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The judgment should be reversed, and the complaint dismissed, with costs in all the courts.

HOGAN, CARDOZO, and CRANE, JJ., concur. HISCOCK, C. J., and CHASE and ANDREWS, JJ., dissent.

Judgment reversed, etc.

(290 Ill. 514)

employé brings error. Reversed and remanded, with directions.

William Gillespie, of Chicago, for plaintiff in error.

Ralph F. Potter, of Chicago, for defendants in error.

THOMPSON, J.

September 16, 1915, Patrick Jefferson, plaintiff in error, was employed by J. J. Ellsworth and Harry McNair, partners, riding horses for exhibition purposes. A bucking horse which Jefferson was riding crashed into a fence, and both bones of

ELLSWORTH et al. v. INDUSTRIAL COM- Jefferson's left leg were broken immediately MISSION et al. (No. 12670.)

(Supreme Court of Illinois. Dec. 17, 1919.) 1. MASTER AND SERVANT 405(3)-WORKMEN'S COMPENSATION; ELECTION TO COME UNDER ACT.

Evidence held to justify finding of Industrial Board that a partnership, engaged in the commission business of buying and selling horses, were operating under the Workmen's Compensation Act in force at the time of an accident.

2. MASTER AND SERVANT 417(7)-CONCLUSIVENESS OF DECISION OF FACT BY INDUSTRIAL BOArd.

Where there is evidence justifying finding of the Industrial Board on a question of fact, it is error for the circuit court to set aside the board's decision.

3. MASTER AND SERVANT 419-REVIEW BY INDUSTRIAL BOARD OF LUMP SUM SETTLE

MENT.

above the ankle, and his shoulder was injured. Jefferson made a lump sum settlement of his claim for $925, which included medical and hospital services. October 20, 1916, Jefferson filed his petition with the Industrial Board, in accordance with the provisions of paragraph (h) of section 19 of the Workmen's Compensation Act (Laws 1913, p. 350), claiming that the settlement was made under a misapprehension of certain facts, and that his disability had recurred and increased Since the settlement was made.

On this review the Industrial Board found

that at the time of the accident both parties were operating under and subject to the terms and provisions of the Workmen's Compensation Act; that Jefferson was earning $42 a week; that notice of the accident and claim for compensation had been made within the time prescribed by statute; that as a result of the accident Jefferson was temporarily totally disabled for a period of 28 weeks, and that following said period of tem

Where, at the time the Industrial Board ordered the commutation of the compensation to an injured employé to a lump sum, the proceedings had were not in accordance with Work-porary total disability he suffered a permamen's Compensation Act, § 9, no effort being made by the board to determine the extent of the employé's injuries, and the sum awarded not being computed in accordance with the act, the board had authority, under section 19, par. (h), of the act, to review its former proceedings. 4. MASTER AND SERVANT 419-EVIDENCE JUSTIFYING SETTING ASIDE LUMP SUM SET

TLEMENT.

In proceeding under Workmen's Compensation Act, § 19, par. (h), by employé, to set aside lump sum settlement for broken leg, evidence that the employé accepted the settlement for what he considered a temporary total disability, but that the injury resulted in permanent disability, the bones of the leg not having properly knitted, and subsequent operations having failed to restore it to its previous condition, held to justify Industrial Board's finding that the disability had recurred and increased.

nent partial disability; and awarded to Jefferson $3,500 in weekly payments of $12 and $200 additional for medical, surgical, and hospital services, and ordered that Ellsworth & McNair have credit for all sums already. paid as compensation. The record was taken to the circuit court of Cook county by certiorari, and upon the hearing that court set aside the award of the Industrial Board, for the reason that the parties were not operating under the Workmen's Compensation Act in force at the time of the accident, and cerțified that the cause is one proper to be reviewed by this court.

The first question presented is whether Ellsworth & McNair had elected to come under the act. They were engaged in the commission business of buying and selling horses, and because of the nature of their business would not be bound by the act, unless an

Error to Circuit Court, Cook County; Os-election to accept the act had been filed by car M. Torrison, Judge.

them with the Industrial Board. On July Proceeding under the Workmen's Compen- 16, 1913, J. J. Ellsworth, one of the partners, sation Act by Patrick Jefferson, employé, wrote on the firm's letter head the following against J. J. Ellsworth and another, employ- letter, signed with the partnership name The award of the Industrial Commis- and addressed to the Industrial Board at sion was on certiorari set aside, and the Springfield, Ill.:

ers.

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

(125 N.E.)

"This is to advise you that we have decided [ 1913. The election by Ellsworth & McNair to embrace the new Workingmen's Compen- to come under the Compensation Act was sation Act, which took effect May 1, 1912. made by a letter addressed by them to this Kindly acknowledge receipt hereof and send Industrial Board. According to a memoranus a copy of this act." dum appearing on the bottom of their letter, which is on file with the Industrial Board, a copy of the act of 1913 was mailed to them. They carried liability insurance, and when Jefferson was injured the insurance company paid him compensation in accordance with the terms of the act. When the settlement was made, they required that it be approved by the Industrial Board. Considering all the evidence, it cannot be said that there is no evidence justifying the finding of the Industrial Board that Ellsworth & McNair were operating under the Compensation Act in force at the time of the accident. There being evidence in the record which did justify this finding, we must hold that the circuit court erred in setting aside the decision of the Industrial Board. Swift & Co. v. Industrial Com., 287 Ill. 564, 122 N. E. 796; Big Muddy Coal Co. v. Industrial Board, 279 Ill. 235, 116 N. E. 662.

This letter was received and answered by the labor department at Springfield on July 17, 1913, stating that the letter would be turned over to the Industrial Board as soon as it was appointed. After being confined in the hospital for about three weeks, Jefferson received from the Zurich Insurance Company $24, and every two weeks thereafter he received from the same company a check for $24, until the sum of $108 had been received by him. A representative of the Zurich Insurance Company came to Jefferson's home and offered to pay him $500 in settlement of his claim against Ellsworth & McNair, telling him that they were not operating under the act. Jefferson refused this settlement, and likewise a later settlement offered by the insurance company. Following the offer made by the insurance company, McNair, one of the partners, called on Jefferson at his home and told him that Ellsworth & McNair

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[3] Notwithstanding the fact that a lump sum settlement had been made with Jefferson, the Industrial Board had authority, under paragraph (h) of section 19 of the Compensation Act, to review its former proceed

[4] From a consideration of the whole case

were not working under the Compensation Act. A petition prepared by the insurance company and addressed to the Industrial Board was presented to Jefferson, and he ings. Peoria Railway Co. v. Industrial Com. was requested to sign it. The petition re- (No. 12756) 125 N. E. 1; Wabash Railway Co. quested the Industrial Board to permit Jef-v. Industrial Com., 286 Ill. 194, 121 N. E. 569; ferson to waive provisions of the Compensa-Arnold & Murdock Co. v. Industrial Board, tion Act and to settle his claim against 277 Ill. 295, 115 N. E. 137. At the time the Ellsworth & McNair for $725 and medical board ordered the commutation of the comand hospital services on account of injuries pensation to a lump sum, the proceedings had sustained by him; the petition stating that were not in accordance with section 9 of the Ellsworth & McNair were not bound by the Compensation Act. Hurd's Stat. 1917, p. terms of the act. Jefferson, relying on these 1455. No effort was made by the board to statements and believing that his disability determine the extent of Jefferson's injuries, was temporary, signed the petition and and the sum awarded was not computed in agreed to accept said sum of $725. The peti- accordance with the act. tion was filed and the lump sum settlement approved by the Industrial Board February 7, 1916. Jefferson did not appear before the board; the whole proceeding being conducted by the Zurich Insurance Company. [1, 2] It is contended by Ellsworth & McNair that the letter to the Industrial Board did not show an election by them to come under the act in force at the time the accident occurred; their claim being that at the time the letter was written the act of May 1, 1912 (Laws 1911, p. 315), had been repealed by the act which went into effect July 1, 1913. Whether or not Ellsworth & McNair were under the act is a question of fact, to be determined from all the circumstances connected with the transaction. is well to note in this connection that the Industrial Board was created by the act of

it clearly appears that Jefferson accepted this

settlement for what he considered a temporary total disability. The evidence now shows that his disability is permanent. The bones of his leg did not knit properly, and subsequent operations have failed to restore his leg to its previous condition. He is compelled to use a brace on this leg, and it now appears that he will not be able to again follow his occupation. The record fully justified the Industrial Board in finding that the disability has recurred and increased, and its decision should be confirmed.

The judgment is therefore reversed, and the cause remanded to the circuit court of It Cook county, with directions to confirm the decision of the Industrial Board.

Reversed and remanded, with directions.

(290 III. 542)

PEOPLE v. PATTIN. (No. 12726.) (Supreme Court of Illinois. Dec. 17, 1919.)

who was going in the same direction. The buggy was overturned and badly damaged, and the automobile was by the impact also overturned and thrown into the ditch at the

1. CRIMINAL LAW-508(9), 510-CORROBORA-side of the road. Taylor was injured but

TION OF ACCOMPLICE TESTIMONY.

The testimony of an accomplice is legal testimony, and a conviction may be founded upon it alone and sustained; but such evidence is open to grave suspicion, and should be acted on with the utmost caution.

2. BURGLARY 41(1)-CRIMINAL LAW 508(9)-INSUFFICIENCY OF EVIDENCE.

In a prosecution for burglary and larceny of corn from the owner's crib, evidence consisting almost entirely of accomplice testimony, which other evidence showed to be of little weight, it not being claimed that defendant participated in the actual taking, held insufficient to sustain conviction by showing guilt

beyond a reasonable doubt.

escaped without discovery and returned to his room in the village, where he remained for the rest of the night in company with Claude Melton. Scott immediately demanded that Richards purchase him a new buggy, to which Richards replied that it would be necessary for him to see plaintiff in error about it first. Richards and Scott walked from the scene of the accident to the home of William Trower, in said village, from which place Richards went to the home of the plaintiff in error and called him out of bed, explaining to him that he had struck the buggy of Scott and that Scott was insisting upon settlement of the damages, and

Richards asked plaintiff in error to return

Error to Circuit Court, Coles County; with him to the scene of the accident. PlainWalter Brewer, Judge.

L. P. Pattin was convicted of burglary and larceny, and he brings error. Reversed.

William M. Moran, Jr., of Mattoon (C. C. Lee, of Charleston, of counsel), for plaintiff in error.

Edward J. Brundage, Atty. Gen., Emery Andrews, State's Atty., of Mattoon, and James B. Searcy, of Carlinville, for the People.

STONE, J. This cause comes to this court by writ of error to the circuit court of the county of Coles, in which plaintiff in error, Pattin, was found guilty by a jury and sen. tenced to the penitentiary under an indictment charging him with burglary and the larceny of eleven bushels of corn on July 11, 1917, from the crib of David Gray, located on nis farm in said county.

At the time of the commission of the alleged offense, and for a number of years prior thereto, plaintiff in error resided in the village of Trilla and was engaged in farming and the taxicab business. He also owned a restaurant building in said village in which Harry Taylor was conducting a restaurant at the time in question. For some time previous to July 11, 1917, plaintiff in error and Herschel Richards, as copartners, were engaged in the taxicab business in the village and surrounding territory. Richards operated the automobile and had a key to the garage where the automobile was kept. On July 11, 1917, Richards and Taylor took the automobile from the garage about midnight and drove to the corncrib owned by David Gray and took therefrom about twelve bushels of corn and started on their return to Trilla. While running upon the highway with the lights on the automobile turned out they ran into the rear of the buggy of William Scott,

tiff in error and Richards started for the

scene of the accident and were at Trower's home joined by Scott and Trower. Upon arrival at the scene, plaintiff in error reprimanded Richards for taking the automobile and told him not to take any of the corn to his (plaintiff in error's) home. The next day further negotiations were had with Scott, who was insisting upon a new buggy to replace his old one. Plaintiff in error, upon seeking legal advice and being convinced of his liability, as a partner of Richards, for the damage done by the automobile, purchased a buggy for Scott and took the note of Richards for his share thereof. Richards was indicted on the charge of burglary and larceny, found guilty by a jury, and sentenced to the reformatory. Taylor was later indicted and pleaded guilty to the charge of burglary and larceny and was sentenced to the penitentiary. Later plaintiff in error was indicted for the same offense.

It is not contended by the people that there is any evidence whatever to show that plaintiff in error in any way participated in the stealing of the corn. The evidence is undisputed that he was at home in bed at the time the crime was committed. The state contends, however, that the evidence shows that he was guilty as an accessory before the fact; Taylor having testified that plaintiff in error had told him, in the presence of Richards, that if they would get the corn in question he would dispose of it for them.

Numerous errors are assigned, some of which, however, are not argued or pressed in this court. It is most earnestly urged, however, that the verdict of the jury is contrary to the evidence; that certain instructions given on behalf of the people were erroneous; and that no valid record of the proceedings of the trial was kept.

The only direct evidence of the guilt of

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

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(125 N.E.)

guilty is not, of itself, sufficient to hold plaintiff in error guilty as accessory, either before or after the fact. In this record the conviction of the plaintiff in error rests almost entirely upon the testimony of Taylor.

Claude Melton, a witness for the people, testified that he had a conversation with Taylor after the indictment of Richards; and that he asked Taylor what he would do if he (Taylor) were also charged with the offense, to which Taylor replied that he would swear that Richards and plaintiff in error had made it up and that that would clear him, Taylor. Melton also testified that he was in the restaurant of Taylor on the evening in which the crime was committed and was invited by Taylor and Richards to go with them and that he refused to do so; that, when asked what was going to be done with the corn, Taylor said that he was going to take the corn to Mattoon and sell it and use the money to stock up his restaurant.

Taylor testified that the conversation with plaintiff in error concerning the taking of the corn occurred in Trilla, about 9 o'clock in the morning, either two or three days before the commission of the offense. Two witnesses aside from plaintiff in error testified that for three days before the commission of the offense plaintiff in error was not in the village of Trilla at any time during the day, but was working on a small farm in the country.

plaintiff in error was given by Taylor, who when he had reason to believe Richards was testified that two or three days before the commission of the crime he had a conversation with the plaintiff in error, who told him where the corn was, and that if Taylor and Richards would get the corn he would get rid of it for them. Taylor testified that this conversation was had in the presence of Richards. In this he is contradicted by Richards, who says that he never at any time had any conversation with plaintiff in error with reference to getting the corn in question, and that he was not present when any such conversation was had between plaintiff in error and Taylor. Taylor is also contradicted in the essential parts of his testimony by other witnesses for the state. Eight witnesses, who, so far as the record shows, are reputable people of that community, declared that his reputation for truth and veracity in the community in which he resided was bad. The only other testimony offered to show the guilt of plaintiff in error as accessory was the statement of Richards that on one occasion about six weeks before the commission of the crime, while he and plaintiff in error were driving on the highway near Gray's corncribs, plaintiff in error said, in effect, that if he were Gray he would be afraid that corn left out in the crib like that all winter would be stolen. The only other conversation with plaintiff in error testified to by Richards in which the subject of corn was mentioned was four days before the day of the theft. Richards testified that he owed plaintiff in error for some automobile tires and that Pattin asked him for the money, to which he replied that he had none, and that Pattin then told him to get him some corn in the place of money. There was nothing said as to how Richards was to get the corn or where the corn was to come from, nor was there anything in the record showing that he at any time suggested to Richards that he should get corn in any manner except legitimately. The evidence also shows that plaintiff in error advised Richards to defend against the charge made against him in the indictment and went with him while he (Richards) secured an attorney. The evidence does not show, however, that plaintiff in error in any way assisted in paying the attorney's fees. Richards was a minor and was a partner in the taxicab business. It is but natural that Richards would turn to plaintiff in error for advice. The mere fact that plaintiff in error advised Richards to contest the indictment

[1, 2] As we have seen, the case against the plaintiff in error depends almost entirely upon the testimony of Taylor, who stands as a confessed accomplice in this crime, and who stated upon the witness stand that he hoped to gain his liberty from the penitentiary on the ground of his testimony in the case. The testimony of an accomplice is legal testimony, and a conviction may be legally founded upon such testimony, alone, and such conviction sustained thereon. But such evidence is open to grave suspicion and should be acted upon with the utmost caution. People v. Feinberg, 237 Ill. 348, 86 N. E. 584. In addition thereto, in the instant case there is much evidence in the record tending to show that the testimony of Taylor is not entitled to weight. Under such a condition of the record, we are convinced that plaintiff in error was not proven guilty beyond a reasonable doubt and that he was improperly convicted.

The judgment of the circuit court of Coles county will be reversed. Judgment reversed.

(290 Ill. 323) O. W. ROSENTHAL CO. COMMISSION et al.

(Supreme Court of Illinois.

SERVANT

provided in paragraph (d) of section 8 of the v. INDUSTRIAL Workmen's Compensation Act as amended (No. 12557.) (Laws 1913, p. 342), for partial incapacity, and a further sum of $8.35 for first aid medical, surgical, and hospital services, as provided for in section 8 of said act, and the Court entered judgment for the installment payments then due and to become due, and ordered execution to issue thereon.

1. MASTER AND SERVANT MEN'S COMPENSATION ACT; FIED BY EVIDENCE.

Dec. 17, 1919.)
405(6)-WORK-
AWARD JUSTI-

Evidence in support of a claim by a workman suffering from hernia, whose wages were admitted to be $5.60 per day for 250 days in a year, held to justify an award of $7 per week for 413 weeks for permanent partial disability. 2. MASTER AND SERVANT 418 (32) -WORKMEN'S COMPENSATION ACT; EFFECT OF WRIT

OF ERROR MADE A SUPERSEDEAS.

A question as to whether the circuit court erred in not amending its judgment to conform to an amendment of an award by the Industrial Commission after the issuance of a writ of error

made a supersedeas, cannot be considered either by the circuit court or the Supreme Court, and where it appears that the question of amendment by the commission is pending on a writ of certiorari, petitioned for after the issuance of the writ of error, that question should be passed on by the circuit court.

The defendant in error, Sylvester Bush, was employed as a carpenter by the plaintiff in error from May to August, 1917, and on the 16th day of August, while he and his fellow workmen were carrying a heavy timber, Bush slipped and either dropped his end of the timber or fell with it to the floor. Soon after this incident Bush felt a pain in his groin and told the foreman about it. He remained away from his work for two days, and then returned to the office of the plaintiff in error and presented a doctor's certificate that he was suffering from a rupture, at which time he reported his injury in detail to the foreman. The medical testimony shows that Bush was examined soon after the accident in question and found suffering from a rup

3. APPEAL AND ERROR 485(1)-EFFECT OF ture of only a few days' standing. The plain

WRIT OF ERROR AS SUPERSEDEAS.

A writ of error brings up the entire record, as does an appeal, and where the writ is made a supersedeas it operates to suspend all further action of the trial court touching the matter, as does the perfecting of an appeal.

tiff in error and Bush were working under and subject to the provisions of the Workmen's Compensation Act, and the accident arose out of and in the course of the employ

ment.

The trial court certified that in its opin4. MASTER AND SERVANT 417(9)—-WORK-ion this cause is one proper to be reviewed MEN'S COMPENSATION Аст; REVIEWING by the Supreme Court. Thereupon a certi

COURT CANNOT ENTER MONEY JUDGMENT AND
ORDER EXECUTION.

Under the Workmen's Compensation Act, the circuit court, on affirming an award, has no authority to enter a money judgment against the employer and order execution thereon.

fied copy of the record was filed in this court and a writ of error issued, which was made a supersedeas. Thereafter plaintiff in error filed a petition with the Industrial Commission, asking a modification of the award, and that the award be suspended, on the ground that Bush refused to undergo an operation

Error to Circuit Court, Cook County; (tendered by the plaintiff in error) to reduce Oscar M. Tomison, Judge.

the hernia. A hearing was had on this petiProceeding by Sylvester Bush under the tion, and the Industrial Commission modified Workmen's Compensation Act, opposed by the the award by suspending all payments proO. W. Rosenthal Company, employer. The vided for in the award until Bush should Circuit Court confirmed the award and certi- undergo the operation proposed. Thereupon fied that the cause was one proper to be re- plaintiff in error filed its petition in the cirviewed by the Supreme Court, which issued a cuit court, for the purpose of having the writ of error. Reversed and remanded, with court modify the judgment theretofore endirections. tered confirming the award. The trial court denied the prayer of the petition, on the ground that it had no jurisdiction to make any order in the case, as it was pending on writ of error in this court.

Zimmerman & Garrett, of Chicago, for plaintiff in error.

Hope Thompson, of Chicago, for defendant

in error.

STONE, J. The circuit court of Cook county confirmed an award of the Industrial Commission, in which the defendant in error, Sylvester Bush, was awarded $12 per week for a period of 3 weeks for temporary total incapacity for work, and a further sum of $7 per week for a period of 413 weeks, as

[1] It is contended by plaintiff in error that the court erred in sustaining the award, as the same was not based on any evidence as to average annual wages; that there was no evidence upon which to base the award of the sum of $8.35 for medical services; that there was no evidence upon which to base the award of $7 per week for 413 weeks for permanent partial disability. We have read

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

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