and this court has allowed a writ of error to | al Com., 296 Ill. 408, 129 N. E. 779; Schweiss review the judgment of the circuit court. v. Industrial Com., 292 Ill. 90, 126 N. E. 566), but the provisions of the Compensation Act cannot be extended to cover injuries which do not occur in the course of or arise out of the employment. The accident must be one resulting from a risk reasonably incidental to the employment; that is, a risk which belongs to or is connected with what a workman has to do in fulfilling his contract of service. Where an employee engaged in a voluntary act not accepted by or known to his employer and outside the duties for which he is employed is injured, it cannot be said that his injury arises out of his employment. Where he chooses to go to a dangerous place where his employment does not necessarily carry him, and where he incurs a danger of his own choosing and one outside of any reasonable exercise of his employment, his act is not an incident to his employment. United Disposal Co. v. Industrial Com., 291 Ill. 480, 126 N. E. 183; Mueller Construction Co. v. Industrial Board, 283 Ill. 148, 118 N. E. 1028, Ann. Cas. 1918E, 808; Northern Illinois Traction Co. v. Industrial Board, 279 Ill. 565, 117 N. E. 95; Boorde v. Industrial Com. (No. 15,405; Ill.) 141 N. E. 399. In Weis Paper Mill Co. v. Industrial Com., 293 Ill. 284, 127 N. E. 732, an employee whose duty it was to pitch straw from a stack to [1, 2] The Workmen's Compensation Act (Hurd's Rev. St. 1921, c. 48, §§ 126-1521) provides a new method of procedure for obtaining redress for personal injuries, but it does not change the rules of evidence nor the burden of proof. The rules respecting the admission of evidence and the burden of proof are the same as prevail in common-law actions for personal injury. Chicago Daily News Co. v. Industrial Com., 306 Ill. 212, 137 N. E. 797. Before a claimant can recover compensation, he must prove by a preponderance of competent evidence that the injury arose out of and in the course of the employment. Liability under the Compensation Act cannot rest upon imagination, speculation, or conjecture-upon a choice between two views equally compatible with the evidence-but must be based upon facts established by a preponderance of the evidence. Camp Spring Mill Co. v. Industrial Com., 302 III. 136, 134 N. E. 30; Savoy Hotel Co. v. Industrial Board, 279 Ill. 329, 116 N. E. 712. In Peterson & Co. v. Industrial Board, 281 Ill. 326, 117 N. E. 1033, an aged employee was found wandering about the factory about half an hour after work had ended for the day. He was in a dazed condition, was unable to speak, and was found to have a broken collar bone. He lingered in bed in a semi-wagons that were conveying it to the mill, conscious condition for about two weeks and then died. Compensation was denied on the ground that there was no proof that his death was the result of an industrial accident arising out of his employment. In Wisconsin Steel Co. v. Industrial Com., 288 Ill. 206, 123 N. E. 295, a blast-furnace worker who was employed on the night shift in a plant near the Calumet river disappeared from the plant about midnight and two days later his body was found in the river about 200 feet from the place of his employment. There was no proof, direct or circumstantial, to show why he went to the river or whether he went there in fulfilling any duty of his employment or in doing any thing incidental to his employment. It was held that it was as reasonable to infer from the evidence that he went to the river as a voluntary act outside the duties of his employment, without the knowledge of his employer, and was drowned, as it was to infer that he was acting in the line of the duties of his employment or engaged in something incidental to it, and compensation was accordingly denied. during a period of idleness lay down in the shade of a box car standing on a side track. While he was lying there a switch engine moved the car so that it ran over his legs and crushed them. After reviewing many authorities, this court held that the injury did not arise out of the employment. In Mix Dairy Co. v. Industrial Com., 308 Ill. 549, 139 N. E. 926, the driver of a delivery wagon was found dead in an areaway between two buildings. He had been shot, and it was clear that the injury received by him occurred in the course of his employment. It was held, however, that there was no evidence to show any connection between the employment and the injury and that there was a total failure of proof to establish that the injury arose out of the employment. [5] There were no eyewitnesses to the accident which resulted in Lannoy's death, and so there is no explanation of his falling into the shaft. The undisputed evidence is that the gates were closed a few minutes before Lannoy arrived on the premises of his employer. It was not a part of his duty to open the gates, and, furthermore, he had no au [3, 4] To warrant recovery under the Com-thority to open them. He could not possibly pensation Act, it is not necessary to prove that the employee was at the time of the accident actually engaged in his employment, for frequently he is entitled to recover where he receives injuries on the premises of the employer while he is going to or returning perform any service for his employer by opening the gates when he was there alone. He could not let himself into the mine, and he had no duties to perform until the time came for him to be lowered to his work. Why he opened the gates and how he hap (141 N.E.) known. It is an unfortunate, unexplained law to be made whether the instrument in accident, and, regrettable as it is, it is impossible to say from the evidence in the record that it arose out of his employment. The judgment of the circuit court is affirmed. Judgment affirmed. (310 Ill. 31) POND et al. v. HOLLETT. (No. 15483.) I. Wills 163(2)-Rule as to creation of Confidential relationship to testatrix did not in itself create any presumption of undue influence, but such relation, to create such a presumption, must have been used to procure the making of a will in favor of certain parties and must have destroyed the freedom of testatrix's will and purpose. 2. Wills 163(8)-Provision for compensation to attorney if retained did not render him a beneficiary so as to raise presumption of undue influence. Provision of will that should the executor, an attorney, act as such for the executor.or trustee, he should receive such additional compensation as might be just and equitable, did not render the attorney a beneficiary so as to raise a legal presumption of undue influence. question was the last will and testament of Mrs. Pond and that the same should be set aside, and the sole and only charge made to invalidate the will was the alleged exercise of undue influence by Hollett, who was appointed executor and trustee. A guardian ad litem was appointed for the minor and filed a formal answer. Hollett, executor, answered denying the exercise of undue influence, and the issue was submitted to a jury. The verdict was that the instrument was not the last will and testament of Mrs. Pond, and a decree was entered setting it aside, from which the executor appealed. The verdict, which was reached and returned under misinformation by the court as to the law, had no basis in the evidence and the decree was contrary to the law and evidence. The bill made no charge of a want of testamentary capacity, and it was stipulated that no claim of that kind was made, and that the only relation which the mental condition of Mrs. Pond had to the issue was her susceptibility to influence by the executor on account of her general men tal condition. The following facts were proved and there was no evidence to the contrary: Walter M. Pond, husband of Sarah A. Pond, dropped dead in a hotel in Italy on October 6, 1912, and she was deeply affected by his tragic death in a foreign land, where she was a stranger and did not know the language. He Appeal from Circuit Court, Cook County; left her by his will all his property, which Ira Ryner, Judge. Bill by Walter E. Pond and another against Rhoderick P. Hollett, executor of the will of Sarah A. Pond, deceased. Decree for complainants, and the defendant appeals. Reversed and remanded. L. E. Sauter, of Chicago, for appellant. McCormick, Kirkland, Patterson & Fleming and Harris F. Williams, all of Chicago (Weymouth Kirkland and Jay Stough, both of Chicago, of counsel), for appellees. David R. Clarke, of Chicago, guardian ad litem. CARTWRIGHT, J. Sarah A. Pond died on July 11, 1919, leaving a last will and testament executed on November 22, 1917, which was admitted to probate in the probate court of Cook county on September 15, 1919. She left the appellees, Walter E. Pond and Lillie P. Holmes, her son and daughter, her only heirs at law, and they filed their bill in this case in the circuit court of Cook county on September 14, 1920, against the appellant, Rhoderick P. Hollett, executor of the will, the Wesley Memorial Hospital, Mildred L. Holmes King, the daughter of Lillie P. Holmes, and Barbra L. King, a minor child of Mrs. King, the only lineal descendants of the testatrix. The bill prayed for an issue of was a considerable estate. She was wholly unfamiliar with business and employed Ed. ward G. Henkel, who was a member of the same firm of attorneys as Rhoderick P. Hollett and who attended to the probate work of the firm, to close up the estate. The estate of Pond was settled and the administration closed, and shortly thereafter, in January or February, 1914, she applied to Henkel to draft her will. Hollett was either on a trip to Japan or away from the office sick and had nothing whatever to do with that will and had no knowledge of it until long afterward. He was and continued to be the attorney and business agent of Mrs. Pond in the management of her property, loaning money and making investments, and a confidential relation existed between them which continued until her death. The will appointed the complainants, Lillie P. Holmes and Walter E. Pond, and the defendant, Hollett, executors and trustees, and directed that the income from the estate should be divided equally between Lillie P. Holmes and Walter E. Pond. There is not the slightest reason for saying that the will was not the independent product of Mrs. Pond and did not express her intention, uninfluenced by anybody. She took the will and what became of it is unknown, but its last appearance was when For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 1 "Should said Rhoderick P. Hollett act as attorney or counselor for said executor or trustee, I desire that he receive such additional compensation for his services as such attorney or counselor as may be just and equitable.” Based on this provision of the will the court gave a number of instructions stating as a matter of law that Hollett was a ben eficiary under the will. Here is one of them: "The court instructs the jury that Rhoderick P. Hollett received a special and substantial benefit from the will in question and is a bene-, Rhoderick P. Hollett occupied a fiduciary and confidential relation towards Sarah A. Pond in which relation the said Rhoderick P. Hollett was the dominant party and Sarah A. Pond, the dependent party." she took it to the office of the firm of which Hollett was a member and asked for him. She went into his room, and in two or three minutes his stenographer, Dorian M. Solon, was called in. Mrs. Pond had the old will with her and a memorandum on a piece of paper, and Hollett said that she wanted to make her will. She said that she wanted to leave a bequest to the Wesley Memorial Hospital in memory of her husband but did not know the amount; that it was to endow either a room or a bed, and she would find out how much each would cost and let the stenographer know. Referring to theficiary thereunder and further that the said paper memorandum, she said she wanted Hollett appointed executor and trustee and the income to be divided, one-third to Mrs. Holmes and two-thirds to Walter E. Pond, and she gave reasons which need not be repeated here but which were natural and persuasive in their nature. She gave the old will to the stenographer, who wrote a will leaving the amount to the Wesley Memorial Hospital blank, and she had no directions whatever except the old will and the directions of Mrs. Pond, and the amount of $5,000 for the hospital was afterward inserted. A few days after her visit when she gave directions to the stenographer she came back, on November 17, 1917, read the will in the outer office, said that was what she wanted, and executed it. Five days afterward she returned to the office with the second will and said that she was dissatisfied with it; that she had thought it over and decided that an unequal division of income would make ill feeling and therefore she wanted to change it; that she had telephoned Hollett the night before and asked if the stenographer would rewrite the will. Hollett was not present and there was no one in the office except Miss Solon. The will having been prepared, Mrs. Pond requested Miss Solon to call witnesses, which she did, and the will was executed and is the will set aside by Counsel for appellees say that Hollett was the decree. There was not a word of evi- beneficiary under the will in five different dence that Hollett had anything to do with particulars: (1) The fact that he was executhe preparation of either will, that the ex- tor and trustee would give him rank, standecutrix could be easily influenced by any-ing, and prestige and make it easier for him body, or that she was influenced by him. There was evidence tending to show that while she was rich she was close in money matters and nervous sometimes; that there was such a general decline as is common in persons of her advanced age; and that she grieved very often for the death of her husband and would burst into tears at the mention of his death by herself or others. The evidence was that the relations between her and her husband had been most affectionate, and her grief, even if unusual, had no tendency to show that she was subject to the influence of Hollett or any one else. The only ground upon which it was alleged in the bill or claimed at the trial, or is now claimed, that the will was void, is that it [1, 2] In another instruction the court told the jury that the confidential relationship was undisputed and that Hollett was a beneficiary under the will. The confidential relationship was not disputed, but that, alone, did not raise or create any presumption of undue influence. The relation to create such a presumption must be used for the purpose of procuring the making of a will in favor of certain parties and be such as to destroy the freedom of the testator's will and purpose. Chaney v. Baker, 304 Ill. 362, 136 N. E. 804; Gregory v. Richey, 307 Ill. 219, 138 N. E. 669. Hollett was not a beneficiary by virtue of that provision of the will and did not profit by it in any respect. Compher v. Browning, 219 Ill. 429, 76 N. E. 678, 109 Am. St. Rep. 346; Williams v. Ragland, 307 Ill. 386, 138 N. E. 599. To say that one becomes a beneficiary by being paid what is fair and equitable for services is utterly groundless. A dollar's worth of service for a dollar neither renders the one who performs the service nor the one for whom it is performed the beneficiary of the other. a to get credit; (2) that he would be entitled to the statutory fee as executor; (3) that he would be entitled to compensation as a trustee; (4) that under the provision he might be attorney for the executor and receive fees as such, and the law does not allow fees for such services unless specifically provided for in the will; (5) the same reason as the fourth repeated. It is admitted that the second and third specifications are baseless, because the laws gives the fees and compensation. The first would establish a rule that no testator can select as executor or trustee any one sustaining a confidential relation to him who is concerned in any way in the preparation of his will, because he would thereby confer upon him the benefit of rank and (141 N.E.) proved such a doctrine, and the universal rule is that the benefit must be direct and not merely consequential. It could not consist of rank or standing in the community or in business relations generally. The fourth reason, repeated in the fifth, has already been considered, and the will did not make Hollett a beneficiary either in law or fact. ing the motion for a new trial and in entering a decree. The decree is reversed, and the cause remanded, Reversed and remanded. (309 111. 621) ST. LOUIS, S. & P. R. R. v. COMMERCE Counsel for appellees seek to sustain their position that Hollett received a substantial benefit raising a legal presumption of undue influence, but none of the cases cited sustain that position. In Yess v. Yess, 255 Ill. 414, 99 N. E. 687, the executrix was 83 years old, and the execution of the will was procured. by her son, Joseph Yess, who was given a larger part of the estate and the children of other sons were practically disinherited. In Donnan v. Donnan, 256 Ill. 244, 99 N. E. 931, there was inequality in the distribution of the property and the will was procured by the beneficiary. In Gum v. Reep, 275 Ill. 503, 114 N. E. 271, the will was drawn by a son who was appointed executor and trustee and was a devisee under the will. In Snyder v. Steele, 287 Ill. 159, 122 N. E. 520, the person who drew the will profited by the confidential relation to the extent of a legacy of $5,000. No case has been found which tends in any degree to sustain the argument. If there had been any ground for finding that Hollett was a beneficiary under the will, there was an entire want of evidence that he inspired, advised or caused the insertion of the provision that he should receive fair compensation if he acted as attorney. The same identical provision was contained in the first will, executed when he was either in Japan or sick at home and when the will was written at the dictation of Mrs. Pond by Henkel, and Hollett did not even know of it until long afterward. The same provision was repeated in the second will, and at the execution of each will Mrs. Pond had a fixed intention to provide that Hollett should be paid, if he rendered services as an attorney, what the services actually were worth. The selection by a testator of one with whom he has had business relations and in whom he has trust and confidence is the thing to be expected in the natural working of a normal and rational mind, and the selection of Hollett by Mrs. Pond was not unnatural in any way. She lived 20 months after the will was executed and spent two intervening winters in California and the summer at Atlantic City, as she had been accustomed to do before and where she was free from any influence of Hollett. : Railroads 91(4)-Switch track crossing railroad held "public track," within jurisdiction of Commerce Commission. A switch track built across an electric rail way line by a sand and gravel company to afford necessary connection with steam railroads held a "public track," and therefore the Commerce Commission, under Public Utilities Act, §§ 45, 46, had jurisdiction of the question arising over the removal of the track by the electric railway company, though the parties may have had a contract. [Ed. Note. For other definitions, see Words and Phrases, Second Series, Public Track.] 2. Railroads 91 (4)-Commerce Commission's order to replace switch track crossing railroad held not so unreasonable as to require reversal. Where the only pleading filed by appellant electric railway company in proceeding before the Commerce Commission to determine appellant's right to remove appellee's switch track crossing the railway was its motion to dismiss on the ground of want of jurisdiction, the acts of the Commission ordering the track replaced, it appearing that the track which connected with steam railroads was necessary to appellee's business, held not so unreasonable as to require reversal, notwithstanding the commission acted upon appellee's amended peto present its views concerning such amended tition without giving ample time to appellant petition. Appeal from Circuit Court, Logan County; Frank Lindley, Judge. Proceedings before the Commerce Commission, on the relation of the Lincoln Sand & Gravel Company and others, to compel the St. Louis, Springfield & Peoria Railroad to replace a switch track crossing the railroad. An order requiring the restoration of the crossing was affirmed by the circuit court, and railroad company appeals. Judgment affirmed. James A. Knowlton, of Peoria, for appellant. George B. Gillespie, of Springfield (George M. Gillespie and Thomas E. Gillespie, both of Springfield, of counsel), for appellees. The bill was unsupported by any evidence fairly tending to prove the charge made, and the court érred in not directing a verdict when moved to give such direction at the STONE, J. This is an appeal from a judgclose of the evidence, and erred in overrul- ment of the circuit court of Logan county For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes affirming the order of the Commerce Com-, authorize and require additional protection mission pertaining to the right of the appel- for the crossing. That proceeding appears lant traction company to remove from its not to have been disposed of, but, so far as track and right of way in the city of Lincoln the record shows, is still pending before the a switch track crossing its railroad and built Commerce Commission. On January 16, by the appellee the Lincoln Sand & Gravel 1922, the traction company removed the Company. The gravel company is a corpo- crossing over its right of way and refused to ration producing and selling on the market replace the same, and the gravel company sand and gravel from its plant located south filled the proceedings involved in this case of Lincoln. Appellant has its electric rail- before the Commerce Commission to compel way line extending north and south through the replacing of the tracks. This proceeding the city of Lincoln, adjacent to the plant of was filed on February 10, 1922. The petition the gravel company. Appellant's line lies avers that the gravel company constructed a parallel with the road of appellee the Chi- railroad track extending from its pit to the cago & Alton Railroad Company, while a connection of the tracks of the Chicago & Albranch line of the Illinois Central Railroad ton and Illinois Central Railroads; sets out Company crosses appellant's road and the the contract between it and appellant, the Chicago & Alton Railroad in the southerly installation of its track across the tracks of portion of the city of Lincoln, at approxi- appellant, and the removal thereof without mately right angles thereto. The gravel the consent of the gravel company or the company in 1907, in order to obtain connec- Commission; that as a result of the removtion by switch track with the Chicago & Al-al of the crossing the gravel company is ton and Illinois Central Railroads, purchas-without means of transporting its products. ed a right of way and constructed a track | The prayer of the petition is that the Comthereon extending in a northerly direction mission enter an order requiring appellant from its plant to a place near the intersec- to reinstall the crossing. Appellant, by its tion of the tracks of the Chicago & Alton counsel, appeared in response to notice and and Illinois Central Railroads, where it con- moved to dismiss the proceeding on the nected with both railroads by wye-tracks. ground that the Commerce Commission had In reaching these steam roads it was neces- no jurisdiction. Subsequent to this motion sary to cross the right of way and track of a hearing was had pertaining to the facts of the traction company. To this end a con- the case, which were disclosed as hereintract was entered into between the gravel above stated. At the close of the hearing company and the traction company by which the proceeding was continued until February it was provided that the gravel company 28 for the purpose of filing briefs on the should give the right to the traction com- question of jurisdiction. On February 27 pany to cross its right of way and tracks counsel for the gravel company served nowherever located in the city of Lincoln, at any time it might see fit, and the traction company agreed to grant to the gravel company the right to maintain and operate a single switch track over the right of way of the traction company at a point 200 feet south of the crossing of the traction company with a street in the city of Lincoln to the original petition, by which it was set known as Kickapoo street. By that contract the gravel company was to furnish all materials, construct the crossing, and thereafter maintain it at its own expense, and that in case the traction company should at any time request additional protective devices for the crossing, the gravel company would at its own expense install the same. It was also stipulated in the contract that in case the gravel company failed or refused to install necessary safety devices requested by the traction company as therein specified, the latter might install such devices and the same would be paid for by the gravel company. This provision applied likewise to other agreements of the contract. tice on the general manager of appellant in Springfield that on the next day it would present a motion for the purpose of making the Chicago & Alton Railroad Company and the Illinois Central Railroad Company parties to the proceeding. Such a motion was filed on February 28 and also an amendment out that the track of the gravel company, by reason of its connection with the Chicago & Alton and Illinois Central Railroads, was a part of said railroads, and that the removal of the crossing constituted a destruction of a part of said steam railroads. It appears that the Chicago & Alton Railroad Company filed an intervening petition setting up substantially the same facts as the amended petition of the gravel company, and that the Illinois Central Railroad Company was made a party defendant and filed an answer admitting all the allegations of the petition. It appears that counsel for appellant was not present at the hearing before the Commission on February 28, and on March 2 a In 1920 a controversy arose between the final order was entered requiring that appelparties to this contract with reference to the lant forthwith restore the crossing in quesprotection of the crossing, and the traction tion. From this order appellant appealed to company filed with the Public Utilities Com- the circuit court of Logan county, where the |