Both phases of this question have been passed upon by the Supreme Court of Wisconsin under a statute substantially identical with section 5 of the Workmen's Compensation Act of this state. In Foth v. Macomber & Whyte Rope Co., 161 Wis. 549, 154 N. W. 369, the plaintiff was of an age where he could, subject to the requirements of the Child Labor Law, be employed in defendant's factory for some purposes. While it is not expressly so stated, we understand from the statement of the case and from the opinion that he was lawfully employed by defendant, but that at the time of his injury he was engaged at work he was prohibited from being employed to do. He sued defendant for damages in an action at law, and one of the defenses interposed was that he was legally permitted to work for hire under the laws of Wisconsin, and was therefore subject to the provisions of the Workmen's Compensation Act, notwithstanding he was injured while doing work he could not legally be employed or permitted to do. This defense was sustained, and the plaintiff was held not to be entitled to recover in an action at law. In Stetz v. Mayer Boot and Shoe Co., 163 Wis. 151, 156 N. W. 971, the plaintiff was a boy between 14 and 16 years of age. The statute of Wisconsin forbade the employment of children of that age in any factory or workshop, unless there was first obtained from the commissioner of labor or other specified person a written permit authorizing the employment of such child. Plaintiff was employed by defendant without such permit having been obtained, and while so employed received injuries, on account of which he brought a suit in an action at law to recover damages. Defendant contended that the Workmen's Compensation Act applied, and that the suit at law could not be maintained. The court held contrary to defendant's contention, basing its holding on the ground that, no permit for the employment of plaintiff having been obtained, he was not legally permitted to work, and that, his employment being unlawful, he was not within the provisions of the Workmen's Compensation Act. We do not understand that case to overrule or modify the Foth Case. In the Stetz Case the court referred to the Foth Case as having been correctly decided, because in that case the minor was legally employed and permitted to work in the employer's factory, though not to work at the machine by which he was injured, while in the Stetz Case the employment was unlawful for any purpose, because no permit had been obtained as required by law. In this case the plea did not aver that any permit had been obtained authorizing plaintiff's employment for any purpose, and, as we understand the record, the proof shows no such permit was obtained. Without such permit he was no more legally permitted to work in defendant's factory than would be a minor under 14 years of age. In the one case a minor is not legally permitted to work at all, while in the other he is only legally permitted to work upon obtaining the permit required by the Child Labor Law. If plaintiff was not legally permitted to work, he is not embraced within the provisions of the Workmen's Compensation Act and his action to recover damages was properly brought. American Car Co. v. Armentraut, 214 Ill. 509, 73 N. E. 766; Strafford v. Republic Iron Co. 238 Ill. 371, 87 N. E. 358, 20 L. R. A. (N. S.) 876, 128 Am. St. Rep. 129, Beauchamp v. Sturges & Burn Manuf. Co., 250 Ill. 303, 95 N. E. 204. The judgment of the Appellate Court is reversed, and the judgment of the superior court is affirmed. Judgment of Appellate Court reversed. SUPREME COURT OF ILLINOIS. MESSMER INDUSTRIAL BOARD OF ILLINOIS ET AL. (No. 11408)* INJURIES TO SERVANT-WORKMEN'S COMPENSATION ACT -LAW-"EMPLOYEE.” Where a minor between the ages of 14 and 16 years was employed in a bakery without the permit required by law as a condition to the employment of minors between those ages, and was injured while working at a machine which he could not be lawfully employed to operate, such minor is not an "employee" within the Workmen's Compensation Law and no award can be made thereunder. Error to Circuit Court, Coles County; Walter Brewer, Judge. Proceeding by Montie Crist, by William S. Crist, his father and next friend, against the Mattoon Steam Bakery, of which Fred Messmer was owner, proprietor, and manager for compensation for injuries under the Workmen's Compensation Law. The Industrial Board made an award in favor of claimant, and the employer petitioned for certiorari. The writ was quashed, and the employer brings error. Reversed and remanded. Emery Andrews and Raymond G. Real, both of Mattoon, for plaintiff in error. Bryan H. Tivnen, of Mattoon, for defendant in error. CARTER, C. J. Montie Crist, by William S. Crist, his father and next friend, filed with the Industrial Board of Illinois, on November 11, 1915, a petition for compensation under the Workmen's Compensation Law for injuries sustained while employed *Decision rendered, Feb. 20, 1918. 118 N. E. Rep. 993. by the Mattoon Steam Bakery, of which Fred Messmer was the owner, proprietor, and manager. On hearing before the arbitration agent under the statute, an award was made in the applicant's favor. On petition filed by plaintiff in error for rehearing before the Industrial Board, the finding of the arbitration agent was affirmed, and an additional allowance granted. Plaintiff in error thereafter petitioned for a writ of certiorari in the circuit. court of Coles county, and said writ was issued. Thereafter the circuit court quashed said writ and certified that the cause was one proper to be reviewed by this court, and a writ of error was thereupon sued out from this court to review the proceedings below. Montie Crist was injured on May 27, 1915, while working in said Mattoon Steam Bakery, when feeding dough to the dough mixer or molder, by getting his hand crushed between the rollers, so that it was necessary to remove two fingers, leaving the palm somewhat distorted and destroying in a large measure the usefulness of that hand. The boy was 15 years old July 30, 1915. Plaintiff in error, Messmer, testified that he did not employ Crist or sanction his employment in the bakery. The foreman, George Buell, testified that some four months before the accident he had hired the boy and paid him 35 cents for working one night; that he had not hired him or paid him anything at any other time. Crist testified that he had worked in the bakery every night, except three or four, for several months; that he usually went there after 9 o'clock in the evening and stayed until 3 or 4 o'clock in the morning; that he had been only paid once by Buell, the foreman, in money, but that he had at other times been paid by the bakery, through the foreman, giving him bread for his work, apparently about two 10-cent loaves of bread and a dozen and a half of cinnamon rolls a day; that when working he wore a pair of white overalls; that he had been called on the 'phone several times at his home to come to work; that on the night he was injured he did not wear his overalls, because the foreman called to him to "come on, go ahead," before he had time to put them on; that while working at the bakery he swept out, cut bons, wrapped bread, fed the machines, and carried baskets of bread to a freight house and to restaurants. Plaintiff in error raised several questions, among others that the injury did not arise out of and in the course of employment, that the employment was casual, and that Montie Crist was not within the provisions of the Workmen's Compensation Law because at the time of the injury he was a minor between 14 and 15 years of age, who by the statute was prohibited from working at an extrahazardous business, such as feeding the dough to this mixer, and was also prohibited from working in any establishment between the hours of 7 o'clock p. m, and 7 o'clock a. m. Defendant in error was between the ages of 14 and 16 years, and might be legally employed in this establishment, though not to work at the machine by which he was injured; but he could not be legally employed without the permit required by law for minors between the ages of 14 and 16 years. As we understand this record, no such permit was obtained by Crist, or any one acting for him, authorizing his employment in plaintiff in error's bakery for any purpose. This being so, on the facts and law this case comes directly within the reasoning and conclusion reached by this court in Roszek v. Bauerle & Stark Co. (No. 11744) 118 N. E. 991. Under the holding in that case defendant in error is not entitled to recover under the Workmen's Compensation Act. See, also, Hillestad v. Industrial Ins. Com. of Washington, 80 Wash. 426, 141 Pac. 913, Ann. Cas. 1916B, 789, 6 Neg. & Comp. Cas. Ann. 763, and cases cited in note. Therefore it is unnecessary to pass on the other questions raised in the brief. The judgment of the circuit court will be reversed, and the cause remanded for further proceedings in harmony with views herein expressed. Reversed and remanded. SUPREME COURT OF ILLINOIS. BEVERIDGE ILLINOIS FUEL CO. (No. 11692.)* 1. INJURIES TO SERVANT-NECESSARY ALLEGATIONS. In a servant's personal injury action, an allegation that defendant has elected not to come under the Workmen's Compensation Act is a material and necessary allegation, because every employer is presumed to have elected to come under such act. 2. INJURIES TO SERVANT-NEGLIGENCE-PLEADING. A plea of general issue in action by servant for injuries traverses an allegation that the master had elected not to come under the Workmen's Compensation Act. 3. WORKMEN'S COMPENSATION-ACTION-PROOF. To prove that a master has elected not to be bound by the Workmen's Compensation Act, the servant must not only show that the master has so notified the Industrial Board under section 2, but also that plaintiff had received a copy thereof, or a copy had been posted where he was employed. Carter, C. J., dissenting. *Decision rendered, Feb. 20, 1918. Rehearing denied April 4, 1918. 119 N. E. Rep. 46. Error to Appellate Court, Fourth District, on Appeal from the Circuit Court, Randolph County; George A. Crow, Judge. Action by Hector Beveridge against the Illinois Fuel Company. There was a judgment of the Appellate Court, affirming a judgment for plaintiff, and defendant brings certiorari. Reversed and remanded. R. J. Goddard, of Sparta, and H. Clay Horner, of Chester, for plaintiff in error. A. E. Crisler, of Chester, for defendant in error. DUNN, J. The Appellant Court for the Fourth District affirmed a judgment for $7,500 recovered by Hector Beveridge in the circuit court of Randolph county in an action on the case for personal injuries, against the Illinois Fuel Company, and the record has been certified to this court as a return to a writ of certiorari issued on the petition of the Illinois Fuel Company. [1] The declaration in four counts charged the plaintiff's injuries to have been received as the result of the defendant's wilful failure to observe the requirements of the Mining Act in the operation of its mine in which the plaintiff was employed. In each count it was alleged that the defendant had elected not to comply with or be bound by the Workmen's Compensation Act and was not operating under that act. This was a material allegation. The Workmen's Compensation Act of 1913, which was in force when the plaintiff was injured, provides that no common-law or statutory right to recover damages for an injury sustained by an employee while in the line of his duty, other than the compensation provided in the act, shall be available to any employee who is covered by the provisions of the act. It was essential, therefore, to the statement of a cause of action for a negligent injury by an employee against his employer, that it should appear that the employee was not covered by the provisions of the act. A declaration which fails to state a fact whose existence is necessary to entitle the plaintiff to recover does not state a cause of action. Walters v. City of Ottawa, 240 III. 259, 88 N. E. 651. The act further provides that every employer engaged in mining shall be conclusively presumed to have elected to provide and pay compensation according to the provisions of the act unless and until notice in writing of his election to the contrary is filed with the Industrial Board, and unless and until such employer shall either furnish to his employee personally or post at a conspicuous place in the place where the employee is to be employed a copy of such notice of election not to provide and pay compensation according to the provisions of the act. It is unnecessary to allege a fact which the law presumes to exist. The contrary averment must be made, if the fact is to be put in issue. Warner v. Flack, 278 Ill. 303, 116 N. E. 197. [2, 3] No objection was made to the sufficiency of the allegation, but it is insisted that it was not proved. The only plea was |