men's Compensation act, and that on the date last above mentioned the deceased sustained accidental injuries which did arise out of and in the course of the employment, was conclusive and binding on the appellee, and that the appellee having refused to further defend the proceeding is estopped to claim that Frame was not an employee of the appellant.

By the policy the appellee not only undertook to pay the compensation provided by the Workmen's Compensation law, but also to defend, in the name and on behalf of the employer, any suits or other proceedings which might at any time be instituted against it on account of such injuries, including suits or other proceedings alleging such injuries and demanding damages or compensation therefor, although such suits, other proceedings, allegations or demands are wholly groundless, false or fraudulent. The petition filed with the Industrial Commission alleged that on the first day of June, 1918, Walter M. Frame received an injury by reason of an accident arising out of and in the course of his employment by the above named employers, which injury resulted in the death of said employee. Name of injured employee, Walter M. Frame; name of employer, Amalgamated Roofing Company, J. N. Colvin and J. N. Colvin Roofing Company. This was a proceeding instituted against the appellant on account of injuries alleged to have been sustained by an employee demanding compensation therefor, and the appellee was bound to defend the proceeding though it was wholly groundless, false or fraudulent. The appellee being bound to defend the proceeding for compensation and to indemnify the employer against loss by reason of the liability imposed upon it by law for damages on account of such injury, is concluded equally with the appellant by the award in that proceeding. That award was a liability imposed by law upon the appellant for damages on account of an injury to its employee. The evidence on which that finding and award were made does not appear in this record. The claim as made was for an injury

to the deceased as an employee of the appellant. Paragraph (ƒ) of section 19 of the Workmen's Compensation act (Laws of 1917, p. 502,) provides: "The decision of the Industrial Board, acting within its powers, according to the provisions of paragraph (e) of this section, and of the arbitrator or committee of arbitration, where no review is had and his or their decision becomes the decision of the Industrial Board in accordance with the provisions of this section, shall, in the absence of fraud, be conclusive unless reviewed as in this paragraph hereinafter provided." The decision of the Industrial Commission not having been reviewed under this statute became conclusive upon the appellant as an award of compensation against it as Frame's employer, and a liability was thereby imposed upon it by law for compensation because of his injury. The award is conclusive on the appellant that Frame's administratrix was entitled to compensation because of an accidental injury which arose out of and in the course of the deceased's employment by the appellant. The appellee having contracted to defend that proceeding and to indemnify the appellant against loss by reason of the liability imposed upon it by law for such damages is also bound by the award.

The policy provided that "this agreement shall apply to such injuries sustained by any person or persons legally employed by this employer whose entire remuneration shall be included in the total actual remuneration for which provision is hereinafter made, upon which remuneration the premium for this policy is to be computed." The agreement was also subject to the condition that "the premium is based upon the entire remuneration earned during any policy period by all employees of this employer engaged in the business operations described in said declarations and not herein elsewhere specifically excluded, the amount of such remuneration to be exhibited by the employer to the company as provided in condition (c) hereof, and the earned premium adjusted in accordance therewith at the rates here

inafter specified." The appellee argues that from these and other provisions of the contract it appears that the parties intended to contract with reference to such injuries as might be sustained during any policy period by the appellant's own personal employees hired and paid by the appellant and carried by it on its time-books and pay-roll. The appellee was authorized to examine the books of the appellant at any time so far as they relate to the remuneration carned by any employees of the appellant while the policy was in force.

It is argued that the persons covered by the contract are limited by the remuneration paid by the appellant to its employees as shown by the appellant's audited pay-roll, timebooks, etc., furnished by the appellant to the appellee for the purpose of determining the premium payable on the contract. The liability of the appellee on the policy is not limited, because the total premium which it was entitled to collect could not be ascertained under the policy until after the end of the policy year. The appellee was liable under the policy for an injury to an employee of the appellant, and the appellant was liable for premium upon the entire remuneration earned by all its employees, regardless of what the time-books and pay-rolls of the appellant might show; but the amount of the premium could not be ascertained until the expiration of the policy year, because it is impossible to know what will be the entire remuneration earned during any part of the period by all the employees of the employer until the expiration of the policy period. The payment of the premium in advance was not contemplated and is not a condition precedent to liability for the compensation.

The appellant has argued that Frame was an employee of the appellant at common law, but that is a question of fact which was determined adversely to the appellant by the municipal court and the Appellate Court and is not open for consideration here.

Whether Colvin was an independent contractor or an employee of the appellant was a question of fact upon which

the evidence was disputed. The principal consideration in determining whether a workman is an employee or an independent contractor is the right to control the manner of doing the work. It is not the actual exercise of the right by interfering with the work, but the right to control which constitutes the test. "An independent contractor is one who undertakes to produce a given result without being in any way controlled as to the method by which he attains that result." (Jaggard on Torts, sec. 73.) The fact that payment is to be made by the piece or the job or the day or hour does not necessarily control, where the workman is subject to the control of the employer as an employee and not as a contractor. (Decatur Railway and Light Co. v. Industrial Board, 276 Ill. 472; Bristol & Gale Co. v. Industrial Com. 292 id. 16; Franklin Coal Co. v. Industrial Com. 296 id. 329.) This question, however, is not the controlling question in this case. It was in the proceeding before the Industrial Commission. The municipal court did not have before it the evidence which was heard by the arbitrator or the Industrial Commission. Even if it had had the right in this collateral proceeding to review the decision of the commission it had not the evidence upon which the commission acted. It was not a question to be determined by the municipal court whether Frame was an employee of the appellant or not. The question before that court was whether there was a liability imposed upon the appellant by law for damages on account of an injury to its employee. The law provided a tribunal for the determination of that question. The appellee agreed to defend for the appellant any proceedings which might be brought against the appellant on account of such injuries, even though wholly groundless, false or fraudulent, and to indemnify the appellant against loss by reason of the liability imposed upon it by law.

The appellant submitted to the trial court various propositions of law and fact to be held by the court. Among others was the following proposition of law:

"The court holds that by the finding and decision of the Industrial Board of Illinois that Walter M. Frame was an employee of the plaintiff, and by the failure and refusal of the defendant to review the same, the defendant is estopped to deny that the said Walter M. Frame was at the time he received the injuries which caused his death, an employee of the plaintiff and that the finding of said Industrial Commission is final, conclusive and binding upon the defendant in this action."

The court refused this proposition, and it was error to do so.

The judgments of the Appellate Court and the municipal court will be reversed and the cause will be remanded to the municipal court.

Reversed and remanded.

(No. 14126.-Reversed and remanded.)

THE PEOPLE OF THE STATE OF ILLINOIS, Defendant in Error, vs. JOHN HEINEN et al. Plaintiffs in Error.

Opinion filed December 22, 1921.

1. CRIMINAL LAW-as a general rule a new trial will not be granted to impeach a witness. As a general rule a new trial will not be granted for the purpose of admitting cumulative evidence or to afford opportunity to impeach a witness, and although the courts recognize exceptions to this rule, it must be an extraordinary case that will cause a court to grant a new trial for such purposes.

2. SAME when new trial will be granted for newly discovered evidence. A new trial will be granted where there has been diligence and the newly discovered evidence relied upon does not conflict with the rule concerning cumulative evidence and is such as to strengthen the belief that justice has not been done.

3. SAME-when written statements of witnesses on motion to vacate judgment necessitate new trial. Where witnesses positively identify the defendants as the parties who robbed them and the identification rests upon such evidence alone, which is contradicted by corroborative evidence of an alibi as to one of the defendants,