Slike stranica

the check-that he had stopped payment on and that if he did not pay the $300 he would it-that plaintiff in error came the next day pay it to him, and that he then loaned him to Kansas City and returned the check, but the money in cash after they refused to sent to Denver for the furs; that an express- take his check; that afterwards, the money man brought the furs over to witness' place not being paid, he asked plaintiff in error of business, and witness bought them for for the money, and that he told witness the $500 and offered him a check, which he re- goods had been shipped to another city-Denfused. Witness then offered to borrow mon-ver, he thought-and that he got a bill of ey from a pawnbroker, as the banks were lading, which he showed witness; that plainclosed, if plaintiff in error would pay the tiff in error afterward showed him a check $10 charge for interest, which offer was ac- for $500, and offered it to witness in paycepted by plaintiff in error. Witness asked ment of the $300 if he would pay him $200 him to give a bill of sale, and he replied difference in money; that next day plaintiff that he could not write. Plaintiff in error in error showed him a telegram, stating that again called on witness about July, 1913, the check must not be cashed, and that plainin Kansas City, and told him he had called tiff in error then asked him to go with him witness on the long-distance telephone from to Kansas City, and he would then get his Tauber's, but that witness was not in town. money; that they left for Kansas City that He then asked witness if any one had inquir-night, December 22, 1912, and got to Kansas ed about the fur transaction, and on being City the next day and stopped at a hotel the told that no one had, he asked the witness name of which he had forgotten; that he to say he did not buy anything from him, if (witness) signed his name on the hotel regisany inquiry should be made, because he was ter, and thinks that Melnick signed his name in trouble; that he again called upon wit- there too, and that he thinks he saw him sign ness in Kansas City in March, 1915, and it. He identified his own signature in a hotel again about ten days after witness had tes-register purporting to be that of the Hotel tified in this case before the grand jury, and De More, of Kansas City, Mo., on which aptold witness he did not have to go to Chi-peared the names M. Cohen and B. Melnick, cago to testify, and witness replied that he the latter name written just after the former. sold witness a lot of stolen furs, and that witness wanted to clear his name. Plaintiff in error then suggested that witness could fail to identify him; that he (Melnick) had headed a witness off from Duluth, who was coming to testify against him, and that the man never came. Witness then identified the people's exhibit of furs in this case as part of his purchase from plaintiff in error, and on cross-examination located the date he purchased the furs from plaintiff in error in Kansas City as being in December, 1912, just prior to Christmas.

The witness Greenstone was corroborated by Hyman Kinzelberg, who identified the people's fur exhibit and the goods so purchased by Greenstone as the property stolen from him, and testified that shortly after the goods were stolen from him he went to plaintiff in error and asked him to help him get his furs; that plaintiff in error asked him who sent him, and that he replied:

"It don't make any difference; they told me you had possession of the goods; if you want to help me out I could help you out."

He also testified that they returned together to Chicago, as he remembers, on the night of December 24, 1912, and that plaintiff in error paid him $250 of his money on the train as they went back to Chicago. He could not remember the name on the check, nor on the bill of lading.

Nathan Steinberg testified that he was a convict at Joliet, and that he, with others, burglarized Kinzelberg's place in the winter of 1912 or 1913, and stole therefrom some furs, "scarfs, muffs, everything," and sold them to Tecotczky, "a fence, buying stolen property."

Michael Tauber, an auctioneer, testified that Greenstone was in his place of business December, 1912, but does not remember if he and Melnick were there together. He also testified that Melnick came to his place of business and asked for Greenstone's address, and that he gave it to him, and that Melnick asked permission to use his phone to call up Greenstone on the long distance.

Elias Tobias testified that he was with Kinzelberg when plaintiff in error made the The plaintiff in error replied: statement that he would pay Kinzelberg $250 "My case is in the Supreme Court now; they in money and $250 in notes and would see will reverse it in the Supreme Court, and it will cost me to fight the thing. I will give you $250 Cohen, and that he would do as well by him, in cash and $250 in notes, and I'll see that and also that plaintiff in error said to KinzelCohen does something, too. You would have got your furs back if your wife had not had berg, "If your wife had not had such a bad such a big mouth; treat me right, Kinzelberg, mouth you would have had your furs long and I'll treat you right."

Cohen testified in corroboration of Greenstone that Tecotczky wanted to borrow $300 from him, and that he refused to lend it to him without security; that the next morning plaintiff in error came with Tecotczky and


Alvin Strauss testified that as check clerk for the Burlington Railroad Company he had charge of shipping goods on the cars to their destination. He identified Exhibit 5 as the bill of lading, which he states was made in

shipped to Denver, Colo., marked as dry discloses clearly that it was very material in goods.

the first trial to prove whether or not he had Frank McClintock testified that he lived any knowledge about the furs of Kinzelberg. in Denver, Colo., and is assistant cashier of It was also a very material point in the case the Burlington Railroad Company. He in the former trial as to whether or not in identified the bill of lading, also, and testified December, 1912, he went to Kansas City, Mo., that he received the case of goods on Decem- for the reason that the truth of the story ber 12, 1912, and that they remained there of Greenstone depended upon that very fact, until December 18, 1912; that then a United a fact which plaintiff in error denied on States Express driver presented the bill of oath. If he was not in Kansas City at any lading, paid the charges, and took the goods time during 1912, as he testified in his own out and gave a receipt for the same. The defense, Greenstone's story was false, and body of the bill of lading from the Burling- if he was there, that fact corroborated Greenton reads thus: stone. It was not necessary to prove all the assignments of perjury in order to establish his guilt, but only sufficient to prove any one or more of them as charged in the indictment, and that those matters were material to the issues in the former case.

"Received of M. Golden, 12-6-1912, consignee, M. Goldberg, Denver, Colorado, 2 cases of dry goods, weight 385 pounds."

Plaintiff in error by his testimony made a general denial of the testimony of the people's witnesses intended to incriminate him, and sought to establish an alibi by his own testimony and the testimony of a number of his friends and relatives. The substance of their testimony on the question of an alibi is that his mother died during the month of December, 1912, and that in accordance with the religious custom of the Jewish race plaintiff in error and his said witnesses met together at his mother's house after she died and prayed for several nights. Many of these witnesses could not even fix the date of the death of his mother, nor when they met the plaintiff in error after her death. The testimony, therefore, as to the alibi is not so convincing as is the testimony for the people. Besides, plaintiff in error was successfully impeached by a number of witnesses who testified that his reputation for truth and veracity was bad in the neighborhood where he lived, and that from that reputation they would not believe him on oath. It needs no argument to show that the verdict of the jury was clearly supported by the evidence, which, in our opinion, makes a very strong case of guilt against plaintiff in error, and we do not see how any other verdict could have confidently been counted on by him.

[4] The giving of the people's instruction No. 2, in substance telling the jury that the matters set forth in the second assignment of perjury, as well as those in the other assignments, were material to the issues in the former case, was not error. It was a question of law for the court to settle as to whether or not the false testimony was material to the issues in the former case. Wilkinson v. People, 226 Ill. 135, 80 N. E. 699.

[5] Plaintiff in error's instruction No. 7 was properly refused by the court. It is prefaced by the proposition that the question whether or not he received the goods in question or committed larceny of the goods in question has nothing to do with the case. It is true that he was not on trial for either one of those offenses, but it was very material to show that he received the goods in question in order to show that he did have knowledge concerning the furs of said Hyman Kinzelberg. It would have been error for the court to have given said instruction.

[6] The claim of plaintiff in error that there was a variance between the allegations in the former indictment and those in the indictment in this case comes too late in this [2, 3] It is also argued by plaintiff in er- court. The variations are, in substance, that ror that the matters so falsely sworn to, as in the former indictment it was charged that alleged in the indictment, were not proven to the value of the goods received was $6,122, be material to the issues on trial in the for- while in this indictment it is charged that mer case. Under that indictment it was nec- the value alleged in the former indictment essary to prove that the goods were received was $6,980, and there are perhaps some other by plaintiff in error knowing them to be variations in minor matters. The variations stolen property. This is abundantly proved were not pointed out to the court until after by the testimony of Greenstone and others; verdict and on a motion for new trial. It and the manner in which he disposed of the was the duty of plaintiff in error to point out property by first shipping it in an assumed such variations during the taking of the eviname to Goldberg, and his cunning transac- dence, so that the trial court could pass upon tions in regard to it generally, show a studied them at that time. Unless such practice is method by him of handling and dealing with followed the trial court would not be called the goods so as to leave no trace of himself upon to grant a new trial by reason of the in the transactions, as nearly as was possi- variance then pointed out, unless it would ble. His conversations with Kinzelberg, be under circumstances clearly shown to be Greenstone, and Cohen all show guilty knowl- prejudicial to the defendant on trial. That edge of the fact that the goods were Kinzel- is not the case here. The variations are mereberg's, and that he had positive knowledge ly technical, and do not affect the merits of that they were stolen. The evidence itself, the case. For his failure to call the atten

[Ed. Note. For other cases, see Life Estates,

Cent. Dig. §§ 24-28; Dec. Dig. 3. TENANCY IN COMMON

8.] 15(9) — ADVERSE

tion of the court to the variance before the not color of title, either for her or her grantee, evidence closed and to move to exclude the with knowledge of the facts. evidence, the plaintiff in error should be deemed to have waived all right to contend for such a variance in this court. Libby, McNeill & Libby v. Scherman, 146 Ill. 540, 34 N. E. 801, 37 Am. St. Rep. 191; Greene v. People, 182 Ill. 278, 55 N. E. 341.

[7] The claim of plaintiff in error that the court committed reversible error in admitting the evidence impeaching the plaintiff in error by showing his general reputation for truth and veracity in the neighborhood in which he resides is also without merit. It is elementary that where any witness' testimony, including parties to the suit, is offered on the trial of a cause, civil or criminal, any such witness may be impeached by showing his general reputation for truth and veracity in the neighborhood in which he lives to be bad; and this is true whether evidence has been first given to sustain his reputation or otherwise. In fact, it is not the practice to offer witnesses to sustain the reputation of another witness for truth and veracity until it is first attacked by the party claiming that the reputation is bad, as it is presumed to be good until otherwise shown. perhaps, rulings on the evidence by the court in other particulars that are technically erroneous, but, after considering the whole record carefully, our conclusion is that such errors were harmless, and that they are not reversible errors. No reversible errors were committed by the court or by counsel for the state by way of prejudicial remarks or argument before the jury. A careful examination of the record satisfies us that plaintiff in error has had a fair and impartial trial, and that no other verdict could be reasonably expected under the evidence in this case, and that the judgment ought to be affirmed. The judgment of the criminal court is therefore affirmed.

Judgment affirmed.

(275 Ill. 117)

There are,

MASON et al. v. WINGATE. (No. 10746.) (Supreme Court of Illinois. Oct. 24, 1916.) 1. LIFE ESTATES 8-ACQUISITION OF TAX TITLE AGAINST REMAINDERMEN.



Mere possession by one tenant in common, and payment of taxes and appropriation of the rents, gives no adverse title against cotenants having no knowledge of adverse claim by him. [Ed. Note.-For other cases, see Tenancy in Common, Cent. Dig. § 50; Dec. Dig. 15 (9).]

Error to Circuit Court, Hardin County; Julius C. Kern, Judge.

Suit by Susan Mason and another against James H. Wingate. Decree for complainants, and defendant brings error. Affirmed.

Richard F. Taylor, John C. Oxford, and James E. Denton, all of Elizabethtown, for James A. Watson and plaintiff in error. John Q. A. Ledbetter, both of Elizabethtown, for defendants in error.

FARMER, J. Defendants in error, as complainants in the court below, filed their bill for the partition of 80 acres of land in Hardin county. The bill also prayed that a certain tax deed be set aside as a fraud upon the rights of complainants and declared to be null and void. A decree was entered in accordance with the prayer of the bill for partition and setting aside the tax deed, to review which this writ of error is sued out.


The land described in the bill (80 acres) belonged to James Cullison in his lifetime, and was occupied by him and his family as a home. Cullison died intestate in June, 1877, leaving a widow, Margaret A. Cullison, six children, John Cullison, Elizabeth Ann, Salona, Tryphenia, Ezekiel H., and Susan, also a grandchild, Rhoda Laird, only child of a deceased son, as his only heirs at law. bill alleges said heirs each inherited an undivided one-seventh of the land; that before the death of Cullison the land was sold for taxes to C. L. Clanahan; that immediately after the death of Cullison his widow redeemed the premises from said tax sale, but instead of procuring a certificate of redemption from the county clerk, she took an assignment of the certificate of purchase from Clanahan, and afterwards, in fraud of the rights of complainants, secured a tax deed from the county clerk to herself for said After the death of his father, John

A widow, having a life estate in lands by virtue of homestead and dower estates, is bound to pay the taxes, including those for which, premises. prior to her husband's death, the land had been Cullison conveyed his interest in the premsold, so that her purchase of the certificate of purchase from the purchaser at such sale amounted to a payment of the taxes by her: and she did not, by taking an assignment of the certificate and obtaining a tax deed thereon, acquire any interest adverse to the owners of the [Ed. Note.--For other cases, see Life Estates, Cent. Dig. §§ 24-28; Dec. Dig. 2. LIFE ESTATES



8-ADVERSE POSSESSION -COLOR OF TITLE. A tax deed, obtained by one having a life estate and therefore bound to pay the tax, was

ises to the widow, his mother. Elizabeth, Salona, and Tryphenia conveyed their interest in the land to their brother Ezekiel H. Cullison. On September 15, 1897, the widow and the son Ezekiel H. executed a warranty deed to plaintiff in error, James H. Wingate, husband of James Cullison's daughter Try. phenia, for the entire 80 acres of land, for the expressed consideration of $1,000. Complainants claimed to each own the undivided one-seventh of the land. James H. Wingate

answered, denying complainants owned any interest in the land, and claiming that he was the owner of the entire premises. He denied the tax deed was a fraud, and alleged he was the purchaser in good faith of the premises in controversy, and had for 7 successive years been in the actual, adverse, and exclusive possession of the premises, during which time he had paid the taxes thereon.

[2, 3] Neither is plaintiff in error in any position to claim title by virtue of section 6 of the Limitation Act. He could not rely upon title obtained by virtue of the tax deed to the widow as color of title obtained in good faith because it was not color of title so obtained by her, and as her grantee with knowledge of the facts he occupied no better position than the widow. See authorities [1] Plaintiff in error claims to be the owner above cited. Plaintiff in error acquired a of the two-sevenths interest in the premises five-sevenths interest in the land by the deed claimed by defendants in error, either by vir- from the widow and E. H. Cullison in 1897. tue of the 20-year statute of limitations or He went into possession of all of the premises under section 6 of the chapter on Limitations under the deed, and has so continued until (Hurd's Rev. St. 1915-1916, c. 83), under color the commencement of this suit. The only tesof title obtained in good faith, together with timony relied on to show that he claimed adpossession and payment of taxes for 7 years. versely to defendants in error is that he paid As we understand the argument, the claim the taxes, received all the income from the of ownership by virtue of the 20-year statute land, and his statement that he claimed to be of limitations is based upon the contention the owner of it. There is no proof that that the widow, from the time she obtained defendants in error ever had any knowledge a tax deed to the premises shortly after the that plaintiff in error claimed the whole of death of her husband, claimed to own the the premises, nor is any act of his shown whole of the premises by virtue of that deed, from which any such claim could be inferred. and that her possession, and his since he The mere possession of one tenant in compurchased from her, was adverse to defend-mon, payment of taxes and appropriation of ants in error. There is no proof to support rents by him, cannot be set up as a bar the contention that the widow's possession against a cotenant in common. McMahill v. was hostile and adverse to the heirs. In the Torrence, 163 Ill. 277, 45 N. E. 269; Donason first place, she acquired no title to or inter- v. Barbero, 230 Ill. 138, 82 N. E. 620; Stowell est in the premises by the tax deed. She v. Lynch, 269 Ill. 437, 110 N. E. 51. was entitled to the possession of the prem- The decree is supported by the law and the ises, by virtue of her homestead and dower evidence and is affirmed. estates, after her husband's death, and it Decree affirmed. was her duty to pay the taxes. She could not acquire title through a sale of the land for nonpayment of taxes, and an attempt to do so by her amounted to a payment of the taxes, and created no right in her adverse to the owners of the fee. Whatever her intention may have been in securing the tax deed, she never did any act which would be notice to the heirs that she claimed the land adversely to them by virtue of the tax deed. Subsequent to the acquirement of the tax deed by her, she bought the interest of one of the heirs, and she and the son who had bought the interest of three other heirs united in the conveyance to plaintiff in error. That deed purports to be a conveyance of the entire 80 acres, and is the nearest approach to an adverse claim to defendants in error to be found in the proof, and that is wholly insufficient to establish that claim. She was not a purchaser in good faith under her tax An employer engaged in hauling crushed deed, because, as we have stated, as life ten-stone for paving which was to be done by anant the law made it her duty to pay the tax- other is engaged in the "business or enterprise es, and her purchase of the certificate of of carriage by land" within Workmen's Compurchase from Clanahan amounted to a pay- 3, since the hauling is not a mere incident to pensation Act (Laws 1913, p. 339) § 3 (b), cl. ment of the taxes by her, and she could not, the business, but is the enterprise itself in which by taking an assignment of the certificate the employer is engaged. and a tax deed, acquire any interest adverse to the owners of the fee. Blair v. Johnson, 215 Ill. 552, 74 N. E. 747; Hanna v. Palmer, 194 Ill. 41, 61 N. E. 1051, 56 L. R. A. 93; Lewis v. Ward, 99 Ill. 525.

(274 Ill. 498) PARKER-WASHINGTON CO. v. INDUS TRIAL BOARD et al. (No. 10749.) (Supreme Court of Illinois. Oct. 24, 1916.) 1. MASTER AND SERVANT 417(7)-WORKMEN'S COMPENSATION-FINDINGS BY BOARD. Under Workmen's Compensation Act (Laws 1913, p. 349) § 19, par. (f), providing that the decision of the Industrial Board, acting within its powers, shall, in the absence of fraud, be conclusive, but that the Supreme Court shall have power to review questions of law involved in the decision, the question whether the employer is engaged in construction work so as to be within the provision of section 3 (b), cl. 2, of that act, is a question on which the decision of the board is final, if there is competent, though controverted, evidence to support such decision. [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 417(7).]


[Ed. Note.-For other cases, see Master and

Servant, Dec. Dig. 357.]

3. MASTER AND SERVANT 367-WORKMEN'S COMPENSATION-CONSTRUCTION. Workmen's Compensation Act (Laws 1913, p. 355) § 31, providing that any person who un

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

In the

dertakes to do or have done for him, any work an accident September 25, 1914. enumerated in the act as extrahazardous, and course of his employment by the Bessmer who contracts with another to do the work or any part thereof without requiring a subcontractor to insure his liability to pay compensation to his injured employés, and who creates or carries into operation any trick, artifice, or fraudulent scheme to enable him to do such work without being responsible to the employés, shall be jointly and severally liable with the immediate employer for the compensation provided by the act for injuries to the subcontractor's employés, does not render the principal contractor liable only in case he both fails to require a security of the subcontractor and enters into a scheme to defeat the workmen's compensation, but makes him liable in either event. [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 367.]

Teaming Company, Crampton was driving a two-horse team, hauling a load of crushed stone. While standing up and reaching over to whip the horses he lost his balance, fell under the wheels of the wagon, and was killed. The Parker-Washington Company, the plaintiff in error, is a corporation engaged in general contracting work, including street paving and tunneling. September 19, 1914, through its general superintendent, C. G. Larkin, it entered into a contract with the Bessmer Teaming Company under which the teaming company was to haul over 2,000 cubic 4. CONSTITUTIONAL LAW 208(7)-DISCRIM- yards of crushed stone from where it was INATION-REASONABLE CLASSIFICATION. being taken from a tunnel under construcWorkmen's Compensation Act, § 31, making tion on Seventy-Third street, in Chicago, and a person liable for compensation to the employés deliver it for paving purposes on certain of his subcontractor if he fails to require secu- streets which were being paved. The Bessrity for such compensation or enters into a scheme to avoid liability therefor, if construed mer Teaming Company was a partnership, to apply only to contractors, is not unconstitu- of which A. W. Kenney was one of the two tional as making an unreasonable and arbitrary classification and imposing an arbitrary burden on contractors, since a substantial difference exists between the business of contractors and that of other people, which warrants the classification, and the Legislature may legally classify persons so long as the classification is general, and has some reasonable relation to the end sought.

members. November 16, 1914, the widow, Anna Crampton, filed a claim with the Industrial Board against Kenney, and an award was granted amounting to $2,912, but no effort was made to recover thereon, apparently because Kenney was insolvent. January 13, 1915, claim was filed with the Industrial Board by William J. Bowe against the Park

[Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 654-656; Dec. Dig. er-Washington Company. The board found 208(7).] ·



Under Workmen's Compensation Act (Laws 1913, p. 351) § 24, requiring notice of the accident to be given the employer within 30 days, but providing that the failure to give such notice shall not relieve the employer from liability when the facts are known to him or his agent or vice principal when read in connection with section 31, making the principal contractor liable for compensation of employés of a subcontractor in certain cases, the principal contractor is not relieved from liability by the failure to give no tice to it of the accident, where its foreman and general superintendent had knowledge of the accident even though they did not have any control over the injured employé.

[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 398.]

that said company was at the time of the accident operating under the terms and provisions of the Workmen's Compensation Act; that Kenney and J. P. Bessmer were partners and subcontractors of the Parker-Washington Company at the time of the accident; that the wages of Crampton were $14 a week; that the accident arose in the course of his employment, and that the Parker-Washington Company was liable; and an award was granted of $2,912. This award was reviewed on writ of certiorari by the circuit court of Cook county and the finding of the Industrial Board confirmed. From the judgment of the circuit court the Parker-Washington Company sued out this writ of error.

Plaintiff in error has never elected to come

Error to Circuit Court, Cook County; Oscar within the provisions of the Workmen's ComM. Torrison, Judge.

Proceeding by William J. Bowe under the Workmen's Compensation Act to recover for the death of Harry Crampton, opposed by the Parker-Washington Company. The award of the Industrial Board in favor of the claimant was confirmed by the circuit court on certiorari by the Parker-Washington Company, and the company brings error. Affirmed.

Wilkerson, Cassels & Potter, of Chicago (Ralph F. Potter and Kenneth B. Hawkins, both of Chicago, of counsel), for plaintiff in error. Augustine J. Bowe, of Chicago, for defendant in error.

CARTER, J. Harry Crampton died in the city of Chicago from injuries received in

pensation act; neither has it given notice, as provided by the statute, that it would not come under the act; therefore if it is liable here it must be because the occupation, business, or enterprise in which it was engaged was extrahazardous, under clauses 2 and 3 of paragraph (b) of section 3 of the act. That section reads, in part, as follows:


"The provisions of paragraph (a) of this section shall only apply to an employer engaged in any of the following occupations, enterprises tion, excavating or electrical work. 3. Carriage of businesses, namely: 2. Construcby land or water and loading and unloading in connection therewith." Laws 1913, p. 339.

[1] Plaintiff in error argues that it cannot come within clause 2 as it was not doing any construction work, but was merely engaged in hauling crushed stone to the place

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

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