formed, universally hold that an injury to an employee while engaged in a voluntary act, not accepted by or known to the employer and outside the duties for which he is employed, cannot be said to arise out of his employment. Ohio Building Vault Co. v. Industrial Board, 277 Ill. 96, 115 N. E. 149, and Alexander v. Industrial Board, 281 Ill. 201, 117 N. E. 1040, are clearly distinguishable from the decisions above cited, and not in conflict with the rule there announced. [1] Defendant in error contends Sherman killed Derix in order to obtain possession of the car, and from this premise argues that the death arose out of the employment. There was no proof to support that position, except the inference from the fact that Sherman drove the car to Clinton, Iowa, after the killing and offered to sell it for $300. Sherman testified he did not intend to steal the car; that he hired it to drive to Ladd, where he intended taking a train on the Milwaukee railroad at 1:30 o'clock. After reaching Ladd, and while on a pleasure ride, which, so far as any proof in the record shows, was taken at the suggestion of Derix and was outside the duties of his employment, Sherman claims his mind became a blank, and he had nothing but a confused memory of what occurred from that time until the next day, when he found himself in possession of the car, which he drove to Clinton, were he tried to sell it. Derix's employment only authorized and required him to deliver Sherman at the depot in Ladd. There is no suspicion from anything in the record that before the arrival at Ladd there was any thought or purpose on the part of Sherman to harm Derix or get possession of the car, and the inference is clearly warranted that, if Derix had delivered Sherman at the depot in Ladd, which was what he was employed to do, he would not have been harmed. The pleasure drive from Ladd, according to the proof, was not taken at the suggestion of Sherman, but was proposed by Derix, and was not only outside of his employment, but was known by him to be contrary thereto, as shown by the excuse he proposed to make to his employer for his later return to La Salle. [2] The burden of proof rested upon defendant in error to show that the injury arose out of and in the course of the employment. Ohio Building Vault Co. v. Industrial Board, supra. It is true Sherman cannot be considered a very reliable witness, because at times, at least, he appears to have been crazy; but his testimony that after arriving at Ladd the parties went for a drive, which formed no part of the employment of Derix, is corroborated by the circumstance of finding the dead body of Derix at the place it was found the next day. There is no proof in the record from which it can be legitimately inferred that Derix was killed by Sherman while he was performing any duty of his employment. The Judgment is reversed, and the cause remanded, with directions to the circuit court to set aside the award of the Industrial Commission. Reversed and remanded, with directions. SUPREME COURT OF ILLINOIS. NEW STAUNTON COAL CO. V. FROMM. (No. 12160.)* 1. MASTER AND SERVANT-DUTY OF MASTER-SAFE PLACE. It is the duty of an employer to use reasonable care to provide an employee a reasonably safe place in which to work. (For other cases, see Master and Servant, Dec. Dig. §§ 101, 102 [8].) 2. PLEADING CONLUSION. OF LAW-DUTY. An allegation that it was defendant's duty to do certain things was an averment of a conclusion, it being necessary in pleading duty to allege facts from which the law will raise the duty. (For other cases, see Pleading, Dec. Dig. § 8[8].) 3. MASTER AND SERVANT-INJURY TO EMPLOYEE-PLEADING-SUFFICIENCY OF COMPLAINT. A complaint that employer operated mine, that employee was engaged in loading coal in room 46, the roof of which was in dangerous condition, to employer's knowledge, the employer knew employee was working in such room and permitted him to continue, and that by reason of such negligence employee was injured, held sufficient allegation of employee's duty, breach thereof, and injury resulting therefrom. (For other cases, see Master and Servant, Dec. Dig. § 258[2].) 5. MASTER AND SERVANT-WORKMEN'S ACT-WAIVER-ASSUMED RISK. COMPENSATION Employer who has elected not to accept Workmen's Compensation Act has waived its right to interpose the common-law defense of assumed risk. (For other cases, see Master and Servant, Dec. Dig. § 356.) 6. MASTER AND SERVANT-INJURY TO EMPLOYEE-SAFE PLACE TO WORK-COAL MINE. Evidence held to show that defendant coal mine operator negligently permitted plaintiff employee to work under a dangerous roof. (For other cases, see Master and Servant, Dec. Dig. § 278[10].) Error to Appellate Court, Fourth District, on Appeal from Circuit Court, Madison County; J. F. Gillham, Judge. Action by Peter Fromm against the New Staunton Coal Company. Judgment for plaintiff affirmed by Appellate Court, and defendant petitions for certiorari. Affirmed. William E. Wheeler, of East St. Louis, for plaintiff in error. CARTER, J. This was an action brought in the circuit court of Madison county by defendant in error against plaintiff in error to recover damages for personal injuries sustained by him in the coal mine of plaintiff in error. A verdict for $2,000 was obtained in favor of defendant in error, *Decision rendered, Dec. 18, 1918. Rehearing denied Feb. 5, 1919. 121 N. E. Rep. 594. upon which judgment was entered. An appeal was taken to the Appellate Court for the Fourth District, where the judgment was affirmed, and the cause has been brought here by certiorari. The original declaration filed September 16, 1916, consisted of two counts. A general demurrer filed to both these counts was sustained, and February 16, 1917, defendant in error filed an amended declaration of eight counts. A demurrer was sustained to the first seven of these counts, and the eighth count was thereafter abandoned by defendant in error, who later, March 28, 1917, filed an amended declaration consisting of five counts. This last declaration was filed more than two years after the date of the injury. A demurrer filed to this declaration was sustained as to the first, second, third, and fifth counts, and overruled as to the fourth count. Thereafter plaintiff in error filed a plea of general issue and a special plea of the statute of limitations to the fourth count. Defendant in error demurred to said special plea, and the demurrer was sustained. Plaintiff in error elected to abide by such plea, and the case was tried solely on the fourth count of the amended declaration. This alleged, generally, as did the second count of the original declaration, common-law negligence. The principal question involved here is as to whether the fourth count was a mere restatement, in better form, of the same cause of action stated in the second count of the original declaration. · It seems to be conceded by counsel for plaintiff in error that, if the fourth count of the amended declaration is merely a restatement of the cause of action, then the demurrer to the fourth count was properly overruled; but it is earnestly argued that the second count of the original declaration did not state a cause of action. That count, after alleging the ownership and operation of the coal mine by plaintiff in error and the employment of defendant in error therein, further alleged that on November 18, 1914, defendant in error was engaged as an employee of plaintiff in error in loading coal in room 46 of the mine; that on that day the coal in the roof of room 46 was loose and likely to fall and injure persons working therein, all of which facts plaintiff in error knew or could have known by the exercise of ordinary diligence; that therefore it became and was the duty of plaintiff in error on said date to notify defendant in error that the coal in the roof was loose and likely to fall and injure persons working in said room; and that plaintiff in error did not regard its duty in that behalf, but, on the contrary, negligently and carelessly permitted defendant in error to load coal in said room without knowledge of the dangerous condition, whereby he was struck and injured, etc. [1-4] It is the duty of an employer to use reasonable care to provide an employee a reasonably safe place in which to work. Metcalf Co. v. Nystedt, 203 Ill. 333, 67 N. E. 764. It is not sufficient to allege in the declaration that it is the duty of the defendant to do certain things, as that would be but the averment of a conclusion; but the declaration must state facts from which the law will raise the duty. McAndrews v. Chicago, Lake Shore & Eastern Railway Co., 222111. 232, 78 N. E. 603; Bahr v. National Safe Deposit Co., 234 Ill. 101, 84 N. E. 717. The duty, if any exists, must arise from the facts stated. Said count 2 alleged the ownership and operation of the mine by plaintiff in error; that defendant in error was employed by plaintiff in error and was engaged as its servant in loading coal in room 46; that the roof of said room was in a dangerous condition; that plaintiff in error knew of such dangerous conditions, or could have known the same by the exercise of reasonable care; and that it also knew that defendant in error as such servant, was engaged in loading coal in said room. Here we find allegations of fact sufficient to impose upon plaintiff in error the legal duty to use reasonable care, on the day in question, to provide defendant in error with a reasonably safe place in which to work. The count further alleges that plaintiff in error negligently and carelessly permitted defendant in error to load coal in said room after knowledge on its part of the dangerous condition; that defendant in error sustained injuries on account of the negligence of plaintiff in error. This court has stated that in actions of this character it is necessary to allege and prove, in order to make out a case, three things: (1) The existence of a duty on the part of defendant to protect the plaintiff from the injury of which he complains; (2) the failure of the defendant to perform that duty; and (3) an injury to plaintiff resulting from such failure Bahr v. National Safe Deposit Co., supra, and cases there cited. These three elements were averred in the second count of the original declaration. The fourth count of the second amended declaration is a statement of the same condition of facts, but without the surplusage that is conceded by all parties was a part of the second count of the original declaration. It is the settled doctrine of this court that if an original declaration is filed in apt time, stating a cause of action, though imperfectly and defectively, subsequent amendments, though filed after the statute of limitations has run, will not be barred thereby if they amount to no more than a restatement, in a different or better form, of the cause of action originally declared on. Swift Co. v. Gaylord, 229 III. 330, 82 N. E. 299: St., Louis Merchants' Bridge Railway Ass'n v. Schultz, 226 111. 409, 80 N. E. 879; McInerney v. Western Packing Co. 249 Ill. 240, 94 N E. 519; Vogrin v. American Steel Co., 263 Ill. 474, 105 N. E. 332. [5] Counsel for plaintiff in error further argues that the trial court erred in refusing three instructions requested by plaintiff in error. These instructions, as we read them, in substance advised the jury that if defendant in error knew of the dangerous condition of the roof he could not recover, and by them the defendant would be given the benefit of the doctrine of assumed risk as a defense in this case. The declaration averred, and it was expressly stipulated on the trial, that plaintiff in error had elected not to accept the provisions of the Workmen's Compensation Act (Hurd's Rev. St. 1917, c. 48, §§ 126-152i). Having elected not to accept the provisions of that act, plaintiff in error waived its right to interpose the common-law defense of assumed risk. Deibeikis v. LinkBelt Co., 261 IH. 454, 104 N. E. 211, Ann. Cas. 1915A, 241; Crooks v. Tazewell Coal Co., 263 Ill. 343, 105 N. E. 132, Ann. Cas. 1915C, 304; Vaughan's Seed Store v. Simonini, 275 I. 477, 114 N. E. 163, Ann. Cas. 1918B, 713. Under these authorities, the instructions were therefore properly refused. For the same reason plaintiff in error was not entitled to a peremptory instruction in its behalf on the ground that defendant in error had assumed the risk. [6] Counsel for plaintiff in error further argues that the trial court erred in refusing to give a peremptory instruction on its behalf. The only negligence charged in the fourth count, on which the case was tried, was that plaintiff in error negligently permitted defendant in error to work under a dangerous roof. This was the only question of fact to be determined by the jury. No evidence was offered by plaintiff in error. Defendant in error and two witnesses testified to the dangerous condition of the roof for one or two days prior to the accident, and another witness testified to its condition after the accident. The evidence on behalf of defendant in error warranted the verdict on the question of negligence, and the peremptory instruction was therefore properly refused. The judgment of the Appellate Court will be affirmed. SUPREME COURT OF ILLINOIS. WABASH RY. CO. ข. INDUSTRIAL COMMISSION ET AL. (No. 12274.)* 1. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT EVIDENCE. Evidence held to show that an injury to a servant which developed into tuberculosis of the bones was one arising in the course of his employment; the fact that the servant was predisposed to that affliction not changing the result. (For other cases. see Master and Servant, Dec. Dig. § 405[4].) 2. MASTER AND SERVANT-WORKMEN'S ACT-NOTICE. COMPENSATION Notice of injury suffered by a watchman at railway shops given to the foreman or superintendent of the shops held sufficient notice under the Workmen's Compensation Act to charge the railroad company. (For other cases, see Master and Servant, Dec. Dgi. § 398.) 3. MASTER AND SERVANT-WORKMEN'S ACT-SETTLEMENTS. COMPENSATION Though the receipt and release given at the time a servant made settlement for injuries did not mention the Workmen's Compensation Act, held that, as the employer was operating under the act, it must be deemed the settlement was made under the act; for it would be contrary to purpose of the act to allow such an employer to relieve itself in that manner from further liability. (For other cases, see Master and Servant, Dec. Dig. § 382.) 4. MASTER AND SERVANT-COMPENSATION-REVIEW-TIME FOR FILING PETITION. A settlement made between a master and an injured servant held one contemplated by Workmen's Compensation Act, § 19 (h), so petition to review on account of the recurrence of the injury might be filed within 18 months. (For other cases, see Master and Servant, Dec. Dig. § 419.) 5. COMMERCE - "INTERSTATE COMMERCE" WATCHMAN IN SHOP. RAILROADS A watchman of railroad shops where engines used in interstate commerce were repaired held not engaged in "interstate commerce" so an action for injuries would not be governed by the federal Employers' Liability Act (U. S. Comp. 1916, §§ 8657-8665). (For other cases, see Commerce, Dec. Dig. § 27[5].) (For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce. 6. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT "TOTAL DISABILITY." Under Workmen's Compensation Act, § 8 (e), defining a disability as the loss of both arms or legs or any two of them, and in view of *Decision rendered, Dec. 18, 1918. Rehearing denied, Feb. 6, 1919. 121 N. E. Rep. 569 Vol. LIII-22. |