights, and whether the failure of the employer to give the notice required of him renders the Compensation Act inoperative as to the unnotified employee, if the latter so elects. The question in that case was in regard to notice by the employee. In discussing the questions, the court quoted a part of the act as follows:

"An employee * * * shall be held to have waived his right of action at common law to recover damages for personal injuries

if he shall not have given his employer, at the time of his contract of hire, notice in writing that he claimed such right, or, if the contract of hire was made before the employer became a subscriber, if the employee shall not have given the said notice within thirty days of notice of such subscription."

-and said:

"This sentence is plain and definite. The employee is held to have waived his common-law right if he fails to give notice 'at the time of his contract of hire.' This absolute and unequivocal provision is not made to depend upon any other condition or circumstance. It is not made to rest upon knowledge or notice to him of the fact that the employer is a subscriber. That it was not intended to be dependent upon such knowledge or notice is plain from the concluding clause, which, in the event of the employer becoming a subscriber after the employment, makes such waiver dependent upon notice. The expression of this condition in the one class of cases implied would exclude it from the other, even if the language used were less plain. It seems clear beyond a doubt from these words that the notice is required to be given when the terms of the employment are fixed by the contract of hire."

The opinion further discusses the question whether the language quoted was modified by an amended statute. The holding was that the amendment did not apply to notice by the employee. We think the ruling of the trial court was correct as to defendant's failure to post notice.

In the court below, plaintiff contended that defendant was not in a position to claim the benefits of the Liability Act, for the reason that it had not taken out the insurance as provided by section 2477m41, Code Supp. 1913, and the lower court so held. Appellant cites no authority on this assignment of error, and apparently is not pressing the question, because there is little argument. The section last referred to provides:

"Every employer, subject to the provisions of this act, shall insure his liability thereunder in some corporation, association or organization approved by the state department of insurance. Every such employer shall, within thirty days after this act goes into effect, exhibit, on demand of the state insurance department, evidence of his compliance with this section; and if such employer refuses or neglects to comply with this action, he shall be liable in case of injury to any workman in his employ under

part 1 of this act."

this act"; but the trial court held that under the entire act, There is some ambiguity about the words "under part 1 of insurance or be subject to the liabilities of one having rejected construed together it requires the employer to take out this the act. We are inclined to this view; but, in view of the fact that, as stated, this point is not pressed, and the further fact that

the point in paragraph 1 of the opinion is decisive of the case, we do not feel that we are required to pass upon the point.

It is our conclusion that there is no error, and the judgment of the district court is therefore affirmed.

Affirmed.

Gaynor, C. J., and Weaver and Stevens, JJ., concur.

SUPREME COURT OF ILLINOIS.

JACKSON

VS.

INDUSTRIAL BOARD OF ILLINOIS ET AL. (No. 11279.)*

1. WORKMEN'S COMPENSATION-EVIDENCE-NOTICE.

A letter from the employer's attorney to the attorney for the administratrix dated November 6, 1913, and acknowledging receipt of a notice of the claim, and of a letter from the attorney for the administratrix dated November 3d, showed prima facie that the employer and his attorney received the notice on or before November 6th, as there is always a presumption that instruments are made or written on the day they bear date, and this presumption applies to letters written by one party to a suit to the other party.

2. WORKMEN'S COMPENSATION-EVIDENCE-NOTICE.

In a proceeding under the Workmen's Compensation Act, the production of the notice of claim by employer on demand of attorney for the administratrix on the hearing before Industrial Board was positive proof that employer received the notice.

3. WORKMEN'S COMPENSATION-ELECTION OF REMEDIES. Where an administratrix brought an action under the federal Employers' Liability Act, for the death of employee, which was dismissed on demurrer on the ground that the employee was not engaged in interstate commerce at the time of the injury, the bringing of such suit was not an election of remedies preventing her from filing a claim under the Workmen's Compensation Act, as the doctrine of election of remedies has no application to an election between suits based on different statutes.

Error to Circuit Court, Vermilion County; John H. Marshall, Judge. Proceeding under the Workmen's Compensation Act by Mary Hoskins, administratrix of Nathaniel Ramey, deceased, to obtain compensation for his death. Compensation was awarded in the sum of $573.20, and the award confirmed by the Industrial Board and by the circuit court, and William J. Jackson, receiver, the employer, brings error. Affirmed.

* Decison rendered, Oct. 23, 1917. Rehearing denied, Dec. 5, 1917. 117 N. E. Rep. 705.

H. M. Steely and H. M. Steely, Jr., both of Danville, for Plaintiff in Error.

L. A. Cranston, C. H. Beckwith, and Acton & Acton, all of Danville, for Defendants in Error.

DUNCAN, J.

On a petition filed with the Industrial Board on September 29, 1915, by Mary Hoskins, administratrix of the estate of Nathaniel Ramey, deceased, an award of $573.20 was entered by the arbitrators, the same to be paid in weekly installments. The Industrial Board confirmed the award. A judgment was rendered by the circuit court of Vermilion county confirming the award, and a proper certificate having been made by that court, this writ of error was sued out of this court.

The essential facts in this case are not in dispute. The plaintiff in error is receiver of the Chicago & Eastern Illinois Railroad Company, and is engaged in both intrastate and interstate commerce by the operation of the said railroad, which extends from Chicago, through Bismarck and Danville, Ill., and Terre Haute, to Evansville, Ind. Between Chicago and Danville the line is double tracked, the east track being used for northbound trains, and the west track for south-bound trains. Plaintiff in error had in his employ a gang of painters, including the deceased, who painted buildings, bridges, and everything required to be painted along the railroad from Villa Grove north on the St. Louis division, from Terre Haute to Chicago, and from Brazil, Ind., to La Crosse, Ind., and on some spur tracks extending from the main lines. The paint gang had with them a bunk car, in which they slept, a cook car, in which they cooked and ate meals, in one end of which was the office of the foreman; a flat car, on which they carried ladders, tools, and a three-wheeled hand car, called a "speeder"; and a box car, in which they kept paints, oils, brushes, and other supplies. On October 2, 1913, this paint gang was located at Bismarck, a station nine miles north of Danville, their cars being stationed on the side track, near the passenger depot. On said date all the gang except the foreman and the cook were engaged in painting the outside of a two-story interlocking tower. The tower housed the levers which handled the interlocking plant of a branch road or a cut-off that ran southeast, and also the levers that operated the signals on posts both north and south of the tower, known as the "home" and "distance" signals. On said last date, the supply of paint at the tower being exhausted, the deceased Nathaniel Ramey, had gone to the box car at Bismarck to get some paint, and was returning to his work at the tower on the south-bound track on the speeder when a fast train bound from Chicago to Evansville approached him from the north. He stopped the speeder, removed the paint, and was apparently in the act of lifting the speeder from the track when the train struck the speeder, completely demolishing it and killing the de

ceased, either by striking him with the pilot beam or driving the speeder against him.

The administratrix through her attorneys, properly stamped and sent by registered mail a formal notice of the accident dated November 1, 1913, with a statement of claim, under the Workmen's Compensation Act, to the receiver of said railroad at his correct address. On November 6, 1913, the general attorney for plaintiff in error wrote a letter to the attorneys for the administratrix in which he acknowledged receipt of the said notice sent to the receiver, and stated that the notice had been referred to him, and that the claim agent of the receiver would call on the attorneys for the administratrix within the course of a couple of weeks. This letter of the general attorney starts off with this

sentence:

"Your letter of the 3d inst. and notice sent to Messrs. W. J. Jackson and Edwin W. Winters, receivers, both with reference to claim arising from the death of one Nathaniel Ramey, have been referred to me."

The claim agent did not call on the attorneys after they had received the general attorney's letter and discussed with the attorneys for the administratrix the matter of settlement of said case. The notice mailed to the receivers, as aforesaid, was produced by plaintiff in error at the hearing before the committee of arbitration on demand of the attorneys for the administratrix. The evidence does not disclose more definitely what day said notice was mailed to the receiver, and does not disclose what day the claim agent, Fowler, called on the attorneys of the administratrix with a view to a settlement of the cause.

On March 28, 1914, the adminstratrix of Ramey began a suit under the federal Employers' Liability Act for damages for causing the death of Ramey, in the circuit court of Vermilion county, against plaintiff in error. Plaintiff in error demurred to the declaration as amended and set out a number of special causes of demurer, one of which was that the declaration, and each count thereof, failed to show that Ramey at the time of his death was engaged in interstate commerce. The court sustained the demurrer, announcing, in substance, that the basis or ground of his decision was that the declaration showed that the deceased was not engaged in interstate commerce at the time he was killed. The administratrix elected to stand by her declaration, judgment was entered by the court on demurer against her in bar of her suit, and she prayed for but did not perfect an appeal from said judgment. Shortly thereafter the petition was filed before the Industrial Board. On the hearing before the Industrial Board patrol testimony was introduced to show that the circuit court sustained the demurrer to said declaration because it decided