own duties were those of a driver; that the mule driven on his car had been placed in his charge; that he had not been employed by the coal company to let the deceased drive any part of the time but that they frequently had exchanged in the past and did exchange work on the day the accident happened, when the deceased was fatally injured. Other employees in the coal mine testified substantially to the same effect as to the practice of the deceased and other boys who were trappers changing with the drivers and driving the mules of the coal cars, as they understood without serious objection on the part of the managers of plaintiff in error's mine.

Rollie Wright, the boss driver in the coal mine, under whose direction the deceased was working at the time of his injury, testified that deceased was working as trapper; that he was employed for such work and not as a driver; that he had told him not to drive some time before he got hurt, on an occasion when he was driving for the witness Parsons, and told him he did not want to see him on the tail chain any more (the tail chain being where the driver was when he drove the mule) as he might get hurt; that that was the only time he had seen him driving; that other trappers had tried to drive but that he had always objected to their driving. He admitted that he had stated, in the presence of certain people at the coroner's inquest, after he had testified there as to the accident, that on the day of the accident he went to look up the boy and found that he was driving a coal car; that he let him make the trip without saying anything to him.

J. F. Goalby, superintendent of the mine, testified that at the time of the accident he was mine manager for the company and as such employed the deceased as trapper, instructing him at the time what his duties were and telling him that he was to trap doors and keep away from the mules; that these were the instructions given to all the trappers; that on one occasion the deceased said he wanted

to make more money by having a job as driver; that witness told him if he would get a permit from his parents he would let him "drive extra in the mine north;" that he did not give him this work, however, as deceased told him his parents would not give the permit, because they did not want him to drive.

This is the substance of the testimony with reference to the employment of the deceased.

There can be no question that counsel for plaintiff in error are right in arguing that there is a distinction drawn by the authorities between doing a thing recklessly or negligently which a workman is employed to do and doing a thing outside and unconnected with what he is employed to do, and that if an accident happens in the first class it arises out of and in the course of the employment but not in the latter case. (Elliott on Workmen's Compensation,— 7th ed.-50; Dietzen Co. v. Industrial Board, 279 Ill. 11.) When an employee is injured in an employment different from that which he was originally hired to perform, in order to find whether the employer is liable it is necessary to determine whether or not the element of knowledge or acquiescence or a known custom on the part of the employer exists. If the employer does not know the practice or custom the employee is held to be a volunteer acting outside the scope of his authority, and if the employer does know and acquiesces, the employee is held to be acting within the scope of his authority. (Dietzen Co. v. Industrial Board, supra; Central Garage v. Industrial Com. 286 Ill. 291; Mepham & Co. v. Industrial Com. 289 id. 484; see, also, I Honnold on Workmen's Compensation, sec. 123.) "The scope of a servant's duties is to be defined by what he was employed to perform, and by what, with the knowledge and approval of his master, he actually did perform," and an employee who was performing the same services he was in the habit of performing when he was injured is not to be considered a mere volunteer. (Dixon v. Chiquola

Manf. Co. 86 S. C. 435; 26 Cyc. 1090; 1 Bradbury on Workmen's Compensation,-2d ed.-467.) "The voluntary offer of a willing servant to make himself useful in a matter not covered by any express command, when the proffered service is accepted by his superior although not by an approval expressed in words, cannot be said, as a matter of law, to put the servant outside the limits of his employment." (Miner v. Franklin County Telephone Co. 83 Vt. 311.) A person while employed as a runner of trucker frequently exchanged work with a co-employee in a different line of work in the same room, and this practice was known to and acquiesced in by the employer. The employee was injured while so exchanging work, and it was held that he was not a mere volunteer. Belton Oil Co. v. Duncan, 127 S. W. Rep. (Texas) 884. To the same effect see Henneberry v. Doyle, 5 B. W. C. C. (Ireland) 580; see, also, Corpus Juris, treatise on Compensation, 83.

It is evident from a reading of the testimony in this record that there is a conflict as to whether or not, on the facts, the officers of plaintiff in error acquiesced in the deceased driving a mine car. This was clearly a disputed question of fact. We have repeatedly held that the courts can not consider the weight of the evidence on controverted questions of fact but are bound by the finding of the Industrial Commission. The finding of the commission on the question whether or not plaintiff in error's officers in charge of the work acquiesced in and knew of the practice of the trappers to exchange work with the mule drivers was a question of fact, and the finding of the commission on this point cannot be disturbed by the courts.

The circuit court rightly approved the award of the Industrial Commission, and the judgment of that court will be affirmed. Judgment affirmed.

(No. 12891.-Judgment modified and affirmed.)

THE COMMISSIONERS OF BOONE'S POND MUTUAL DRAINAGE DISTRICT, Defendants in Error, vs. RONALD O'DANIEL et al. Plaintiffs in Error.

Opinion filed February 18, 1920.

I. DRAINAGE effect of striking objections from files. Striking the objections from the files on the hearing of a drainage assessment amounts to a holding that the facts stated in them constitute no legal objection to the confirmation of the assessment.

2. SAME-one land owner cannot object that property of another is misdescribed in notice. The object of the notice required to be published before the hearing of a drainage assessment is to inform the land owners of the amount of the proposed assessment upon all the lands, the amount of the individual's assessment and the time and place of the hearing, and one land owner cannot object that the land of another is misdescribed in the notice.

3. SAME what determines whether one land owner is assessed more than his proportionate share. The question whether one land owner is assessed more than his proportionate amount of a drainage assessment is to be determined by inquiring what proportion his assessment bears to the whole amount assessed on all the lands and not by comparing it with the amount of the assessment of any particular tract.

4. SAME-Court cannot make assessment payable as of a date prior to confirmation. Under section 5 of the act for the assessment of lands, railroads, highways and municipal corporations which have been benefited by a drainage improvement, (Hurd's Stat. 1917, p. 1012,) the first installment of the assessment may be paid, without interest, thirty days after the confirmation, and the court confirming the assessment is not authorized to declare it payable as of a date prior to the confirmation.

WRIT OF ERROR to the County Court of Jackson county; the Hon. W. F. ELLIS, Judge, presiding.

MARTIN & GLENn, (Lawrence A. GLENN, of counsel,) for plaintiffs in error.

R. J. STEPHENS, for defendants in error.

Mr. CHIEF JUSTICE DUNN delivered the opinion of the

court:

Boone's Pond Mutual Drainage District was organized and a system of drainage constructed many years ago. In 1914 a further improvement was constructed, for which an assessment amounting to $15,389.50 was levied. A part of this assessment remained uncollected on account of errors in the spreading of it. In 1917 an act was passed by the legislature to authorize the levying of special assessments upon lands, railroads, public highways and municipal corporations situate within any drainage district so as to provide the funds necessary to pay the cost of construction, for benefits which shall have been conferred by the construction of any work of improvement without special assessments having been legally levied prior thereto, and providing for the issuance of bonds payable out of such special assessments authorized by this act to be levied. (Laws of 1917, p. 429.) On September 13, 1918, the commissioners of Boone's Pond Mutual Drainage District adopted a resolution in accordance with the provisions of section 2 of this act, in which they ascertained and determined that the cost of the improvement last mentioned, with the necessary and reasonable incidental expenses thereof, was $16,928.45, exclusive of interest accrued thereon, and ordered that a special assessment of $20,229.60, which sum included interest at six per cent on the cost of the improvement from a date thirty days after the completion of the work, be levied upon all lands, railroads and public highways within the district. The resolution included an assessment roll, which apportioned the amount of the assessment and indicated the amount of credits allowed on account of payments made on a previous assessment. On September 16, 1918, a petition was filed by the commissioners in the county court of Jackson county for the confirmation of the assessment. October 2 was the date fixed for the hearing, and on that