that the facts stated in the declaration showed the deceased was not engaged in interstate commerce at the time he was killed.

[1, 2] Plaintiff in error contends in this court that the notice of the accident and claim for compensation was not served on him within six months after the accident, so far as the evidence shows. There is no contention that the notice of the accident and of claim mailed to the receiver was lacking in any particular, but simply that it was not proved that it was served within the six months required by the Workmen's Compensation Act. It is true that the record fails to disclose the date on which the attorneys for the administratrix mailed said notice to plaintiff in error. It also fails entirely to show what date the claim agent, Fowler, visited the attorneys for the administratrix with a view to settling the case. However, the letter of the general attorney of plaintiff in error acknowledged the receipt of the letter of the attorneys for the administratrix and the notice therein contained. The general attorney's letter was dated November 6, 1913, and speaks of the letter written for the administratrix as being dated November 3, 1913. The introduction of the general attorney's letter showed prima facie that the receiver and the general attorney received a notice on or before November 6, 1913. There is always a presumption that instruments are made or written on the day they bear date, and this presumption applies to let ters written by a party to a suit to the other party to the suit. 1 Jones' Com. on Evidence, § 51, by Horwitz. It was positively proved that plaintiff in error did receive the notice from the fact that the notice was in his possession and delivered to the opposite attorney at the hearing before the board when demanded of him.

[3-5] It is urged with much emphasis that the administratrix was estopped from asserting her claim before the Industrial Board because she elected her remedy under the federal Employers' Liability Act. The election of remedies has no application whatever to this suit. The doctrine of the election of remedies is applicable only where a party has elected between inconsistent remedies for the same injury or cause of action. Familiar instances of this doctrine are where a party waives a tort and sues in assumpsit, or where he elects to sue in replevin for property unlawfully taken in preference to bringing a suit for money damages for the unlawful taking, or where a party elects to affirm a contract and sue for a breach thereof rather than to sue for a rescission of the contract, etc. The doctrine does not apply to concurrent remedies that are not inconsistent with each other and has no application to an election between suits based upon different statutes. Where one has a right of action at common law and also under the statute for the same injury, the bringing of either of said suits is not a bar to the other, and particularly where no recovery has been under the one or the other. Apparently in this case the administartrix supposed she had a

right of action under the federal Employers' Liability Act and brought suit under that statute. By the judgment of the court in that case it was determined that she had no such right of action. She then brought her action for compensation under the state law. A suit under a state law and a judgment therein against the plaintiff are no bar to a suit for the same injury under the federal Employers' Liability Act, where it appears that there could be no recovery under the state law for the injury. Troxell vs. Delaware, Lackawana & Western Railroad Co., 227 U. S. 434, 33 Sup. Ct. 274, 57 L. Ed. 586. The converse of that proposition is equally true-i. e., that a judgment against plaintiff in a suit brought under the federal Employers' Liability Act is no bar to an action under a state law for the same injury, where it is determined that the party injured was not engaged or employed in interstate commerce at the time of the injury.

[6, 7] It is argued by plaintiff in error that notwithstanding the fact that the circuit court by its judgment on the demurrer determined that the deceased was not engaged in interstate commerce and for that reason gave judgment on demurrer, the judgment of the court in that case does not estop plaintiff in error to contend in this proceeding that the deceased was, in fact, engaged in interstate commerce. The court by its judgment in that case determined one question of fact that necessarily defeated the administratrix in that suit-i. e., that the deceased was not engaged in interstate commerce, and for that reason she could not maintain her suit under the federal Employers' Liability Act. That judgment completely estops plaintiff in error, as well as the administratrix, from contending in any other suit between the same parties that the deceased was injured while employed by the plaintiff in error in interstate commerce. A judgment on demurrer is equally conclusive by way of estoppel as a verdict finding the same facts followed by a judgment on the verdict, and the facts thus established cannot afterwards be contested between the same parties where the fact is an ultimate fact determining the question of liability. Nispel vs. Laparle, 74 Ill. 306. The public announcement or reason of the court or judge may be proved by parol evidence in order to determine what issues were definitely passed upon and decided. 2 Van Fleet on Former Adjudication, § 421. The declaration to which the demurrer was interposed stated fully and particularly all the facts in detail, both in regard to the employment of the deceased and as to all of his acts that led up to his death and what he was doing at the precise moment he was killed.

[8] Plaintiff in error argues that the test question in determining whether or not a personal injury to an employee of a railroad company is within the purview of the federal Employers' Liability Act is: What is its effect upon interstate commerce? Does it have the effect to hinder, delay, or interfere with such commerce? It is then stated by him that if the precise act in

which the deceased is engaged at the time of his death did have the effect to hinder, delay, or interfere with such commerce the personal injury to the deceased is within the purview of the act. Our attention is then called to the fact that the deceased, at the precise moment he was hit by the train, was engaged in an attempt at removing the speeder, which was then an obstruction to such commerce, and that therefore he was engaged in an act that brought his injury within the purview of the said act, and that the judgment of the circuit court on the demurrer does not estop plaintiff in error from contending that that fact brought the deceased within the purview of the act. It is a sufficient answer to this contention to refer to section 1 of the federal Employers' Liability Act, which provides that every common carrier by railroad, while engaged in commerce between any of the several states, shall be liable in damages to any person suffering injury "while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative," etc. It is the employment that determines whether or not the injury to the employee is within the purview of that act, and not the act of the employee just at the time of his injury. The employment of the deceased was in painting, as already set forth in this opinion, and not in removing the speeder or an obstruction from in front of said train.

It is finally argued that the Workmen's Compensation Act is unconstitutional. The constitutionality of the act is no longer an open question in this state so far as the particular grounds urged by plaintiff in error are concerned. This court has sustained the validity of the act in the recent case of Chicago Railways Co. vs. Industrial Board, 276 Ill. 112, 114 N. E. 534, in which the same objections were raised and argued as are raised and argued in this case.

The court properly quashed the writ of certiorari and sustained the award of the Industrial Board. The judgment of the circuit court is therefore affirmed.

Judgment affirmed.

APPELLATE COURT OF INDIANA.

DIVISION No. 2.

BUCYRUS CO.

VS.

TOWNSEND ET AL. (No. 10033.)*

1. WORKMEN'S COMPENSATION-APPEAL-ERROR.

An assignment of error on appeal from Industrial Board, that award is contrary to law, presents both the sufficiency of the evidence and the facts.

2. WORKMEN'S COMPENSATION-AWARD.

Before the Industrial Board can allow compensation to dependents it must be shown that deceased received injury by accident, arising out of and in the course of his employment, and that death resulted from such injury.

3. WORKMEN'S COMPENSATION-CAUSE OF DEATH —EVIDENCE.

Evidence in proceeding by dependents under Workmen's Compensation Act, sufficient to show an injury by accident to deceased, arising out of and in the course of his employment, and that it proximately caused his death.

4. WORKMEN'S COMPENSATION-PROOF.

Dependents seeking compensation need not present proof entirely excluding possibility that decedent's death was due in part to a diseased condition of his heart.

Appeal from State Industrial Board.

Proceeding under Workmen's Compensation Act by Daisy Townsend and others against the Bucyrus Company. From an award the employer appeals. Affirmed.

Phelps F. Darby, of Evansville, for Appellant.
Elmer Q. Lockyear, of Evansville, for Appellees.

IBACH, P. J.

Appellees' husband and father was an employee of appellant company, and while so employed it is claimed he received a serious personal injury by accident, arising out of and in the course of his employment, from which he died on August 8, 1916. On February 3, 1917, appellees, as dependents of decedent, filed their verified application before the Industrial Board for an adjustment of their claim for compensation, which was granted, and they were awarded $7.29 per week for 300 weeks. [1] It is contended by appellant that the award of the full board is not sustained by sufficient evidence and is contrary to law. The latter assignment presents both questions. Union

* Decision rendered, Nov. 16, 1917. 117 N. E. Rep. 565

Sanitary Mfg. Co. vs. Davis, 115 N. E. 676, 677. The facts appearing from the findings are that on August 1, 1916, decedent was in the employ of appellant at an average weekly wage of $13.26. On that date he received a personal injury by an accident arising out of and in the course of his employment, which resulted in his death August 8, 1916; that the appellant had actual knowledge of his injury at the time it occurred, and that it rendered first aid at the time of his injury and on the second day thereafter furnished an attending physician who attended him at the hospital until his death. He left surviving him Daisy Townsend, his wife, and the other named appellees, his children. Decedent and his wife and children were at the time of his injury and death living together as one family, two sons, Elma and Alvis, were working and earning wages, and the wife and the other children being wholly dependent upon decedent for their support.

It appears from the record that the decedent had been in the employ of appellant for several weeks prior to August 1, 1916, on what is termed a "band press," a machine used to press a copper band around shells, and the shells were shrapnel shells about 8 inches in diameter and 21⁄2 feet long. The band-press is about 31⁄2 feet high. On the floor there was an iron T-rail extending about an inch above the level of the floor. The decedent took a shell and started to the press. His foot slipped on the T-rail as he was about to lay the shell down, and he fell and hit his breast against the lever that operated the press. This lever consisted of an iron rod about an inch in diameter with a steel handle, and was used for starting and stopping the machine. Decedent was taken to his home that night and immediately went to bed complaining of pain in his left side and had trouble in breathing. Two days later he was taken to the hospital under the care of a physician. After the injury there was found a mark over his heart about five inches long. The only sickness he ever had was about a year before, and that sickness lasted about two weeks. He had been at work almost continuously and always worked at general labor and had never complained of any thing being wrong with his heart or lungs. The attending physician testified he found him immediately following the accident suffering from a pain in the left side of the chest in the region of the heart, his breathing was bad, jerking whenever he took a long breath, his heart was laboring and there was abnormal sound of the heart also, that a blow over the heart would cause acute disease and, in this case, the fall brought on a condition of the heart known as "pericarditis," and that killed decedent.

[2] In all cases such as the present, before the Industrial Board can allow compensation to a claimant it must be made to appear that the decedent received a personal injury by accident arising out of and in the course of his employment, and that the death of the employee resulted from such injury.