and in connection with said stores it also operated a large seven-story warehouse at Thirty-ninth street and Wentworth avenue. Many of the articles sold in the retail stores were sold from samples, and deliveries thereof were made from the warehouse by means of automobile trucks and horses and wagons. No goods were stored in said warehouse except those belonging to the Hartman Furniture and Carpet Company. On the main floor of this warehouse, in a space about thirty feet square, there was a small repair shop enclosed and separated from the rest of the building, which shop was equipped with various machinery for rebuilding such furniture as became broken or damaged in handling. The warehouse also contained three or four elevators operated by electric motors, and two power-driven pumps and low-pressure boilers were located in the basement. Guards had been placed on certain parts of the machinery for the protection of the men operating the same. Appellant on the day of his injury had nothing to do with the operation of the repair shop or the machinery or any of the elevators connected with the warehouse. His duties were confined solely to the loading of trucks from the platform of said warehouse with furniture taken therefrom and making deliveries thereof. He was receiving a regular salary of $15 a week, and overtime amounting at times to $7 a week. On said date appellant and one other man had loaded furniture from said warehouse upon an automobile truck in charge of a chauffeur, and had gone with the truck from the warehouse to deliver and unload the furniture into the houses of the customers of their employer, the Hartman Furniture and Carpet Company. Their last delivery was made at Hagewisch at about seven o'clock in the evening. When they started home they proceeded to South Chicago and then up Chicago avenue towards the city, having still one or two pieces of furniture on the truck. When they had about reached the intersection of East End avenue with South Chicago avenue the steering gear of the truck

became disarranged and the chauffeur stopped the truck. While endeavoring to ascertain the cause of the trouble appellant and the two persons with him undertook to remove the disabled truck from the street car track to allow a north-bound car to pass, which had come up behind them and stopped. Appellant took hold of one of the front wheels with his hands and the other helper took hold of the other front wheel to guide the truck. The chauffeur, thus assisted, by the use of the power was able to move the truck from the north-bound track over to the southbound track and permit the north-bound car to pass. On account of the roadway at the side of the street being full of holes and several inches lower than the street car tracks it was impossible for the appellant and the other helper to guide the truck by their hands so as to move it except on the paved street car tracks. A south-bound car having come up to that point it became necessary to move the truck back to the north-bound track in order to allow the south-bound car to pass. When the truck had been moved by these operations far enough north so that it was about at the south line of East End avenue, in order to prevent further blocking of the traffic on the street car track the chauffeur undertook to run the truck off the track into East End avenue, where necessary repairs might be made. order to do this the same process was resorted to as before. After the truck had been removed from the north-bound track, except about two or three feet of the rear left-hand corner and possibly one hind wheel, a north-bound car, without any warning or signal, struck the rear of the truck and drove it ahead a distance of about seventy-five feet against a tree, with such force that the chauffeur was thrown through the plate glass windshield and several feet ahead of the truck. Appellant was caught under the truck in such a manner that his right ear was completely torn off, three or four of his ribs broken, a severe gash cut in his scalp, his scalp torn back, his body badly bruised, the sight

In

of his right eye destroyed and the hearing of his right ear totally impaired. He also suffered an impacted fracture of the spine, and by reason of the injuries was permanently and totally disabled.

It appears from the record that prior to appellant's injury his employer had taken no affirmative action to bring itself within the provisions of the Workmen's Compensation act, and that neither appellant nor his employer had taken any action to reject that act. It is conceded that the record shows that appellees at the time of the injury were operating under the Workmen's Compensation act. After the injury appellant's employer paid to him, and he accepted, compensation under said act up to the time of the trial, amounting to the sum of $1148.89, in addition to $200 for surgical and hospital bills.

The contentions of appellant are, that the work in which he was engaged was not extra-hazardous and that he was therefore not bound by the Workmen's Compensation act; that the injury sustained by him did not arise out of and in the course of his employment; that even if appellant and his employer were operating under that act, this suit can be maintained by him under the subrogation provision of section 29 of the act to the amount of the compensation allowed by said act; that section 29 is unconstitutional (1) because the act is broader than its title, and therefore contravenes section 13 of article 4 of the constitution of this State; (2) it is special legislation, in contravention of section 22 of article 4 of the constitution; (3) it gives one class of employees an election to bring an action against a third party tort feasor and denies that right to other employees of the same class; (4) it deprives the immediate employer of all defenses but does not deprive the third party tort feasor of his common law defenses when sued under section 29 by the employer of an injured employee; and (5) it violates section 2 of article 2 of the constitution in that it deprives citizens of property without due process

of law, etc., and for the same reason violates the fourth and fifth amendments of the constitution of the United States.

If the work or employment in which appellant was engaged was not extra-hazardous within the meaning of section 3 of the Workmen's Compensation act that act can have no application in this case, as neither appellant nor his employer has done any act showing an election to be bound thereby. Under the holding of this court in Armour & Co. v. Industrial Board, 275 Ill. 328, appellant's employer, the Hartman Furniture and Carpet Company, in maintaining its warehouse for the storing of its furniture and from which distribution of furniture was made to its customers, was operating a warehouse within the meaning of subdivision 4 of paragraph (b) of section 3 of the Compensation act, and was therefore engaged in one of the hazardous occupations mentioned in section 3. Appellant and his employer having made no election not to be bound by the Compensation act were automatically brought within its provisions and are governed by all of those provisions, provided appellant at the time of his injury was engaged in an employment connected with the operation of said warehouse. The purpose of the warehouse was the storing of furniture, carpets, etc., until they should be sold and delivered. Appellant was engaged, with others, in loading from the platform of said warehouse onto the automobile truck goods that were stored in that warehouse and in going with the truck and unloading the furniture, etc., at the homes of customers. The warehouse could not and would not have served the purpose intended for it without work of the character done by appellant and the other parties with him on the motor truck being done by someone. Such work was a necessary part of maintaining and operating the warehouse, and the work of appellant was therefore related to and connected with the operation of the warehouse. His duties required him to work in and around the warehouse where the goods were stored, and his occupation was a part

of the occupation or enterprise of his employer in the conducting and maintaining of the warehouse. Suburban Ice Co. v. Industrial Board, 274 Ill. 630.

It is argued by the appellant that even if the Hartman. Company, his employer, was engaged in an extra-hazardous occupation and that his work was connected therewith, still it does not appear that the injury arose out of and within the course of his employment, and that for that reason the Workmen's Compensation act has no application to this case. The injury occurred to appellant while he was in the service of his employer although his work for the day had terminated and he had made his last delivery of goods. He was on his return from his last trip of the day, and although his hours of employment for that day had expired, he was at the very moment his injury occurred engaged in work for his employer necessitated by his employment. It has been repeatedly held by this court and by courts of last resort in other jurisdictions in similar cases, that where one is injured while merely going to or returning from his employment the injury is considered to have occurred within the line of the employment. Munn v. Industrial Board, 274 Ill. 70; Decatur Railway Co. v. Industrial Board, 276 id. 472; Pekin Cooperage Co. v. Industrial Board, 277 id. 53; Mann v. Glastonbury Knitting Co. (Conn.) 96 Atl. Rep. 368; Kunze v. Detroit Shade Tree Co. (Mich.) 158 N. W. Rep. 851; Mahowald v. Thompson-Sterrett Co. (Minn.) 158 N. W. Rep. 913; Swanson v. Latham & Crane, (Conn.) 101 Atl. Rep. 492.

Section 6 of the Workmen's Compensation act reads as follows: "No common law or statutory right to recover damages for injury or death sustained by any employee while engaged in the line of his duty as such employee other than the compensation herein provided shall be available to any employee who is covered by the provisions of this act, to anyone wholly or partially dependent upon him, the legal