defendants as witnesses was the same as commenting on a failure to call any other material witness presumably under his influence or control, for it must be conceded that these co-defendants, who had been actively associated with him in his banking operations, were material witnesses, and they, better than anyone else, could by their testimony throw light on the transactions of the plaintiff in error which are charged to have been criminal. In this connection I think the true rule is laid down in People v. McGarry, 136 Mich. 316, in which it is said, on page 328 of the opinion: "There are many cases which justify comment upon the failure of a party to produce particular witnesses, and the rule extends to criminal cases. (3 Rice on Evidence, 29; State v. Ward, 61 Vt. 153; 17 Atl. 483.) It is not an unqualified right and depends upon the circumstances of the case. We think it applies to a deposition taken by the party and not used, and to accomplices and other witnesses within their control or with whom they are or have been closely associated, especially where such witnesses are in a position to speak on matters damaging to such party, already in evidence.-1 Starkie on Evidence, 34; 3 id. 487. See 2 Ency. of Pl. & Pr. p. 714, and notes, where cases are cited, and our own cases of Gavigan v. Scott, 51 Mich. 373; 16 N. W. 769; Cook v. Insurance Co. 86 Mich. 554; 49 N. W. 474." To the same effect as to comments on the failure of a defendant in a criminal case to produce witnesses which he can produce are State v. Shelly, 100 Minn. 110; Commonwealth v. Weber, 167 Pa. St. 153; People v. Honey, 92 N. Y. 554; Hopson v. State, (Ark.) 180 S. W. Rep. 485.

In this State no comment or reference can be made to the failure of a defendant in a criminal case to testify, because of the statute in that regard, but there is no statute which forbids comment in reference to the failure of a codefendant to testify or be called as a witness by defendant.

I do not think there is any good reason, under the facts of the present case, why those who were co-defendants with plaintiff in error should be considered as other than mere witnesses. If this is correct, then, as a matter of law, it was not error for the State's attorney of Grundy county to make the statement he did, and the propriety of the statement of the assistant State's attorney of Cook county is amply supported by the above authorities. The effect of such remarks is entirely conjectural, and it would certainly seem, from the length of the trial and all the circumstances shown by the record, that the prosecution was conducted fairly and according to law and the plaintiff in error was given every opportunity to present his defense and that none of the matters complained of can be said to constitute prejudicial error sufficient to justify a reversal. There are other considerations that far outweigh such alleged errors in the trial. There was ample proof to support the verdict and judgment against the plaintiff in error. The criminal acts with which he was charged involved several banks and resulted in enormous losses to hundreds of stockholders and thousands of unsuspecting depositors in those institutions. While there was no question about the result or effect of such transactions, it was difficult and expensive for the People to prove that they were criminal and that the plaintiff in error was guilty as charged. It would be most extraordinary if some errors had not been made in the course of such a long-drawn-out trial. On the whole the plaintiff in error had a fair trial in the circuit court, and the judgment of that court has been affirmed by the Appellate Court after a full consideration of the case, as shown by the opinion of that court. In my opinion there was no prejudicial error or error sufficient to justify a reversal, and the judgments of the circuit and Appellate Courts should not be reversed. because of slight remarks of counsel that in all probability did not in any way affect the result.

(No. 11501.-Judgment affirmed.)

KARL FRIEBEL, Appellant, vs. THE CHICAGO CITY RAILWAY COMPANY et al. Appellees.

Opinion filed October 23, 1917.

1. WORKMEN'S COMPENSATION-when employee of a furniture company is engaged in extra-hazardous occupation. A furniture company which maintains a warehouse for the storing of its furniture, from which deliveries are made to customers, operates a warehouse within the meaning of subdivision 4 of paragraph (b) of section 3 of the Compensation act, and an employee who is engaged in delivering such furniture and whose duties require him to work in and around the warehouse is engaged in the extrahazardous occupation of his employer.

2. SAME-injury received while going to and from work may be in course of employment. An injury to an employee while going to or returning from his employment may be such as to be regarded as occurring within the course of the employment.

3. SAME-Section 29 of the Compensation act construed. Under section 29 of the Workmen's Compensation act, where an employee, while in the line of his employment, is injured by a third party, and the employer, employee and third party are all under the act, the employee may recover compensation from his employer whether the third party was guilty of negligence or not and regardless of the question whether the third party can be held liable in an action for damages, but he cannot sue the third party for damages. (Kecran v. Peoria, Bloomington and Champaign Traction Co. 277 Ill. 413, followed.)

4. SAME liability of third party under section 29. If an injury to an employee while in the line of his employment is caused by a third party, and the employer, employee and third party are all under the Workmen's Compensation act, then, under section 29 of that act, the third party is liable to pay to the employer the amount of compensation awarded against him and in favor of the employee, provided the third party was guilty of negligence or a violation of some statute giving rise to an action for damages by the employee.

5. SAME-employee's recovery not dependent upon solvency of employer. The fact that section 29 of the Workmen's Compensation act takes from the employee, under the circumstances stated therein, the right to bring an action against a third party who injures him does not make his recovery of compensation dependent upon the solvency of his employer, since, if the employer should be insolvent or fail to bring the action against the third party, the

employee would have the right to maintain the action for his use in the name of his employer.

6. SAME-under section 29 of the Compensation act employer may bring action against third party without first paying compensation. Under section 29 of the Workmen's Compensation act the employer may bring his action against the third party causing the injury without first having paid the employee the amount of compensation awarded, as the word "subrogated," in said section, is not used in its technical sense but is more nearly equivalent to the word "transferred."

7. SAME-Section 29 of the Workmen's Compensation act is not invalid. Section 29 of the Workmen's Compensation act is not invalid because in some cases the injured employee who is under the act may not receive adequate compensation for his injuries, as such employee has his election whether he will be bound by the act; nor is the act invalid as being broader than its title nor as being discriminatory or special legislation.

APPEAL from the Circuit Court of Cook county; the Hon. KICKHAM SCANLAN, Judge, presiding.

C. W. GREENFIELD, for appellant.

HARRY P. WEber, George W. MILLER, and ARTHUR J. DONOVAN, (JOHN R. GUILLIAMS, and FRANKLIN B. HUSSEY, of counsel,) for appellees.

Mr. JUSTICE DUNCAN delivered the opinion of the court:

Appellant brought this suit against the Chicago City Railway Company, the Calumet and South Chicago Railway Company and the Hammond, Whiting and East Chicago Railway Company, appellees, to recover damages for personal injuries received by him November 13, 1913, in a collision of a street railway car and an automobile truck. The original declaration was filed February 6, 1914, an amended declaration was filed November 13, 1915, and three additional counts were filed October 21, 1916, all counts in the amended declaration being finally withdrawn except the first amended count and the first additional count. Said two counts of the amended declaration charged

that appellant was injured by the negligence of appellees in operating a street car in the city of Chicago on a certain street railway, and that appellees were jointly and severally possessed of and operating the street car at the time of the collision. There was a plea of not guilty and a plea denying ownership of the car, with a stipulation that any competent evidence might be introduced in support of the defense that appellant and appellees were all governed and controlled by section 29 of the Workmen's Compensation act that would be admissible under a proper plea in bar of said action based on the provisions of said section. Appellant offered evidence tending to prove the allegations of the declaration. Appellees offered no evidence as to the accident or injury to appellant, but introduced proof tending to show that at the time of appellant's injury he and his employer, the Hartman Furniture and Carpet Company, and the appellees, were all operating under the provisions of the Workmen's Compensation act, to support their contention that by reason thereof appellant's suit is barred by section 29 of that act. At the close of all the evidence appellees requested the court to instruct the jury to find them not guilty and the court so instructed the jury. A verdict of not guilty was accordingly returned, and judgment was entered on the verdict in favor of appellees and against appellant. From that judgment of the circuit court of Cook county this appeal was prosecuted direct to this court, on the ground that the constitutionality of section 29 of the Workmen's Compensation act is involved.

The facts, so far as they are material to the questions presented on this appeal, are not in dispute. They were established by stipulations and by testimony which was not contradicted. It appears from the record that on November 13, 1913, the appellant was in the employ of the Hartman Furniture and Carpet Company, which company at that time was in the business of operating some five or six retail furniture stores located in different parts of Chicago,