tional counts, although the facts are not set up in the original declaration with the same particularity that they are in the amended declaration or in the five additional counts filed before the Statute of Limitations had run, and the words inserted by way of amendment in no manner changed the ground on which appellant had originally predicated his cause of action, viz., the failure of the appellee to furnish appellant with a safe place in which to work. The declaration in this respect is different from the declaration in the case of McAndrews v. Chicago, Lake Shore and Eastern Railway Co. 222 Ill. 232, relied on by counsel for appellee, as in the latter case no facts were averred in the original declaration showing the existence of a duty from the defendant to the plaintiff to warn him that it was about to move its cars in the manner which resulted in the injuries to the plaintiff charged in the declaration.

The allegation that appellant, as such oiler, in the discharge of his duty was required to pass through, along, in and about the mills, shops, factories, runways and premises of appellee, we think was sufficient to authorize the admission of proof, on the trial, of the fact that the place of the injury to appellant was one in which he was required to go in the discharge of his duties, the word "require" being often used in the sense of to demand; to direct; to order or to compel. (24 Am. & Eng. Ency. of Law,—2d ed.—— 601.) In this respect this case is clearly distinguishable from Mackey v. Northern Milling Co. 210 Ill. 115, in which the original declaration wholly failed to state what the duties of Mackey were, or any facts from which it appeared that at the time he was injured he was in a place where he was required to go or to be in the discharge of his duties.

For the reasons above given the judgments of the circuit court and of the Appellate Court will be reversed and the cause remanded, with directions to sustain the demurrer to the plea of the Statute of Limitations.

Reversed and remanded, with directions.

Douglas Dietz, Appellee, vs. THE BIG MUDDY COAL AND IRON COMPANY, Appellant.

Opinion filed April 23, 1914–Rehearing denied June 4, 1914.

I. APPEALS AND ERRORS-constitutional questions are involved where the appeal was perfected before publication of opinion deciding such questions. A case is properly brought to the Supreme Court on the ground that it involves constitutional questions, where the appeal was perfected before the publication of an opinion of the Supreme Court in another case deciding the same questions.

2. WORKMEN'S COMPENSATION—an employee need not be under the act in order to cut off employer's common law defenses. It is the status of the employer, and not that of the employee, which determines whether the common law defenses are lost to the employer, and it is not necessary that the employee be under the act in order to cut off the employer's common law defenses.

3. SAME when defenses of assumed risk, fellow-servants and contributory negligence are not available. The defenses of assumed risk, fellow-servants and contributory negligence are not available, under the Workmen's Compensation act of 1911, as to employers who have elected not to pay compensation in accordance with its provisions.

4. SAME-parties are under the act unless they elect not to be. It was the intention of the legislature to make the Workmen's Compensation act applicable to all employers and employees within the enumerated employments and automatically to subject them to the law, without any affirmative action on their part, unless written notice of an election not to be governed by the act be filed with the State Bureau of Labor Statistics.

5. SAME-section 1 of Workmen's Compensation act of 1911 construed. In section 1 of the Workmen's Compensation act of 1911 the phrase, "any employee who has elected to accept the provisions of this act," should be read as “any employee who has not elected to not accept the provisions of this act."

6. STATUTES-rule of construction of involved clauses. In the construction of involved clauses courts may interpolate words and phrases or strike out redundant and unnecessary language to give effect to the general legislative intent as the same appears from a consideration of the whole scope of the act.

7. EVIDENCE-when statement that plaintiff is a poor person is admissible. Upon the trial of a personal injury case it is proper to permit the plaintiff to state that he went to work before he was

well because he was without any means to support his wife and children, in order to explain an apparent inconsistency, brought out by cross-examination, that he did, in fact, go to work at a date prior to the time when he stated that he was able to work.

8. CONSTITUTIONAL LAW-the Workmen's Compensation act of 1911 is not unconstitutional. The Workmen's Compensation act of 1911, being elective, is not unconstitutional. (Deibeikis v. LinkBelt Co. 261 Ill. 454, followed.)

APPEAL from the Circuit Court of Jackson county; the Hon. A. W. LEWIS, Judge, presiding.

DENISON & SPILLER, and JOHN M. HERBERT, (Mastin & SHERLOCK, of counsel,) for appellant.

MARTIN & GLENN, for appellee.

Mr. JUSTICE VICKERS delivered the opinion of the court:

This is an action of case, in which all of the three counts of the declaration charge common law negligence. The first and second counts are in substance the same, but the third or additional count alleges that the injury occurred in a different manner. All of the counts allege that appellant was operating a coal mine in Williamson county on April 21, 1913, and had prior thereto elected not to provide and pay compensation to injured employees under the statute of 1911 known as the Workmen's Compensation act; that appellee was on said date an employee of appellant in the capacity of a blacksmith's helper and was working in and about the mine of appellant; that appellee had accepted all the provisions of the Workmen's Compensation act and was at that time bound thereby. The declaration charges in the first and second counts that appellant negligently ordered appellee to put a bolt through a certain platform which was immediately above a certain chute and by which bolt said chute was to be suspended; that appellant knew, or should have known, that the place where appellee was required to stand in order to obey the said order

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was a dangerous place for the performance of said work; that there was no safe place where the appellee could stand while inserting said bolt, but to carry out the order he was required to stand upon the end of said chute, which was metal, and reach with both hands above his head and stand. upon his toes without any brace to steady or support himself, and that while thus attempting to insert the said bolt, standing upon the slanting metal of the chute, he lost his balance and slipped and fell, causing the injuries complained of. Appellant filed a plea of not guilty, and a trial before a jury resulted in a verdict in favor of appellee for $1500, for which amount the trial court, after overruling a motion. for a new trial, entered judgment. The constitutionality of the Workmen's Compensation act of 1911 being involved, the circuit court of Jackson county allowed an appeal, which has been duly perfected direct to this court.

At the term at which this cause was submitted to the court an opinion was filed in Deibeikis v. Link-Belt Co. 261 Ill. 454, in which the constitutionality of the above act was considered and sustained, but since that opinion had not been published at the time this appeal was perfected the case was properly brought to this court. The questions raised by appellant as to the validity of the act were considered and decided in that case, and it is not necessary to re-state our views.

While appellant has devoted considerable space in its brief to a discussion of the sufficiency of the evidence to sustain the averment in the declaration that appellant had elected not to comply with the Workmen's Compensation act, on the oral argument counsel for appellant conceded that it was not at the time of the alleged injury, and never had been, operating under said act, so that in the disposition of the questions here involved it will be assumed as a fact that appellant had not elected to pay compensation for injuries in accordance with said act.

Appellant contends that if the defense of assumed risk is available to it, the circumstances of the injury complained of are such as to entitle appellant to a directed verdict in its favor, for the reason that, as a matter of law, appellee assumed the risk of injury from slipping upon the inclined metal chute upon which he was standing at the time he fell. Without reference to what view we might take of this question if the Workmen's Compensation act were not involved, we will consider and determine the question in view of that legislation.

Appellant contends that under the proper construction to be given to the Workmen's Compensation act the defenses of assumed risk, fellow-servant and contributory negligence are not affected by the act as to employers who have never elected to pay compensation in accordance with the provisions thereof. Its contention is that those defenses are only lost to such employers as have elected to go under and be governed by the act and afterwards elect not to be governed by said act, and then only as to such employees as had before that time elected to be governed by the provisions of the said act. Appellant contends that there is no method provided in the statute by which the employee can elect to be governed by the act unless the employer has previously exercised his right of election and determined to be governed by the act. This last proposition we regard as a correct interpretation of the act. It was manifestly not the intention of the legislature to put it in the power of the employee to compel the employer to adopt the act without regard to the employer's own wishes in the matter. We find no provision in the act which confers upon the employee the right to elect to be governed by the act in his relations to an employer who has rejected the act. We see no reason why this should be so, although appellee has alleged in his declaration that appellant was not under the act and that he was governed thereby. The latter part of this proposition was simply an averment of a legal impos