finding of the commissioner-whether the injury to Marchiatello arose out of his employment. An injury arises out of an employment when it occurs in the course of the employment and is the result of a risk involved in the employment or incident to it, or to the conditions under which it is required to be performed. The injury is thus a natural or necessary consequence or incident of the employment or the conditions under which it is carried on. Sometimes the employment will be found to directly cause the injury, but more often it arises out of the conditions incident to the employment. But in every case there must be apparent some causal connection between the injury and the employment, or the conditions under which it is required to be performed, before the injury can be found to arise out of the employment. Jacquemin v. Turner & Seymour Mfg. Co., 92 Conn. 382, 384, 103 Atl. 115, L. R. A. 1918E, 496, Robinson v. State, 93 Conn. 49, 52, 104 Atl. 491; Mann v. Glastonbury, 90 Conn. 116, 119, 96 Atl. 368, L. R. A. 1916D, 86.

If an employer knows, or ought to know that an instrumentality of his business may cause injury to his employes, or that one of his employes is likely to cause injury to a fellow employe, and injury results in consequence of the condition of the instrumentality, or of the character or habits of the employe, the injury is a risk arising out of the conditions in which the employment is carried on, and hence arises out of the employment. The cases immediately in point are not numerous. An injury to an employe by a fellow employe when drunk, and known by the employer to be liable to get in this condition, and at such times to be dangerous, was held to arise out of the employment. McNicols' Case, 215 Mass. 497, 102 N. E. 697, L. R. A. 1916A, 306. An injury from the bite of a cat habitually kept in the place of employment was held to arise out of the employment. Rowland v. Wright, 1 K. B. 967.

An injury to an employe, caused by the throwing in sport and mischief of pins by a fellow workman, a practice known to the employer and not stopped, was held to be a risk of the employment as it was conducted. State ex rel. Johnson Sash & Door Co v. District Court, 140 Minn. 75, 167 N. W. 283, L. R. A. 1918E, 502. The sport and mischief of one employe, resulting in injury to a fellow employe, cannot be held to be a risk of the employment, unless the employer has knowledge or the means of knowledge of the practice, and has failed to stop it.

The watchman was required to perform his duties under the existing conditions of the employment, which were the presence of a boy and a pistol where the watchman was obliged to work, the knowledge of the boy that the pistol was in plain view and at hand, and the knowledge of the employer that the boy was liable to handle the pistol and to cause it to go off. The placing of the pistol out of the sight of the curious boy was within the power of the employer. By his failure to exercise such control, the pistol in the place in which Cote found it became one of the conditions with which the watchman was required to work, and while pursuing his work he was hit by a bullet from the pistol while in the hands of this boy. The injury was a consequence of this condition, and hence was a risk of the employment, and arose out of it.

The superior court is advised that the injury to the deceased arose out of his employment, and is directed to remand the case to the commissioner, with instruction to make an award in favor of the plaintiff in accordance with this opinion. Costs in this court will be taxed in favor of plaintiff.

The other Judges concurred.

CITY OF CHICAGO v. INDUSTRIAL COMMISSION ET AL.

(No. 12766.)

(Supreme Court of Illinois. Dec. 17, 1919. Rehearing Denied Feb. 4,

1920.)

125 Northeastern Reporter, 705.

1. MASTER AND SERVANT-WORKMEN'S COMPENSATION; POLICEMAN AN "OFFICIAL," AND NOT AN EMPLOYEE, OF CITY.

Police patrolman of the city of Chicago, killed by a charged electric post, bent over the sidewalk and obstructing it, which he was endeavoring to straighten, in view of the incorporation act of the city, held an "official," not an employee, of the city, excluded from the provisions of Workmen's Compensation Act by section 5.

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

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

Error to Circuit Court, Cook County; Oscar M. Torrison, Judge. Proceeding by Gilbert H. and Bridget Coyne, under the Workmen's Compensation Act, for compensation for death of their son, Gilbert F. Coyne, the employee, opposed by the City of Chicago, the employer. Compensation was awarded, the award reversed by the Industrial Commission, the decision of the commission reversed by the circuit court on certiorari, the commission making an award in accordance with the directions of the court, and the city brought certiorari, resulting in confirmation of award; the circuit court certifying the cause to the Supreme Court. Judgment of the circuit court reversed, and cause remanded, with directions to enter an order in conformity with the opinion.

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

Finn & Miller, of Chicago, and Munson T. Case, of Los Angeles, Cal. (O. A. Arnston, of Chicago, of counsel), for defendants in error.

CARTWRIGHT, J. Gilbert H. Coyne and Bridget Coyne made application under the Workmen's Compensation Act to the Industrial Commission for compensation for the death of their son, Gilbert F. Coyne, a policeman of the city of Chicago. The arbitrator awarded compensation in the sum of $3,500, payable in weekly installments of $12 each. Upon a review of the award the Industrial Commission made a finding that the deceased was an officer of the city, and not an employe, and therefore not within the provisions of the Compensation Act, and reversed the decision of the arbitrator. The applicants sued out of the circuit court of Cook county a writ of certiorari to bring the record of the Industrial Commission to that court, and the court reversed the decision of the Industrial Commission, and remanded the application to the commission, with directions to enter an award in accordance with the finding of the court that the deceased was an employe and not an official of the city. The Industrial Commission made an award in accordance with the directions, and the city then sued out a writ of certiorari from the circuit court, and upon a hearing the award was confirmed and judgment rendered for $3,500. The court certified that the cause was one proper to be reviewed by this court.

On October 4, 1916, Gilbert F. Coyne was, and for more than nine

years had been a regularly appointed and sworn police patrolman of the city of Chicago and on that date was assigned to duty as such a policeman at the Atlas Garage because of a strike at that place. His assignment was from 4 o'clock until midnight, and, having been relieved by another policeman 15 minutes before 12 o'clock, he left the garage to "ring out" and report at the station that he had been relieved. Five minutes later he was found dead at Superior and Fairbanks streets, two blocks from the garage, lying alongside a charged electric lamp post which had been bent over the sidewalk at an angle of 45 degrees by an automobile backing against it. His hands and feet were severely charred and burned, and it was evident that he had been killed by contact with the lamp post, which was an obstruction to the sidewalk, and which he probably had attempted to set up. The city was engaged in building, maintaining, and repairing bridges and other structures, constructive work, electrical work, operation of warehouses and other houses, tunnel building and mining, in which explosive material was used in dangerous quantities, and had never given notice of an election to accept or reject provisions of the Workmen's Compensation Act. The deceased had never given notice of an election to reject the provisions of the act.

Section 5 of the Workmen's Compensation Act (Hurd's Rev. St. 1917, c. 48, § 130) so far as it applies to this case, provides:

"The term 'employe,' as used in this act, shall be construed to mean: First-Every person in the service of the state, county, city, town, township, incorporated village or school district, body politic or municipal corporations therein, under appointment, or contract of hire, express or implied, oral or written, except any official of the state, or of any county, city or town, township, incorporated village, school district, body politic or municipal corporation therein."

The question, therefore, before the Industrial Commission and the circuit court, was whether the deceased was in the service of the city under an appointment as an employe or as an official. If he was an employe, the applicants were entitled to compensation for his death; if he was an official of the city, he was excluded by the express terms of section 5.

[1] It was decided in Stott v. City of Chicago, 205 Ill. 281, 68 N. E. 736, McNeil v. City of Chicago, 212 Ill. 481, 72 N. E. 450, Moon v. Mayor, 214 I11. 40, 73 N. E. 408, and Bullis v. City of Chicago, 235 Ill. 472, 85 N. E. 614, that policemen are not city officers or officials de jure unless the office has a legal existence, which must be created by ordinance. But the question whether a de facto officer is excluded is not herein involved, because the deceased was a police patrolman de jure, regularly appointed and sworn as such. The city, by paragraphs 66 and 68 of section 1 of article 5 of the Incorporation Act (Laws 1871-72, p. 232), had power to regulate the police of the city, and pass and enforce all necessary police ordinances, and to prescribe the duties and powers of a superintendent of police, policemen, and watchmen. By an ordinance in force at and before the accident causing the death of Gilbert F. Coyne, a department of the municipal government was created, known as the department of police, including a general superintendent and patrolmen, and offices were regularly and lawfully created. Various officers, including patrolmen, were to be known and designated as policemen and to constitute the police force of the city, and it was provided that the general superintendent of police should appoint all of the officers and members of the department. Section 12 of article 6 of the Incorporation Act provides that policemen shall be conservators of the peace and authorized to arrest or cause to be arrested, with or without process, all persons who shall break the peace or be found violating any ordinance of the city or village or criminal law of the state. Section 2 of division 6 of the Criminal Code (Hurd's Rev. St. c. 38, § 340) makes it the duty of every policeman or other officer of any incorporated city,

town, or village, having the power of a sheriff or constable, when any criminal offense or breach of the peace is committed or attempted in his presence, forthwith to apprehend the offender and bring him before some justice of the peace, to be dealt with according to law, to suppress all riots and all unlawful assemblies, and to keep the peace, and without delay to serve and execute all warrants, writs, precepts, or other process to him lawfully directed. These are all duties which can only be performed by officers, and they fix the status of a policeman as an official of the city or village in which he is appointed and sworn to perform such duties. Gilbert F. Coyne was an official of the city of Chicago, and by the terms of sections 5 of the Workmen's Compensation Act was excluded from its provisions.

[2] A rule promulgated by the chief of police was offered in evidence which required policemen to observe everything on the streets or sidewalks or anything else likely to prove dangerous or inconvenient to the public, and, if possible, to remove such things without delay, and a failure to promptly report to their commanding officer any dangerous condition of the sidewalks or streets on their respective posts was to be deemed a neglect of duty. The evidence justified a conclusion that the deceased was acting under that rule and attempting to restore the lamp post to its position or to remove it as a dangerous obstruction: but whether the rule had any validity, or the duties imposed by it came within the scope of official duties, the exclusion of officers of a city from the Compensation Act is complete, and based solely on their official relation to the city. The act is a humane law of a remedial nature, and whereever construction is permissible its language should be liberally construed; but it is for the General Assembly to say who shall be included within the provisions of the act, and the courts are not authorized to bring within the scope of the act persons who are excluded by its express terms. The question what classes of persons shall be entitled to the benefits of the act is legislative, and if it should be deemed wise to include officers when performing duties beyond the scope of the usual duties of an officer, such a provision is for the General Assembly, and not for the courts. The finding of the Industrial Commission that Gilbert F. Coyne was an official of the city, and not an employe, was correct.

There was a further question arising under the exclusion from the provisions of the Workmen's compensation Act of any employe for whose accidental injury or death arising out of and in the course of his employment a pension is payable; but that question will not be noticed, because of the necessary conclusion that Gilbert F. Coyne was an official of the city, and not an employe.

The judgment of the circuit court is reversed, and the cause remanded, with directions to enter an order in conformity with this opinion. Reversed and remanded, with directions.

GRAND TRUNK WESTERN RY. CO. v. INDUSTRIAL COMMISSION. ET AL. (No. 12888.)

(Supreme Court of Illinois. Dec. 17, 1919. Rehearing denied Feb. 4, 1920.)

125 Northeastern Reporter 748

2. MASTER AND SERVANT-FINDING OF INDUSTRIAL COMMISSION UNDER WORKMEN'S COMPENSATION CONCLUSIVE.

ACT

A finding of the Industrial Commission supported by evidence will

not be disturbed by the Supreme Court.

(For other cases, see Master and Servant, Dec. Dig. § 418[6].)

10. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT; REVIEWING COURT NOT AUTHORIZED TO ORDER EXECUTION ON AWARD.

On certiorari to review an award of the Industrial Commission, the circuit court has no authority to order execution on the award confirmed. (For other cases, see Master and Servant, Dec. Dig. § 417 [9].) Duncan, J., dissenting.

Error to Circuit Court, Cook County; Oscar M. Torrison, Judge. Claim by Marie Hample and others under the Workmen's Compensation Act for compensation for the death of Anthony Hample against the Grand Trunk Westeren Railway Company, the employer. An award of the Industrial Commission in favor of claimants was confirmed by the circuit court on certiorari, and the employer brings error. Modified and affirmed.

Kretzinger, Kretzinger & Smith, of Chicago (L. L. Smith, of Chicago, of counsel), for plaintiff in error.

John L. Hopkins and A. G. Abbott, both of Chicago, for defendants in error.

THOMPSON, J. The writ of error is prosecuted to review the judgment of the circuit court of Cook county confirming the decision of the Industrial Commission awarding compensation for the death of Anthony Hample, the circuit court having certified that the cause is one proper to be reviewed by this court.

The errors specified are based upon the contention that the liability, if any, of plaintiff in error for the death of Anthony Hample is defined and limited exclusively by the provisions of the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. §§ 8657-8665]), and that the Illinois Workmen's Compensation Act as amended and in force July 1, 1917, is unconstitutional in so far as it applies automatically and without election to all employers and their employes engaged in the extrahazardous business of carriage by land (Laws of 1917, p. 507). The first point assumes that the deceased was employed in interstate commerce at the time he received the fatal injuries. He was employed as a watchman and train rider, charged with the duty of guarding the property of plaintiff in error in its railroad yards at Hayford, Ill., and with the duty of riding its trains to guard merchandise carried by it. The commission found that he was on duty at the time and at a place not outside of the limits prescribed for the performance of his duties; that he was not engaged in interstate commerce; and that the injury received by him and resulting in his death was an accidental injury arising out of and in the course of his employment.

The deceased was found dead about 4 o'clock in the morning of August 18, 1917. The body was lying four or five feet off the eastbound main track of plaintiff in error and a considerable distance south of the Belt Line tracks, which crossed the tracks of plaintiff in error approximately at right angles. The body was lying on its back, with the head away from the track and with the arms stretched above the head. His gun, fully loaded, was lying on the ground a few inches from his right hand, and his flashlight was in his coat pocket. There was a bullet wound through his chest, which caused a fatal hemorrhage. There was another bullet wound which passed through the arm and body at the level of the sixth rib. Both bullets took a downward course. There was no other marks, scratches, or abrasions on the body. There were no eyewitnesses to the shooting of deceased, and just what he was doing at the time he was shot can be determined only by the facts and circumstances leading up to the time when he was last seen alive. Deceased had no regular hours of employment, but his usual hours were from 6 o'clock p. m. to 6 o'clock a. m. Until about 11:30 o'clock p. m. his duties were to watch and to guard the property of