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THE

NORTHEASTERN REPORTER

VOLUME 125

(290 Ill. 177)

ments, until the total sum of $830.83 had

PEORIA RY. CO. v. INDUSTRIAL COM- been paid. On March 25, 1918, the commisMISSION et al. (No. 12756.)

(Supreme Court of Illinois. Oct. 27, 1919.
Rehearing Denied Dec. 5, 1919.)

MASTER AND SERVANT 419-PETITION FOR
REVIEW OF ORIGINAL AWARD ΜΑΥ BE
BROUGHT WITHIN 18 MONTHS.

Despite Workmen's Compensation Act, § 9, allowing lump sum settlements, under section 19h, petition for review of an original award for compensation payable in installments can be maintained when filed within 18 months of the original award either before or after an order for commutation to a lump sum has been entered by the Industrial Commission.

Error to Circuit Court, Peoria County; Charles V. Miles, Judge.

sion, acting upon the petition filed by Wade on March 1, 1918, entered an order commuting the balance of the compensation to a lump sum, amounting to $1,227.99. Plaintiff in error did not pay the lump sum awarded, and neither party filed a rejection thereof within the 10 days provided by section 9 of the Workmen's Compensation Act (Hurd's Rev. St. c. 48, § 134). The unpaid lump sum award was not reduced to judgment. Within 18 months from the date of the last payment, plaintiff in error filed its petition in accordance with the provisions of paragraph (h) of section 19 (section 144) of the Workmen's Compensation Act, claiming that the disability of Wade had diminished and ended since the award was made and prayed

Proceedings under the Workmen's Com-that the award might be reviewed and paypensation Act by William W. Wade, opposed ments of compensation ended. On January by the Peoria Railway Company, the em- 9, 1919, the commission sustained the motion ployer. Compensation was awarded, and the filed by Wade on October 8, 1918, to dismiss award affirmed by the Industrial Commis- the petition for review, on the ground that sion, which subsequently commuted the com- neither party had rejected the order for compensation to a lump sum, and the employer, mutation to a lump sum within 10 days after on account of claimed diminution of the dis-such order was entered. Plaintiff in error ability, prayed the award might be reviewed sued out a writ of certiorari from the cirand payments ended; the commission sus-cuit court of Peoria county, and upon a heartaining the employe's motion to dismiss the petition for review, and the employer suing out certiorari from the circuit court, which quashed the writ and certified the cause to the Supreme Court. Judgment of the circuit court reversed, and cause remanded, with directions to remand to the Industrial Commis-original award for compensation payable in

sion.

J. T. Hunter, G. H. Page, and R. J. Kavanagh, all of Peoria, for plaintiff in er

ror.

ing that court quashed the writ for the same reason assigned by the Industrial Commission and certified that the cause is one proper to be reviewed by this court.

The only question involved in this case is whether or not a petition for review of an

installments can be maintained under paragraph (h) of section 19 of the Compensation Act where such petition for review is filed within 18 months of the original award and

Mansfield & Cowan, of Peoria, for defend- after an order for commutation to a lump ant in error.

sum has been entered by the Industrial Commission and not rejected by either party within 10 days.

DUNCAN, J. The Industrial Commission on December 16, 1917, confirmed the award Because of the recognized inability of the of the arbitrator in favor of William Wade, medical profession to forecast with certainty who was injured in the course of his employ- the results of an injury causing partial disment by plaintiff in error, the Peoria Rail- ability, as well as their inability many times way Company, on January 2, 1915. Follow- to determine whether or not the disability is ing that confirmation the plaintiff in error temporary or permanent or to determine the paid the compensation awarded, in install-exact extent of the injury, the lawmaking

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
125 N.E.-1

power of the state has fixed a period of 18 months within which such results may be determined with reasonable certainty. A review of the award or agreement within that period enables the Industrial Commission to determine from the evidence, with some degree of certainty, the true extent of the injury. Defendant in error contends that section 9 of the Compensation Act is to be interpreted so that if the parties under the act have the award commuted to a lump sum where such award is payable in installments, and neither party rejects the lump sum award so made within the time provided by that section (10 days), such award of a lump sum is a final disposition of the claim, and that in such case it must be paid without regard to the question whether or not the injury has recurred, increased, diminished, or ended.

Paragraph (h) of section 19 provides:

mutual advantage of both employer and employé, and. the same rule applied in favor of the employé must be applied in favor of the employer.

The Industrial Commission erred in sustaining the motion to dismiss the petition for review and the circuit court erred in quashing the writ of certiorari. The judg ment of the circuit court is reversed, and the cause remanded, with directions to remand the cause to the Industrial Commission for a hearing on plaintiff in error's petition. Reversed and remanded, with directions.

(290 III. 188)

PEOPLE V. DORAS. (No. 12737.) (Supreme Court of Illinois. Oct. 27, 1919. Rehearing Denied Dec. 4, 1919.)

"An agreement or award under this act, pro- 1. HOMICIDE 351-PAROLE LAW DOES NOT viding for compensation in installments, may at any time within eighteen months after such agreement or award be reviewed by the indus

trial board at the request of either the employer or the employé, on the ground that the diser or the employé, on the ground that the disability of the employé has subsequently recurred, increased, diminished or ended; and on such review, compensation payments may be re-established, increased, diminished or ended."

INCREASE MINIMUM SENTENCE FOR MAN-
SLAUGHTER.

Defendant convicted of manslaughter was

properly sentenced under the Parole Law, which does not operate to increase the minimum sen

tence for the offense fixed by Hurd's Rev. St.

1917, c. 38, § 146, since under its provisions a convict may be discharged without being pa

roled if the Governor consents, or may be paroled after serving the minimum sentence provided by law.

2. HOMICIDE 354-TERM OF PAROLE NOT

PART OF IMPRISONMENT TO EXCEED MINIMUM
SENTENCE.

7981⁄2-SUBMISSION OF

FORM OF VERDICT FOR MANSLAUGHTER.

In a prosecution for homicide, where there. was evidence whereon the jury might reduce the crime from murder to manslaughter, the people had a right to have a form of verdict for manslaughter submitted.

We think the clear meaning of said paragraph is that, wherever the statute provides for the payment of an award by installments, any agreement or award, subject to review under such statute may be reviewed within 18 months from the date of the agreement The term of parole of defendant convicted or award on the ground aforesaid and on of manslaughter cannot be considered part of term of his imprisonment in the penitentiary, the filing of the petition as aforesaid, ei- fixed by Hurd's Rev. St. 1917, c. 38, § 146, to ther before or after such award has been render sentence under the Parole Law erronecommuted to a lump sum agreement. Sec-ous as increasing the minimum sentence for tion 9 of the Compensation Act, allowing manslaughter from a year to 18 months. lump sum settlements, contains no language that forecloses any right of the parties to 3. CRIMINAL LAW have the award of the commission reviewed upon the grounds set forth in paragraph (h) of section 19 of the same act. Section 9 merely intended to give the parties the benefit of cash payments in lump sums instead of carrying the award as an obligation to be paid in continuous installments. The payment of such a lump sum settlement by the employer would not estop the employé to file his petition, under paragraph (h) of section 19, for a recurring and increased injury as therein provided. Wabash Railway Co. v. Industrial Com., 286 Ill. 194, 121 N. E. 569. In the case just cited, there was a lump sum agreement between the parties, and this agreement was approved by the Industrial Commission, and it was held in that case that that was such an agreement as could be reviewed under paragraph (h) of section 19, although the lump sum agreed on had already been paid. Paragraph (h) is for the

4. CRIMINAL LAW 829(1)

REFUSAL OF

REPETITION OF INSTRUCTIONS.
Instructions offered by defendant, fully cov-

ered by other instructions offered by him and
given, though presenting correct propositions,
were properly refused.

5. HOMICIDE

250 - EVIDENCE SUFFICIENT

FOR CONVICTION OF MANSLAUGHTER. Evidence held sufficient to sustain a verdict of guilty of manslaughter.

Dunn, C. J., and Duncan and Cartwright, JJ., dissenting.

Error to Criminal Court, Cook County; M. Henry Guerin, Judge.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(125 N.E.)

Edward Doras was convicted of slaughter, and brings error. Affirmed. Charles E. Erbstein and Charles P. R. Macauley, both of Chicago, for plaintiff in error. Edward J. Brundage, Atty. Gen., Maclay Hoyne, State's Atty., and Edward C. Fitch. both of Chicago (E. E. Wilson and Daniel G. Ramsey, both of Chicago, of counsel), for the People.

was

STONE, J. The plaintiff in error found guilty of manslaughter, under an indictment charging murder, in the criminal court of Cook county.

man-near by, whom he suspected in connection with the unlawful taking of lumber from a milk station then being torn down; that after making this inquiry the three men started out of the saloon, his two companions preceding the plaintiff in error; that as he walked towards the door he saw Swierzbinski standing up against the side of the building: that as plaintiff in error was passing through the door he was violently seized by the arms by some one who pinned his arms behind him; that, as he turned around to see who had seized him, the proprietor of the saloon came from behind the bar and took the revolver of plaintiff in error from its holster and struck plaintiff in error on the head with it; that he struggled to get away, during which time he was struck with billiard cues and other missiles and knocked down; that, believing his life was in danger, he called Patrolman Barry to give him a gun; that he received a kick between the eyes which caused his nose to be broken, and four cuts on the cheek and four across the head, after which he fired a shot to protect himself; that he was in a dazed and semiconscious condition when the patrol wagon arrived. He denied having struck Swierzbinski and denied having fired a shot in the street or in the doorway. He testified that he fired but one shot.

The facts as detailed by the witnesses for the prosecution show that on the evening of September 12, 1918, a number of men, among whom were Anton Kwiatkowski, the deceased, and Joseph Swierzbinski, were in the saloon of John Sczepanek, at 12357 Parnell avenue, West Pullman, in the city of Chicago. About 9:30 o'clock the plaintiff in error, Edward Doras, with two companions, entered the saloon and ordered three bottles of beer. Swierzbinski was standing near the bar, and while there Doras became involved in a quarrel with him and struck him in the face. Doras then pulled his coat back, revealing his star, and stated that he was a detective. Doras and his two companions were ejected from the saloon by way of the front door. They crossed the street to a point opposite There were two revolvers offered in evithe saloon, where they were heard talking. dence. The plaintiff in error identified one Kwiatkowski apparently took no part in the as his and the other as Barry's. The prodifficulty between Doras and Swierzbinski. prietor of the saloon denied hitting the plainSoon thereafter the wife of Kwiatkowski en-tiff in error with a gun. There was no cortered by the rear door of the saloon and call- roboration of plaintiff in error's testimony ed to her husband to go home with her. They in any particular. passed out of the saloon by the side door. Soon thereafter a shot was fired by Doras, whereupon the deceased and his wife, with one Olszewski, turned back. The two men entered the saloon ahead of Mrs. Kwiatkowski, and some one closed the door, preventing her entrance. She testified that, as she was attempting to follow her husband and Olszewski, Doras approached her and attempted to strike her with a revolver but missed her; that he then opened the side door and fired a shot in the direction of Kwiatkowski. Immediately after this shot was fired, Kwiatkowski fell to the saloon floor with a bullet wound in the abdomen, from which he soon after died. After the shooting Doras was held in the saloon until a patrol wagon came, during which time he was beaten with billiard cues and other missiles.

The uncorroborated testimony of the defendant, Edward Doras, is, in substance, that he and the two companions above referred to entered the saloon at the time described and that he ordered beer for himself and companions; that he sought information from the bartender relative to certain people

It is contended by plaintiff in error as grounds for reversal: First, that it was error to sentence him under the Parole Law (IIurd's Rev. St. 1917, c. 38, §§ 498-509b)— that the Parole Law does not apply to the crime of manslaughter and the jury should therefore have fixed the punishment; and, second, that the court erred in giving and refusing instructions.

It is urged in support of plaintiff in error's first contention that, if the Parole Law be held to apply to manslaughter, it would result in increasing the minimum sentence from one year to eighteen months, for the reason that a convict paroled cannot be discharged from parole in less than six months. Section 2 of the Parole Law provides that a convict may be discharged from the penitentiary without parole, by and with the consent of the Governor. It is also provided in section 11 of said act that a convict paroled cannot be discharged from parole without the consent of the Governor. It is also provided by section 7 that no one convicted of crimes referred to in section 2 and sentenced to the penitentiary shall be eligible for parole until a minimum sentence of at least one year has

been served nor until the minimum sentence [ not exercise judicial power.
provided by the law fixing the punishment likewise not in point.
has been served. The provision of the Crimi-
nal Code fixing punishment for manslaughter,
so far as it relates to this question, is as
follows:

"Whoever is guilty of manslaughter shall be imprisoned in the penitentiary for his natural life, or for any number of years." Hurd's Stat. 1917, § 146, p. 984.

This section is in this regard the same as This section is in this regard the same as the act of 1859, which has been held to fix the minimum punishment for manslaughter at one year. Mullen v. People, 31 Ill. 444. [1] It will be seen, from the provisions of

the sections of the Parole Law referred to, that a convict may be discharged from the penitentiary without being paroled, by and

with the advice and consent of the Governor, or he may be paroled after having served the minimum sentence provided by law. The Parole Law places in the department of public welfare the power to determine when, if at all, a person is entitled to parole, subject to the provision that he shall have served the minimum sentence provided by law. The minimum sentence having been served, the law provides that the department of public welfare may parole the convict, or, with the consent of the Governor, discharge him. It will be seen, therefore, that the operation of

the Parole Law in no wise affects the minimum sentence provided by law.

[2] The plaintiff in error contends that the term of parole must be considered a part of the term of imprisonment in the penitentiary fixed by law. Section 146 of the Criminal Code, herein referred to, fixes the punishment for manslaughter at imprisonment in the penitentiary. When on parole the convict cannot be said to be imprisoned in the penitentiary. While he is still under the control of the state during his term of parole, it does not follow that he is serving a term of imprisonment in the penitentiary.

The case of People v. Hartsig, 249 Ill. 348, 94 N. E. 525, cited by the plaintiff in error, is not an authority supporting his contention, as the question here considered was not there involved. In George v. People, 167 Ill. 447, 47 N. E. 741, also cited by plaintiff in error, it was held that in permitting a convict to leave prison on parole the board of pardons did not thereby affect his sentence and did

That case is

The action of the department of public welfare in releasing a convict on parole after he has served the minimum term of imprisonment fixed by law is an act for his benefit and has nothing to do with the minimum term of imprisonment in the penitentiary imposed upon him. The Parole Law does not apply until after the minimum term of imprisonment has been served. It was held in People v. Peters, 246 Ill. 351, 92 N. E. in People v. Peters, 246 Ill. 351, 92 N. E. 889, and in People v. Coleman, 251 Ill. 497, 96 N. E. 239, that the Parole Law then in The Parole Law of 1917 is similar in that reforce applied to the crime of manslaughter. gard to the law considered in the Peters and Coleman Cases. There was no error in the

verdict or sentence.

[3] Plaintiff in error also complains of the giving of a form of verdict for manslaughter on the ground that the crime committed, if a crime at all, was murder, and that there was no evidence of manslaughter. We are satisfied, however, on review of the record, that there was evidence in the record by which the jury might, as they did, reduce the crime from murder to manslaughter. people, therefore, had a right to have such a form of verdict submitted under the evidence in this case.

The

[4] The giving of instructions is complained of, as is the refusal of certain instructions We have tendered by the plaintiff in error. examined the instructions referred to, and are of the opinion the jury were fully and fairly instructed. Those instructions offered by plaintiff in error and refused by the court which presented correct propositions of law were fully covered by other instructions offered by him.

[5] There appears to be no reversible error in the record. There is no reasonable doubt of the guilt of the plaintiff in error in this case, and it is not contended that such doubt exists. In fact, on this record it is evident

that the verdict of the jury was more favorable to him than he had a right to expect.

The judgment of the circuit court will be affirmed.

Judgment affirmed.

DUNN, C. J., and DUNCAN and CARTWRIGHT, JJ., dissenting.

(290 I11. 147)

HOEFELD et al. v. OZELLO.

(125 N.E.)

(No. 12702.) (Supreme Court of Illinois. Oct. 27, 1919. Rehearing Denied Dec. 4, 1919.)

1. LANDLORD AND TENANT 29(2)-LIABILITY ON LEASE PROVIDING FOR TERMINATION. A lessee of premises in Chicago demised for saloon purposes cannot defeat recovery of rent on the ground that the lease which required him to obey the laws was invalid because it contained a provision allowing the lessee to terminate the term if the Sunday closing law should generally be enforced in Chicago, for the lease itself did not contemplate any violation of

law.

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lessors, prior to January 1, 1918, a written notice of his intention to terminate. The lessee shall have the right to terminate this lease. by giving to the lessors, within thirty days after the closing of said saloon by state or city authorities a sixty days' written notice in the event that the state Sunday closing law is generally enforced in Chicago or in the event that the city of Chicago shall discontinue the issuance of all saloon licenses."

The sole question involved in this proceed-. ing is whether the provision or clause with reference to terminating the lease if the state Sunday closing law is enforced in Chicago renders the whole lease void. It is vigorously argued by counsel for plaintiff in error that this clause, if not directly, at least inferentially, contemplates the violation of the state law against opening saloons on Sunday; that this optional provision indicated an intention to conduct a saloon in violation of the law. It was sought in the court below to fortify this position with proof that prior to the leasing plaintiff in error informed defendants in error, or their agent, of his intention to keep his place open on Sunday. There is nothing in the lease that supports this argument. There is no requirement in the lease, expressed or implied, to operate a saloon on Sunday. The only provision referring to the manner of doing business is that which requires plaintiff in error to conduct his business in accordance with the laws of the state and city. Plaintiff in error was not subject to the orders of

defendants in error as to when he should open or when he should close, or what days he should operate, or in any other way as to his method of doing business, except that he should do it in a lawful manner.

CARTER, J. This was an action brought in the municipal court of Chicago by defendants in error against plaintiff in error for counsel for plaintiff in error that the courts [1] We agree fully with the argument of rent under a written lease for premises to will not aid in the enforcement of a contract be used as a restaurant and saloon. The entered into with the intention of carrying judgment was entered by confession and out anything prohibited by law. The authorafterwards opened up on motion of plaintiff ities here and in other jurisdictions are to in error, and he was permitted to defend. the effect that a contract to do an illegal On trial before the court there was found to thing cannot be enforced, such as, for inbe due under said lease, for rent, $1,430, and stance, driving at excessive speed in violation a judgment was entered for that amount. of a municipal ordinance, as was held in On appeal to the Appellate Court the judg- Nash v. Monheimer, 20 Ill. 215; or to lease ment of the trial court was affirmed and a house for immoral purposes, as in Fields the cause has been brought here on petition. Brown, 188 Ill. 111, 58 N. E. 977. But

for certiorari.

The lease contains the following provision: "The lessee hereby covenants and agrees that during the term of the lease the business carried on in said demised premises shall be conducted in accordance with the laws of the state of Illinois and the ordinances of the city of Chicago."

the weight of authority, in this country at least, is to the effect that the mere knowledge of the seller that the buyer intends an unlawful use of the goods sold will not void the contract between the parties. Ashford v. Mace, 103 Ark. 114, 146 S. W. 474, 39 L. R. A. (N. S.) 1104, Ann. Cas. 1914B, 804; Bluthenthal v. McWhorter, 131 Ala. 642, 31 South.

It also contains the following option to 559; Allen v. Keilly, 18 R. I. 197, 30 Atl. 965. terminate the lease by the lessee: In Ashford v. Mace, supra, the court stated:

"The lessee shall have the right to terminate this lease on April 30, 1918, by giving to the

"In 9 Cyc. p. 571, it is said: 'In the United States, while some courts have taken the Eng

For other cases see same topic and KEY-NUMPER in all Key-Numbered Digests and Indexes

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