author: Mr. Presiding Justice Matohett

text:
    George H. Edwards, Trading as Edwards’ Florist, Appellee, v. North Shore Gas Company, Appellant.
    Gen. No. 39,139.
    McSurely, J., dissenting.
    Opinion filed February 15, 1937.
    Rehearing denied March 1, 1937.
    Joseph E. Winterbotham, of Chicago, for appellant.
    Charles R. Sercomb, of Chicago, and Clifford S. Carpenter, of- Winnetka, for appellee; Alvin Y. Nygren, of Chicago, of counsel.
   Mr. Presiding Justice Matohett

delivered the opinion of the court.

In an action for negligence in failing to inspect and properly maintain certain gas pipes and upon trial by the court, there was a finding for plaintiff with judgment for $1,001, which defendant asks be reversed. There is no issue as to the amount of damage, but defendant contends that under the facts which are stipulated there was, as a matter of law, no duty upon it to inspect or maintain the gas pipe; that, on the contrary, that duty was upon plaintiff and therefore defendant is not legally liable.

As before stated, the facts are not in controversy. Plaintiff is a florist in Winnetka, Illinois, and owns two lots with a frontage of 100 feet on Willow Road. These lots are 187 feet in depth. Willow Road is a public highway running east and west. Plaintiff’s lots are on the north side of the road. Plaintiff took title to the premises in 1923 through mesne conveyance. In October, 1916, the premises were owned by one Meyer, who conveyed to a man named Kloepfer, one of plaintiff’s predecessors in title. Defendant then and now is a public utility corporation organized for profit, engaged in furnishing gas to consumers in this locality. When Kloepfer owned the premises defendant’s gas main (which was six inches in diameter) as now, was laid on the south side of Willow Road. In February, 1917, Kloepfer gave to defendant an order for the installation of a service pipe. The written part of the agreement of defendant with customers similarly situated and with Kloepfer was as follows:

“If a gas range is put in use on said premises within thirty (30) days from the time said connection is made, 70 feet of the connection beginning at the curb line will be run at the expense of the North Shore Gas Company, all in excess of 70 feet, the subscriber agrees to pay for at 14(¿ per.foot for connections % to 1% inches in size. If a gas range is not put in use within the time above specified, the subscriber agrees to pay the above rates for the full measurement of the service pipe from the curbline to the basement of the building.”

Willow Road was a paved highway 15 to 18 feet wide. On the north side of the road 14 feet and 3 inches from the greenhouse building on the premises, a shut-off box was placed. From the shut-off box running in a northerly direction, the defendant, in February or March, 1917, pursuant to the above agreement with Kloepfer, installed a % inch black wrought iron pipe . 140 feet 2 inches long, from the shut-off box to the point where it entered the service building of plaintiff. Between the west line of the building and the west line of the lot is a vacant space 6 feet wide. This service pipe was laid 2 feet under the ground and 5 feet 2 inches west of the west line of plaintiff’s service building. It was a connecting pipe from defendant’s gas main on the south side of Willow Road. This pipe ran from the main across the road to the shut-off box. The lots which compose the premises were drained by drain pipes 6 inches in diameter, made of glazed burnt clay material. When or by whom the drainage pipes were constructed does not appear. Since 1917, when the service pipe was installed, it has continuously remained imbedded in the ground, and during all the time the different owners of the premises (from Kloepfer to plaintiff) have received gas from defendant, delivered into that part of the service building used by the different occupants as a dwelling. The defendant never made an inspection or examination of the pipe, nor was it ever asked to do so by any occupant until plaintiff made that request on February 6, 1935. It is stipulated that pipe of this nature and thickness, imbedded in the ground at a depth of approximately 2 feet without protection or covering, will in the course of 13 to 20 years, rot, corrode and perforate. It is also agreed that illuminating gas of the kind manufactured by defendant contains an ingredient known as ethylene or hydro-carbon, and that such gas in small quantities is injurious to plant life, and when gas escapes it will diffuse itself along the lines of least resistance in any direction; that on or about February 6,1935, gas being transmitted through the service pipe for use and consumption by plaintiff escaped through the service pipe and diffused itself along the lines of least resistance into the tile drains of plaintiff and entered into the greenhouse, damaging the plants to the amount for which judgment was rendered. It is agreed that any damages sustained by plaintiff were due to the escape of illuminating gas through the service pipe.

The premises were used for a greenhouse prior to the time when plaintiff acquired his title, and plaintiff continued to conduct on these premises a florist business down to February 6, 1935, on which date plaintiff first had knowledge that damage was being caused to his plants. Plaintiff had no knowledge of the location of the service pipe. He telephoned defendant and within 20 minutes after defendant received the call it had two men at plaintiff’s place of business. They inspected the premises but did not detect any odor of gas. Plaintiff requested defendant to make further inspection. Defendant then barred the ground on the west side of plaintiff’s greenhouse by inserting an iron bar in close proximity to the pipe. A foreign odor was detected, and immediately the gas was shut off at the shut-off box in the street. Thereafter a section of the service pipe laid in the early part of 1917, approximately 90 feet north of the south line of plaintiff’s premises, was taken up, a piece about 15 feet in length, and was found to be corroded so that gas passing-through the service pipe could escape therefrom.

On May 29, 1923, plaintiff signed and delivered to defendant an application for gas service as follows:

‘ ‘ George H. Edwards

917 Willow Road,

O ccupation — Florist

Premises — occupied as a home

Last applied — Lake Forest.

Application taken by E. Hurlbert

“The undersigned hereby applies to the North Shore Gas Company for gas service at the above address for a period of one (1) year and thereafter until service is discontinued and agrees to pay therefor in accordance with the Company’s rates from time to time in force and to abide by all reasonable rules and regulations prescribed by the Company governing gas service pipes and installation.

“Gr. H. Edwards

(signature of consumer) ”

The application was accepted by defendant, and defendant continuously thereafter furnished gas to the plaintiff.

The contention of defendant is that plaintiff was the owner of the service pipe; that it had become a part of the real estate, the title thereof passing to plaintiff. Defendant cites authorities to the effect generally that whether such fixtures become a part of the realty depends upon the intention of the parties. Defendant cites Fifield v. Farmers’ Nat. Bank, 148 Ill. 163, to that effect, and we do not question that such is the general rule. However, we think the fair inference from the written order given by Kloepfer under all the circumstances is that the service pipe belonged to the defendant and was its property, but that the owner, under the circumstances, agreed to pay for a part of the expense in putting it in.

The real question here is to determine upon whom, under the evidence, rests the duty of inspection and maintenance of the service pipe. Defendant contends it was upon plaintiff. In the first place, because he was the owner of it, and in the second place, because he was in control of it. The question of who was the owner of the service pipe is not as easy to dispose of as defendant seems to believe. We are not satisfied it was plaintiff, although if Kloepfer, his predecessor in title, was the owner, then the ownership passed to plaintiff by the conveyance he took through his predecessor.' If plaintiff is to be regarded as the owner, it must be by reason of the order given to the gas company by Kloepfer to install the pipe. That agreement, however, is silent on that subject. Defendant furnished the material; it performed the necessary work; so far as the evidence indicates, it laid the pipe according to its own plans, out of material of its own choice, and in a manner of its own choosing. It also appears that the gas company desired the owner of these premises to install a gas range. The evident purpose of this was to create a market for its product. The agreement provided that, if within 30 days from the time the connection was made, a gas range was put in use, 70 feet of the connection, beginning at the curb line, would be run at the expense of the gas company, and the subscriber agreed to pay for the balance at 14<£ a foot. The range was put in and defendant billed the owner for 69 feet of the pipe at 14$ a foot, which would amount to $9.66. This bill, however, defendant never made any serious effort to collect, and apparently voluntarily charged the claim off its books. The inference is that the owner of the premises had become a profitable customer, notwithstanding the cost of a somewhat unusual installation. The service pipe, therefore, was installed at the expense of defendant, according to its own plans, as a part of its design and purpose to create a market jfor its product. To that end the then owner gave to defendant the privilege of laying the pipe on the land, with the purpose in view, so far as the owner was concerned, that he might enter into contractual relations with the defendant for the sale of gas to him. Defendant at once entered into contractual relations with the owner, and the same contractual relationship was continued with each subsequent owner including plaintiff. The contract with plaintiff called for the payment of the rates prescribed by the company. The service was to continue for one year and thereafter until discontinued. Plaintiff expressly agreed in his application to “abide by all reasonable rules and regulations prescribed by the Company governing gas service pipes and installation.” Whoever may have been technically the owner of the pipe, we hold that in view of the contractual relations which existed between defendant and the owner with reference thereto, the duty of inspection rested upon defendant. It did not in- . spect, but was negligent in that regard. Plaintiff was damaged thereby. It follows defendant is liable.

The parties have cited a number of authorities purporting to state the rule of law in such cases. In 12 R. C. L. 907, sec. 47, it is said:

“A gas company not only must see that its pipes and fittings are of such material and workmanship and are laid in the ground with such skill and care that gas will not escape therefrom when new, but it must maintain such a system of inspection as will insure reasonable promptness in the detection of leaks that may occur from the deterioration of the material of the pipes or from any other cause within the circumspection of men of ordinary skill in the business; and a failure to take such precaution is negligence.”

In Maton Bros., Inc. v. Central Illinois Public Service Co., 269 Ill. App. 99, affirmed in 356 Ill. 584, this court approved the rule announced in 28 C. J., sec. 58, page 592:

“A gas company must use due and reasonable care in the inspection of its pipes to insure reasonable promptness in the discovery of leaks that may occur from defects in or deterioration of pipes and valves from careless or wrongful meddling with its works on the part of others or from any other cause within the circumspection of men of ordinary skill in the business.”

Defendant, however, relies upon Clare v. Bond County Gas Co., 356 Ill. 241, and Smith v. Pawtucket Gas Co., 24 R. I. 292; Middleton v. De Kalb County Gas Co., 168 Ill. App. 353, and contends that, under the rule of law laid down in these cases, it is not liable. The case most relied upon is Clare v. Bond County Gas Co. We do not understand the law as stated in that case to be contrary to that laid down in the above authorities. In the Clare case the plaintiff sued to recover damages, which were the result of an explosion of gas in a building occupied by her as a tenant, in which she conducted a gift and book shop. The building had been piped for gas about 25 years previously. The plaintiff desired to heat her shop with gas and hired a plumber to install a gas stove which she obtained from defendant. After its installation she noticed an offensive odor; she notified the president of the gas company who, with the plumber, examined the premises, and came to the conclusion that the odor was caused by fumes of burned gas. He recommended that a pipe be extended from the stove to the flue to carry off the fumes; this was done, but the trouble continued. Again, upon the suggestion of the president, the flue was cleaned, the pipe cemented to it, and the height of the flue raised in order to remedy the trouble. There was no improvement. The plumber made three inspections but found nothing wrong. The stove was located in the north room, and the meter in a closet on the west side of the south or front room; the curb box of the gas company was located in the street about 7 feet from the front of the building; from that point the pipe to the meter extended under the sidewalk into the floor of the building. It then turned up to the meter connection. There was no basement under the building. The pipe from the curb box into the building belonged to the owner of the building and not to the gas company. The president of the company tested the meter and the connections with a lighted match on the day it was installed. Afterward he and the plumber tested the meter to ascertain if there was any leak. Several weeks afterward Horace Williams, a friend of the plaintiff in charge of the shop, was searching for a screw driver; he opened the door of the closet, holding a lighted match in his hand, and the explosion which caused the damage complained of took place. It was afterward discovered that the pipe under the floor contained holes caused by rust which allowed the gas to escape. It was natural gas. The court, after stating the rule as to the duty of the gas company to shut off the gas supply when it has knowledge that gas is escaping, said:

“The law is equally well settled that where a gas company does not install the pipes or fixtures and does not own them and has no control over them it is not responsible for their condition or for their maintenance, and as a result is not liable for injuries caused by a leak therein of which it has no knowledge. . . . In the absence of notice of defects it is not incumbent upon a gas company to exercise reasonable care to ascertain whether or not service pipes under the control of the property owner or the consumer are fit for the furnishing of gas. As a general proposition, a person’s duty can extend no further than his right, power and authority to carry it out. It cannot be seriously urged'that the employees of a gas company have the right to go upon the premises of one of its customers for the purpose of inspecting his pipes or other fixtures except upon the invitation, license or permission of the owner.”

The facts in that case are, we think, clearly distinguishable from those which exist here, in that these pipes were not under the control of the property owner but of the gas company, and were and had been for many years used by the gas company with the consent of the owner for the purpose of conveying the gas to the owner’s premises where it was to be used. The contractual relations of the parties were such, irrespective of the ownership of the pipe, that the duty of inspection was on the defendant. Inspection indeed was within its particular province and in the line of its business. On the facts stipulated, we hold that defendant is liable and the judgment is affirmed.

Affirmed.

O’Connor, J., concurs.

McSurely, J., dissents.


source: Caselaw Access Project

author: Mr. Justice McSubely

license: Public Domain

text:
    Edward O’Donnell, a Minor, by Bessie O’Donnell, his Mother and Next Friend, Appellee, v. City of Chicago, Appellant.
    Gen. No. 39,078.
    Opinion filed February 15, 1937.
    Rehearing denied March 1, 1937.

      Babnet’ Hodes, Corporation Counsel, Quin O’Bbien, A. M. Smietanka, Samuel Allen and Adam E. Pattebson, Assistant Corporation Counsel, for appellant.
    John A. Bloomingston, of Chicago, for appellee.
   Mr. Justice McSubely

delivered the opinion of the court.

Edward O’Donnell, hereafter called plaintiff, nine years of age, was injured when his hand came in contact with a wire charged with electricity, used for lighting street lamps, at the top of a steel pole on a public highway maintained by the defendant; he brought suit and had a verdict for $2,500. Defendant appeals.

Plaintiff alleged that defendant negligently maintained an insufficiently insulated electric light wire charged with a high voltage at the top of a steel pole with crossarms or steps for climbing the pole, in a public thoroughfare in close proximity to an athletic stadium, so as to attract children, inducing them to climb the pole, and that by reason of maintaining such attractive nuisance plaintiff received injuries of which he complains. Defendant asserts that the pole did not constitute an attractive nuisance and that defendant was not negligent as charged.

Boxing matches are held at an open air stadium, in Chicago, surrounded by a fence 10' or 12 feet high; on Lyndale street, immediately north of the stadium fence, is a line of electric light poles 25 feet high carrying wires used in lighting the streets; upon this occasion plaintiff, nine years old, of average intelligence, hearing that there were boxing matches in the stadium in the evening, went with two other boys of about the same age to see the fights; plaintiff had never been there before; the electric light poles were easy to climb; plaintiff climbed one of these poles by putting his hand into a hole about six inches in diameter on the side of the pole and pulling himself up until he could reach the steps, when he continued on up to the top where he had a view of the prize fight then going on in the stadium; the wires were not insulated so as to prevent a shock to persons touching them but were insulated only against the weather; plaintiff’s hand came in contact with one of the wires or the covering of the lamp at the top of the pole, burning his left hand and throwing him to the ground, injuring his skull. There was evidence that every time there was a boxing bout in the stadium boys climbed this pole, and that this had been going on for nearly three years before; sometimes there would be seven or eight children on this pole.

Defendant argues that the evidence fails to show that the pole itself was the attractive thing but that the prize fight within the stadium was the alluring object. An instrumentality may come within the attractive nuisance rule if it is so placed as to be part of a general environment which is attractive to children. Here the location of the pole gave a vantage point from which to watch the events within the stadium. In Oglesby v. Metropolitan West Side El. Ry. Co., 219 Ill. App. 321, we held that the mere fact that an instrumentality is not in and of itself particularly attractive to children would not exclude it from the application of the attractive nuisance doctrine, and that the question in such cases was whether the owner maintained instrumentalities which, because of their location, could reasonably be expected to attract children.

The rule has been well stated in Consolidated Elec. Light & Power Co. v. Healy, 65 Kan. 798, where electric light wires defectively insulated ran along on timbers projecting from the side of a bridge; small boys were in the habit of climbing over the railing near the wires and one of the boys came in contact with one of these wires and was killed; his parents recovered a judgment for damages, which was affirmed by the Supreme Court. In the opinion the court pointed out that the electric light company did not maintain the bridge and the railing which constituted an attractive climbing place for boys, but the wires were maintained in such immediate proximity to that which was attractive as to constitute them a part of the whole situation. The court said: “It put its wires within the attractive environment. It identified itself in that way with the attractive place. If one maintains a dangerous instrumentality on his own premises immediately against the premises of another, and within the sphere of the attractive influence of something on the latter, and a third one, venturing on the latter, is injured by coming in contact with the former, he would seem entitled to recovery.” In McKiddy v. Des Moines Elec. Co., 202 Iowa 225, the electric light pole climbed by the boy who received a fatal electric shock was located on the bank of a river; it was there claimed that the pole was not the attractive nuisance, but the court held that it was so located that the jury could properly find that it was naturally attractive to a boy as it was “located upon the edge of a river bank, where a more extended view up and down the river could be obtained from the cross-arms, as well as a view over a portion of the city.”

Defendant seems to rely largely on Burns v. City of Chicago, 338 Ill. 89, but as pointed out in the later case of Wolczek v. Public Service Co., 342 Ill. 482, involving-injury to a minor climbing towers carrying* high voltage electric wires, the court noted that it was held in the Burns case that the pole was not the attraction, but that the wager made between the plaintiff and other boys to climb it was the inducement.

The pole in the instant case was in the public street, therefore plaintiff was not a trespasser, and the jury could properly conclude that because of its nearness to the stadium and its position from which to view the prize fights without paying an admission fee it constituted an attractive nuisance.

The evidence shows that the wires were insulated only against the weather and not so as to protect against shock a person touching them. We are of the opinion the defendant had notice of the character of the insulation.

Defendant suggests that the court made remarks prejudicial to the defendant. We do not so read them. In any event defendant made no objection to them.

We see no reason to reverse the judgment and it is affirmed.

Affirmed.

Hatchett, P. J., and O’Connor, J., concur.


author: Mr. Justice McSurely

text:
    Peter Geiken, Appellant, v. Chicago Great Western Railroad Company, Appellee.
    Gen. No. 39,207.

      Opinion filed February 15, 1937.
    Royal W. Irwin, of Chicago, for appellant.
    Winston, Strawn & Shaw, of Chicago, for appellee; Harold A. Smith and Douglas C. Moir, both of Chicago, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff brought suit under the Federal Employers ’ Liability Act to recover damages for injuries sustained while working for the defendant; at the close of all the evidence the court instructed the jury to find the defendant not guilty, and plaintiff appeals.

The complaint charged that defendant negligently furnished plaintiff with a spike maul which was dangerous and defective in that the head of the maul was too highly tempered and brittle, and that in using it there was danger of chips and particles flying off it, and that while using- it a chip flew off striking plaintiff in the left eye.

April 25, 1932, plaintiff was employed as a section-hand by defendant; at this time he was with one of his crew (Rakow) repairing- a joint in the rails; Rakow was holding a claw bar up against a spike and plaintiff struck the bar with a spike maul; plaintiff testified that when he struck the claw bar a piece of steel flew from the spike maul striking his left eye, resulting in loss of sight in this eye; he testified that prior to this there were no apparent defects in the maul but after the injury he noticed there was a chip broken off from the face of the maul. This is somewhat at variance with a statement signed by him in which he said he had made no examination of the maul but that Rakow had told him he thought the chip came from the maul.

There are at least three reasons justifying the order of the trial court directing a verdict for the defendant. Mr. Cordon, testifying as an expert witness for plaintiff, said in substance that if there was no mushrooming or flattening out of the face of the maul and chips occurred on the edge of the face of the maul, it would indicate that the maul was too hard or the grain structure was brittle. The spike maul was introduced in evidence and is an exhibit before us. Inspection of it shows that the face is slightly mushroomed which, as the undisputed testimony shows, is consistent with a properly tempered maul. All of the expert testimony is to the effect that a mushroomed maul indicates proper tempering and no mushrooming indicates the application of a too high degree of heat with resulting hardness of the face of the maul, which is then likely to chip off.

All of the . expert witnesses agreed that the Brinell test of the spike maul would indicate whether it was properly tempered, and that passing this test successfully indicates proper tempering and the proper degree of hardness. Mr. Akin, a metallurgist, testified as an expert for defendant that in February or March, 1933, he made a Brinell test for hardness of the spike maul in question and that the test showed the proper degree of hardness; he also testified that he made a microscopic examination of the maul and found that the grain structure was medium fine, which is suitable for a spike maul.

Counsel for plaintiff argues that the court improperly admitted evidence of the Brinell test, claiming that the maul was not in the same condition when tested as at the time of the accident. The maul was introduced on behalf of plaintiff who identified it as being the same maul and in the same condition with certain exceptions which he indicated. Plaintiff’s counsel suggests that the maul had been reheated or its temper changed in some way, but this is only surmise; there is no evidence whatever of any change in the temper of the maul.

It is not the law that exhibits must be identically the same as at the time of the accident. If slight changes are pointed out, as plaintiff did in the instant case, the exhibit is properly admitted. Chicago & E. I. R. Co. v. Crose, 113 Ill. App. 547. Moreover, the maul was in evidence without objection.

The uncontradicted evidence shows the defendant purchased the spike maul in question from the Warren Tool Co., which has manufactured and sold between 300,000 and 400,000 spike mauls in the last 10 years to virtually every railroad company in the country; it is the standard practice of this company to subject mauls to every degree of heat and to subject them to 3,000 full swinging blows. The vice president of this company testified that in the hardening and tempering process the company is endeavoring to get a tool that will fit the demands in the particular industry and that they are attempting to get a steel that will show a Brinell test of certain standard specifications which the railroads require.

The evidence shows that the maul in question was purchased in the usual course of business and there is no evidence of any negligence by defendant in this respect. Under such circumstances there can be no liability upon the defendant. In O’Hara v. Brown Hoisting Machine Co., 171 Fed. 394, the plaintiff sustained an injury to his left eye by a piece of steel flying from a hammer with which he was striking a chisel, an accident much like that in the instant case; the court denied a recovery for the plaintiff saying “that the sledge in question, together with many others, was obtained by the defendant from a tool manufacturing company of high standing, and there is nothing to indicate that when purchased it was not in all respects sound and perfect,” and that there was no evidence that any of the representatives of the defendant had, prior to the accident, any knowledge or suspicion that the sledge was in any way unsafe or defective. A similar accident was involved in Middleton v. National Box Co., 38 F. (2d) 89; there the defective instrument was a chisel; the court entered judgment for the defendant, holding* that there was no negligence shown upon the part of the master which caused the injury, and that if the chisel was improperly tempered the defendant had no knowledge of this superior to that of the plaintiff. In Stankowski v. International Harvester Co., 180 Ill. App. 439, the plaintiff was injured in the eye by a chipping from a chisel; the court reversed a judgment for the plaintiff, holding that the employer has performed his duty when he- exercises reasonable care to see that the tools furnished the employee are reasonably safe and sound. In Herricks v. Chicago & E. I. R. Co., 257 Ill. 264, the plaintiff was injured in the eye by a piece of steel off a hammer; the court held defendant not liable, saying:

“It is the law that the master is not liable for a defect in a simple, ordinary tool procured and provided in the ordinary way. It is one of the essential facts to be proved by a servant seeking to recover on account of a defective tool or appliance, that he did not know of the defect and had not equal means with the master of knowing it; (Goldie v. Werner, 151 Ill. 551;) and as to a simple tool the opportunities of the servant for knowing* of the defect are at least equal to those of the master. If the tool is procured by the master from another and there is a latent defect, neither one would know of it and the master would not be liable, and if there is a patent defect the servant has as good an opportunity to know of its existence as the master. This rule includes all common tools and appliances, such as hammers, wrenches, axes, hoes, spades and ladders. (Citing cases.) Neither is the master bound to inspect simple tools furnished to his servant to discover whether defects appear in the course of their use. (Citing cases.) If any defect should appear in the course of use of such tool, the servant using it would have a better opportunity to discover it than the master. ’ ’

Plaintiff says that defendant should have made tests of the maul before permitting its employee to use it. An inspection of the maul shows that such tests as are suggested would destroy its usefulness, as such tests require cutting pieces from it. Cases where it has been shown to be impracticable to apply tests which impair the usefulness of the implement are Taylor v. Centralia Coal Co., 155 Ill. App. 324, and Eaton v. St. Louis & N. R. Co., 173 Ill. App. 431.

Cases cited by plaintiff involve wholly different facts. Schillinger Bros. Co. v. Smith, 225 Ill. 74, involves the negligent construction of a scaffold. Hess v. Rosenthal, 160 Ill. 621, involves a cover of a vat improperly placed.

A spike maul is a tool, and in Buaso v. Wells Bros. Co., 167 Ill. App. 574, where it was held that a sledge hammer was a simple tool, the court held that the inspection by an employer does not extend to such simple tools. See also Chesapeake & O. Ry. Co. v. Kuhn, 284 U. S. 44. And in Cincinnati, N. O. & T. P. Ry. Co. v. Burton, 184 Ky. 2, plaintiff sustained an eye injury through a small steel chip or scale; the court held that a verdict should have been directed as it was a matter of common knowledge that when a steel hammer is used with great force upon another steel implement small chips are likely to break off. See also Osborn v. Chicago, R. I. & P. Ry. Co., 1 S. W. (2d) 181.

As the plaintiff failed to prove that the maul was improperly tempered and the evidence shows without contradiction that it successfully passed the standard test, the Brinell, and that the manufacturer from which defendant purchased it was a reputable concern which used a high degree of care in the manufacture of its mauls, he failed to show any negligent act or omission by the defendant causing the injury, and the trial court properly directed a verdict for defendant.

The judgment is affirmed.

Affirmed.

Hatchett, P. J., and O’Connor, J., concur.


author: Mr. Justice MoSurely

text:
    Anna Borovicka, Appellant, v. Bankers Indemnity Insurance Company, Appellee.
    Gen. No. 39,216.
    Opinion filed February 15, 1937.
    Rehearing denied March 1, 1937.
    Hopkins, Starr & Godman, of Chicago, for appellant; John L. Hopkins, James A. Sprowl and George E. HcHurray, all of Chicago, of counsel.

      Cassels, Potter & Bentley and Hinshaw & Culbertson, all of Chicago, for appellee; Ralph F. Potter and George C. Bunge, both of Chicago, of counsel.
   Mr. Justice MoSurely

delivered the opinion of the court.

Plaintiff, as beneficiary in an accident policy issued by defendant to her husband, brought suit alleging the accidental death of the insured; upon trial the jury returned a verdict for $5,000' with interest. Thereafter the court allowed defendant’s motion for a directed verdict for a lesser amount and judgment was entered against defendant for $2,176; plaintiff appeals.

Defendant’s position is that the insured was killed by performing a hazardous act not pertaining to his occupation as stated in his application for insurance, hence defendant is liable for $2,000 only, the amount of liability assumed in the policy for the greater hazard. Plaintiff’s theory is that the insured met Ms death wMle doing an act pertaining to Ms occupation, hence defendant is liable for the face amount of the policy.

In the application for insurance the insured gave his occupation as florist, his duties as “counter and supervising”; that he was the owner of the Winnetka Flower Shop; that he operated an automobile; and to the question whether the automobile was operated “for business or pleasure,” answered “Both.”

The insured was accidentally killed May 26, 1934, when a light delivery truck he was driving* overturned. The decision of this case must rest upon the interpretation and application to the facts of the following provision of the insurance policy:

“1. This policy includes the endorsements and attached papers, if any, and contains the entire contract of insurance except as it may be modified by the Company’s classification of risks and premium rates in the event that the Insured is injured after having changed his occupation to one classified by the Company as more hazardous than that stated in the policy, or while he is doing any act or thing pertaining to any occupation so classified, except ordinary duties about his residence or while engaged in recreation, in which event the Company will pay only such portion of the indemnities provided in the policy as the premium paid would have purchased at the rate but within the limits so fixed by the Company for such more hazardous occupation.”

The insured owned and conducted the business of florist, operating a greenhouse and a store in Winnetka; he did a general florist business, planting flowers, laying out and maintaining g’ardens at the homes of customers; the busy seasons were in the spring* and fall of each year and he employed from four to 15 persons, depending on the season; the insured would arrive at his greenhouse about seven o’clock in the morning and assign his employees to their jobs for the day; he personally supervised the men in this work, marking out the line of flower beds and advising* them where to place the plants; his greenhouse was about 13 miles from bis store and in going to and from these points and the places where the men were working he generally used a passenger automobile; he also owned a Ford light delivery car, which was used in his business, and also a heavy dump truck. The evidence shows he never drove the heavy truck but employed a regular driver for this who had worked for him for many years; when the insured went to supervise a job he used either the sedan or the light delivery car, sometimes taking along some plants in, tended for the job; the driver of the truck made 95 per cent of all deliveries from the shop and 75 to 85 per cent of all deliveries to garden jobs; the insured’s sons also made deliveries in the Ford car; the insured seldom made special trips to deliver goods, and then only because of a rush order that the truck driver could not take; during the busy season the insured drove the Ford delivery car for one purpose or another as often as once a day, but only rarely during the rest of the year; this included trips to and from the nursery and from his planting jobs, with an occasional delivery.

January, 1929, an insurance qgent of defendant solicited the insured for accident insurance; the agent wrote down the answers on the application blank and the insured signed it; the agent had written automobile insurance for the insured and had known him for many years and had seen him drive the Ford delivery car; the policy was issued in January, 1929', and the annual insurance premiums were paid.

May 26,1934, the date of insured’s death, two of his employees were working upon the premises of a customer, setting out plants; the insured left the shop in Winnetka in the morning in the Ford delivery car, which was loaded with geraniums, most of them to be used on this job; the accident occurred at about 6:30 o’clock in the evening when insured left this job and was going to another place to malee delivery of two or three boxes of geranium plants there; apparently the delivery car skidded on a country gravel road and overturned, injuring the insured so that he died.

Defendant says that the evidence shows that while driving the Ford delivery truck the insured was performing an act that did not pertain to his occupation and hence was injured while doing an act pertaining to an occupation classified in the policy as more hazardous; that the occupation of driver of a light delivery car is classified as hazard “E” and the policy provides that the limit of liability for class ‘ ‘E ” is $2,000; hence, defendant argues, the trial court properly directed a verdict for the smaller amount. Plaintiff argues that the quoted provision in the policy means that the' smaller amount is to be paid only when the insured is injured in doing an act not pertaining to Ms stated occupation, and says that driving a light delivery car with plants was an act which pertained to his occupation as a florist whose duties were both at the counter and “supervising.”

Similar provisions in insurance policies have been considered by the courts in many cases. The identical language was under consideration in Indemnity Ins. Co. of North America v. Sloan, 68 F. (2d) 222. In that case the insured was classified as the general manager of a glass manufacturing company; he undertook to polish certain samples of glass work which a customer desired delivered promptly; some acid accidentally splashed in his eye, destroying the sight. The court analyzed the clause of the policy with great particularity, citing a large number of cases, and it was held that the classification intended by this provision related to a vocation and not to an occasional act aside from the insured’s occupation but which pertained to such occupation; that whether the act in that case of polishing the glass pertained to the insured’s occupation was a question of fact for the jury, and the court affirmed the judgment on the verdict. In Smith v. Massachusetts Bonding & Ins. Co., 179 N. C. 489, the insured in his application stated that his duties were supervision of construction work of towers and pole lines for the power company; in his application he stated he was “foreman and supervisor, having overseeing duties only”; he was on a tower instructing the linemen as to their work and in doing- so cut a wire, receiving a shock that resulted in his death; it was argued by the insurance company that the act done by the insured pertained to the more hazardous occupation of “lineman” and the amount of liability should be reduced under a liability clause identical with that in the present policy. The court construed the policy to cover an injury caused by the doing of an act within the line or scope of the insured’s employment and held that the smaller amount of insurance should be paid only if the act is the more hazardous act of another occupation not pertaining to his own. The opinion said: “Any other construction would make the policy a deception and a snare. The one we adopt is a reasonable interpretation of the language used, and the only admissible one. Under the other construction the company would be saying to the insured: We accept your risk as a supervisor and overseer, but if you do a certain act, which is essential to the proper and full performance of your duties to your employer, you must forfeit the larger part of your insurance.” In Rex v. Continental Casualty Co., 96 Colo. 467, the insured was classified as general manager-office and traveling- duties only; he was killed while inspecting a quarry belonging to his employer; the insurance company sought to reduce recovery to the smaller amount on the ground that the occupation of inspecting a quarry was in a more hazardous class than the occupation of the insured as stated in the policy; the court construed the provisions of the policy, holding that there was liability for the reduced amount only where the act was not incidental to the insured’s general duties as stated in the policy. To the same effect was the holding in Goetz v. Continental Casualty Co., 245 Ill. App. 350, where the court held that it was a question of fact whether the act done by the insured at the time of his death was related to his occupation as stated in the policy. Among the many other cases involving the same question are Thorne v. Casualty Co. of America, 106 Me. 274; National Acc. Society v. Taylor, 42 Ill. App. 97; Fidelity Health & Accident Co. v. Holbrook, 96 Ind. App. 457, and Elkins v. Aetna Life Ins. Co., 26 F. (2d) 277. The case of Union Mut. Acc. Ass’n v. Frohard, 134 Ill. 228, is interesting- as involving the accidental death of the insured while he was hunting, for recreation; the insurance policy provided for payment according to the occupation of the insured, which was given as a hardware ágent; it was held that the word “occupation” in the policy had reference to the “vocation, profession, trade or calling” in which the insured is engaged and did not preclude him from the performance of acts and duties which were simply incidental to his daily life in any or all occupations.

Defendant cites some cases which it is said hold to the contrary, but the facts in these cases can be distinguished. One such case is Metropolitan Acc. Ass’n v. Hilton, 61 Ill. App. 100, where the insured’s occupation was given as “proprietor of livery — office duties”; he was injured while driving a cab and it was held that this was not such an act as would be included in his office duties.

In National Accident Society, etc. v. Taylor, 42 Ill. App. 97, the court held that supervision of a farm means any work, manual or otherwise, that may be required for keeping it in order. In Schmidt v. American Mut. Acc. Ass’n, 96 Wis. 304, where the facts are similar to those in the instant case, it was held that supervising work is consistent with actually assisting with the work in hand. To the same effect are Business Men’s Assur. Co. of America v. Campbell, 6 F. (2d) 540; Fidelity Health & Accident Co. v. Holbrook, 96 Ind. App. 457, and Smith v. Massachusetts Bonding & Ins. Co., 179 N. C. 489. The conclusion from these cases is that in determining what is supervising any particular business, one must consider its character and the general manner of its regulation.

The insured, in supervising the work of his men in planting on the grounds of his customers, drove from place to place in his automobile, occasionally delivering plants to these jobs in the light delivery car; the jury could properly conclude that in so doing he was engaged in work pertaining to his occupation of supervising, and that the use of the light delivery car when he met his death related to and was part of his occupation as described in the policy.

It is axiomatic that if there is any part of a policy ambiguous or of doubtful meaning it must be construed most strongly against the insurance company. Kaplan v. United States Fidelity & Guaranty Co., 343 Ill. 44, 48; Monahan v. Fidelity Mut. Life Ins. Co., 242 Ill. 488, 493.

Other points are made which we do not think it necessary to discuss. As we have indicated, we construe the provision of the policy which reduces the liability of the company as not applying if the act pertains to the occupation of the insured. This raised a question of fact to be determined by the jury from the evidence. The jury could properly find with the plaintiff in this respect. It follows that the trial court should not have directed a verdict for the lesser amount.

The judgment is reversed and judgment is entered in this court ag*ainst the defendant on the verdict of the jury for the sum of $5,000 plus interest.

Reversed and judgment in this court.

Hatchett, P. J., and O’Connor, J., concur.


author: Mr. Justice O’Connor

text:
    Dorothea MacKown, Appellant, v. Illinois Publishing and Printing Company, Appellee.
    Gen. No. 39,168.
    Opinion filed February 15, 1937.
    Theodore S. Rosenfield, Lee A. Freeman and Harold S. Iglow, all of Chicago, for appellant.
    Edward Gr. Woods, of Chicago, for appellee; Kurt J. Salomon, of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought suit to recover damages claimed to have been sustained by her as a result of using a preparation recommended in an article written by one of its agents and printed in defendant’s newspaper, to eradicate “Dandruff Woes” with which she was troubled. Her amended statement of claim was stricken on motion of defendant on the ground that it did not state a cause of action. The suit was dismissed and plaintiff appeals.

The allegations of the amended complaint in substance are that defendant publishes and circulates a newspaper and its issue of May 9, 1936, contained an article written by one of its agents. The article is set up verbatim and is as follows:

“Effective Remedy for Dandruff Woes

Proves Its Values in Doctors’ Tests

by

Josephine Huddleston.

Dandruff is infectious.

“To clear the scalp of these tiny flakes of dandruff, a drug called resorcin has proved an effective remedy. It is the drug favored in most doctor’s prescriptions for dandruff.

“The formula given below should be filled at the drug store by a registered pharmacist, and not compounded at home. This tonic is not only reliable, it is scientific, having been given to me years ago by a reputable doctor for my own use.

“Since That Time, hundreds of my readers have written to thank me for sending it to them.

“The formula is as follows:

Resorcin.........................20 grains

Bichloride of Mercury............2 grains

Alcohol........................50 per cent

Made into four (4) ounces liquid.

“This tonic should be applied to the scalp daily after a five-minute massage to invigorate the sluggish ducts throughout the scalp.

“Part the Hair, apply a little tonic, then make a second part and apply the tonic. Continue in this fashion until the entire scalp has been covered.

“Repeat daily for one week before shampooing the hair.

“When Shampooing, use the following method:

“To one pint of cold water, add one bar of medicated soap, which has been cut up so it will melt quicldy. Let this simmer over a slow fire until all soap has been melted. When cold the shampoo will be in jelly form.

“Shampoo the hair thoroughly and rinse it thoroughly. Dry it in the sun if you can.

“Repeat the treatment for a second week. Then dispense with the use of the tonic for one week. Examine the scalp daily during this rest period. At the first indication of dandruff returning, resume the tonic applications at once.

“Follow this plan until the scalp remains clear from dandruff for one week with the use of the tonic. ’ ’

It is alleged that plaintiff purchased a copy of defendant’s newspaper, read the article and had the formula filled by a druggist; that she was ignorant of the fact that the formula contained harmful ingredients; that defendant “carelessly, negligently and wrongfully” offered a remedy, the elements of which it knew, or by the exercise of proper care should have known were harmful, injurious and dangerous to one using it as directed; that plaintiff used the remedy and as a result thereof “was caused to suffer severe and permanent injuries and ailments both externally and internally,” etc.

Counsel for plaintiff, in support of her contention that the amended statement of claim states a cause of action, cite McAndrews v. C. L. S. & E. Ry. Co., 222 Ill. 232; Liebold v. Green, 69 Ill. App. 527; National Iron v. Hunt, 192 Ill. App. 215; People v. Kane, 205 Ill. App. 32; Shoninger Co. v. Mann, 219 Ill. 242; Pennsylvania Co. v. Backes, 133 Ill. 255; Creedon v. Automatic Voting Machine Corp., 276 N. Y. Supp. 609.

In the McAndrews case the plaintiff, an employee of the Illinois Steel Company, brought an action to recover damages for personal injuries against a railroad company for negligently causing one of its locomotive engines to collide with a freight car plaintiff was unloading, as a result of which he was injured. Counsel cite this case because it states the three elements which must unite to constitute actionable negligence.

The Liebold case, 69 Ill. App. 527, was a suit to recover damages for personal injuries brought by a servant against his master on the ground that the master failed to provide the servant with a safe place in which to do his work, and negligently directed him to do his work in such a manner that he was injured. It was held that the declaration stated a cause of action. We think it obvious that neither of these two cases throws any light on the question before us for decision.

In the Hunt case (192 Ill. App. 215), plaintiff purchased certain materials in reliance upon a certificate of test and examination made by defendants who were expert in that line. Such certificates were generally recognized by the trade as fixing the character and value of the materials tested. The materials were much inferior to what the certificates stated, and it was held that plaintiff was entitled to recover from the experts damages sustained although it purchased the materials from another. The court there said (p. 219): “It is apparent that there is no privity of contract between plaintiff and defendants, and were there no exception to the general rule that where there is no privity there is no duty, there would of course be no breach with ensuing liability. But there is an exception to this general rule, which seems to be this, that where a person undertakes to do an act or discharge a duty by which the conduct of another may be properly regulated and governed, he is bound to perform it in such a manner that those who are rightfully led to a cóurse of conduct or action on the faith that the act or duty will be duly and properly performed shall not suffer loss or'injury by reason of his negligence.” In that case the certificates were issued by experts in that line, and were made for the use and benefit and at the request of the users and dealers in material inspected and were relied upon by the plaintiff when he purchased the material, while in the instant case the article which is the basis of the suit does not purport to be written by a physician who would be considered an expert, but by one who did not purport to be an expert because she states in the article that the formula had been given to her “years ago by a reputable doctor” for her own use, and that since that time hundreds of her readers have written to thank her for sending it to them.

People v. Kane, 205 Ill. App. 32, was an action brought by the People to recover fines and penalties on the ground that defendant was practicing medicine without a license, contrary to the statute. In that case the defendant advertised and professed to diagnose diseases and heal persons, and it was held that he was practicing medicine within the meaning of the statute while in the case at bar the person writing the article is passing on to her readers a formula given to her by a physician.

In the Mann case (219 Ill. 242) it was held that a landlord who rents different parts of his building to several tenants, reserving the elevators, halls, etc., for the common use of his tenants, is under an implied duty to use reasonable care to keep them in safe condition, and that he is liable for injuries to persons lawfully in the building which result from his failure to perform his duty.

The Backes case (133 Ill. 255) involved the doctrine of master and servant. We think it clear that the last two cases are not in point.

The Creedon case (276 N. Y. S. 609) was a suit brought by Creedon who was a candidate for assessor, against the voting machine company which set up voting machines to be used in the election, alleging that the machine company had not properly set up its machines so that the votes were not properly recorded, as a result of which the canvass of the votes showed other parties elected when it should have shown that plaintiff was elected; that plaintiff was obliged to resort to court and was put to expense which he sought to recover. It was held that the complaint stated no cause of action. Counsel cite this case and quote from it the following (p. 611): “It is undoubtedly true that a person may owe two separate and distinct obligations in respect to the same thing, one of a personal nature to a particular individual growing out of a peculiar relation to him; the other of a general character to those who would necessarily be exposed to risks or danger through the negligent discharge of such duty.” In that case the court reviewed a great many authorities, among which is Jaillet v. Cashman, 115 Misc. 383, and said (p. 615): “In Jaillet v. Cashman, 115 Misc. 383, 189 N. Y. S. 743, affirmed in Id. 202 App. Div. 805, 194 N. Y. S. 947, and in Id., 235 N. Y. 511, 139 N. E. 714, it was held that an action would not lie against an association engaged in the business of supplying its subscribers with current news by a ticker service, in favor of a member of the public who, upon seeing such a report in a broker’s office, which turned out to be erroneous, sold his stocks at a loss, because there was no privity between the plaintiff and the defendant; the former being but one of the public to whom all news was liable to be disseminated.”

In McNevins v. Lowe, 40 Ill. 209, cited by defendant, a patient brought suit against a physician and surgeon to recover damages for malpractice. He had a judgment which was reversed by the Supreme Court on account of a faulty instruction. The court there said (p. 210): “If a person holds himself out to the public as a physician he must be held to ordinary care and skill in every case of which he assumes the charge, whether in the particular case he has received fees or not. But if he does not profess to be a physician nor to practice as such, and is merely asked his advice as a friend or neighbor, he does not incur any professional responsibility. ’ ’

In the instant case the person writing the article in question did “not profess to be a physician,” but merely told her readers what her doctor had theretofore done for her in curing her of dandruff.

In Higgins v. McCabe, 126 Mass. 13, plaintiff engaged the defendant, a midwife, practicing in Boston, to deliver plaintiff’s child. While attending the baby it was discovered that its eyes were infected; the midwife said she had an effective remedy and that it was not necessary to call a doctor. Afterward the baby’s eyes became worse and a physician was summoned, but the baby lost the sight of. both eyes. Suit was brought on behalf of the child. There was a directed verdict for the defendant, which on appeal was affirmed. The court said (p. 19): “The defendant was a midwife; the jury would not be justified in finding that she claimed to possess, or might reasonably be expected from her calling to have, the peculiar knowledge, skill, and experience of an expert in such matters. The representations of the defendant, that she could cure the child with simple remedies and washes, that she had cured other children in the same way who were similarly afflicted, and that there was no need of a doctor, were but the expression of an opinion as to the efficacy of her remedies, and did not imply that she undertook to use that higher skill of the medical profession which is required in the treatment of the more complicated and delicate organs. The question was whether she had discharged the duty which she assumed with that §kill which she professed to have, and with that diligence which might reasonably have been expected of her. Upon that question, the fact that the service was rendered without compensation must have an important, if not decisive, bearing. ... A physician must apply the skill and learning which belong to his profession; but a person who, without special qualifications, volunteers to attend the sick, can at most be only required to exercise the skill and diligence usually bestowed by persons of like qualifications under like circumstances. To hold otherwise would be to charge responsibility in damages upon all who make mistakes in the performance of kindly offices for the sick.”

So, in the instant case, the person writing the article purported to pass along- to the reading public the formula she had obtained from a reputable physician and which she said had benefited her and many others. There is no allegation, nor is there any contention, that the article did not speak the truth. Plaintiff may have been allergic to this remedy.

In Jaillet v. Cashman, 189 N. Y. S. 143 (115 Misc. 383), affirmed by the Appellate Division and by the Court of Appeals of New York, as appears from the Greedon case above quoted from, an association engaged in the business of supplying to its subscribers current news known as a ticker service, incorrectly reported the effect of a decision of the United States Supreme Court, which report the plaintiff saw on the ticker in a broker’s office, and in reliance thereon sold stock, it was held that the plaintiff could not recover losses he thereby sustained. The court there said (p. 744): “There is moral obligation upon every one to say nothing that is not true, but the law does not attempt to impose liability for a violation of that duty unless it constitutes- a breach of contract obligation or trust, or amounts to a deceit, libel or slander. Theoretically a different rule might be logically adopted, but as a matter of practical expediency such a doctrine seems absolutely necessary. There "is no privity between this plaintiff and the defendant. He is but one of a public to whom all news is liable to be disseminated. His action can be sustained only in case there was a liability by the defendant to every member of the community who was misled by the incorrect report. There was no contract or fiduciary relationship between the parties, and it is not claimed that the mistake in the report was intentional. ’ ’ As above stated, this rule was approved by the highest court of New York.

In Courteen Seed Co. v. Hong Hong & S. B. Co., 245 N. Y. 377, it was held that a bank which had agreed to value through its branch bank in a foreign country a credit in favor of plaintiff’s agent, established by a letter of credit issued by another bank, is guilty of no breach of duty to plaintiff in buying- from the agent, after the expiration of the letter of credit, a draft purporting on its face to be drawn on the letter of credit, because in doing so the bank does not act as agent of the drawee, but at its own risk, and owes no duty to the drawee or to its customer. Judge Pound in delivering the opinion of the court said (p. 381): “The court has had to deal recently with cases involving liability for information negligently given. They all rest on the principle that negligent words are not actionable unless they are uttered directly, with knowledge or notice that they will be acted on, to one to whom the speaker is bound by some relation of duty, arising out of public calling, contract or otherwise, to act with care if he acts at all.” This statement was quoted with approval by Chief Judge Cardozo in Ultramares Corp. v. Touche, 255 N. Y. 170, where the court also approved the rule announced in the Jaillet case. It is there said (p. 185): “The antidote to these decisions and to the overuse of the doctrine of liability for negligent misstatement may be found in Jaillet v. Cashman, (235 N. Y. 511 and Courteen Seed Co. v. Hong Kong & Shanghai Banking P. Corp., (245 N. Y. 377). In the first of these cases the defendant supplying ticker service to brokers, was held not liable in damages to one of the broker’s customers for the consequences of reliance upon a report negligently published on the ticker. If liability had been upheld, the step would have been a short one to the declaration of a like liability on the part of proprietors of newspapers.” The court continuing quoted from the opinion of Judge Pound from which we have above quoted.

Under the doctrine announced by Chief Judge Cardozo, we think that the defendant newspaper in the instant case is not liable.

The judgment of the superior court of Cook county is affirmed. '

Judgment affirmed.

Hatchett, P. J., and HcSurely, J., concur.


text:
    The Moody Bible Institute of Chicago, Appellant, v. Robert F. Pettibone et al., Appellees. China Inland Mission et al., Appellees and Cross Appellants. Annie S. T. Hanscomb and Louise Thompson, Appellees and Counterclaimants.
    Gen. No. 39,013.

      Opinion filed February 19, 1937.
    Castle, Osborn & Weiss, of Chicago, for appellant; Harper E. Osborn and Albert E. Hallett, Jr., of Chicago, of counsel.
    Frank W. Swett, Wilpred M. Doherty and Yose & Lind, all of Chicago, for cross appellants; Wilpred M. Doherty, of counsel.
    F. F. and J. Y. Norcross, of Chicago, for certain appellees; John Y. Norcross, William Huger and James A. Yelde, all of Chicago, of counsel.
    Thomas C. Strachan, Jr., of Chicago, for cross appellee Grace Osborne.
   Mr. Justice McSurely

delivered the opinion of the court.

The Moody Bible Institute of Chicago, plaintiff, filed its complaint as residuary legatee under the will of Henry S. Osborne, deceased, asking that certain legacies be paid in reduced amounts and the residuary estate then turned over to it, subject to the payment of annuities in reduced amounts to two nieces of deceased out of the income.

China Inland Mission, a corporation, Pacific Garden Mission, a corporation, The McKinley Foundation at the University of Illinois, a corporation, and The Christian and Missionary Alliance, a corporation, are legatees and filed answers claiming that they should be paid at once the balance due on the legacies without any reduction.

The two nieces, Annie S. T. Hanscomb and Louise Thompson, filed answers and counterclaims asserting that the annuities of $2,000 to each provided for them in the will were a charge on the entire estate, both corpus and income, and should be paid to them without reduction in preference to all other legacies.

Grace Osborne, widow of Frank Osborne, a brother of Henry S. Osborne, filed an answer claiming a balance due her as an annuitant of $2,500 with interest, under a provision of the will.

The case was tried before the chancellor on a stipulation of facts and also evidence taken. A decree was entered finding that the annuities of $2,000 to each of the nieces were a charge against both the corpus and income and should be paid in preference to all other legacies; that Grace Osborne was entitled to receive $2,500 with interest; that no payments be made to the above mentioned legatees except upon orders of the court to be thereafter entered from time to time when it should be shown to the satisfaction of the court that such payments can be made without prejudice to the rights of the annuitants; it was also decreed that no payments should be made at this time to the Moody Bible Institute except upon orders of the court to be subsequently entered. Plaintiff has appealed from this decree and the legatees above mentioned have filed their cross appeal.

All' of these appellants argue that the annuities should be paid out of income only and not as a charge upon the corpus of the estate, and the cross appellants further assert that Grace Osborne is not entitled to preference over their legacies. The two nieces and Grace Osborne, a sister-in-law of Henry S. Osborne, argue in support of the decree.

Henry S. Osborne, the testator, was a practicing attorney in Chicago for many years and was associated in the practice of law with his brother Frank; he was greatly attached to his brother’s five children and his wife, Grace Osborne; he treated the children generously and before his death had given them virtually one-half of his estate.

He had an only sister, Helen E. Thompson, mother of the annuitants; in 1883 Mrs. Thompson’s husband became broken in health and the family moved to Kalamazoo, Michigan, in 1885; while they lived in Michigan the testator was almost their sole support; he paid the expenses of the children through college at the University of Michigan, from which Mrs. Hans-comb graduated in 1895, and her sister in 1898; after they graduated both sisters taught school, Louise Thompson until 1918 and Mrs. Hanscomb until 1921; they- received no teacher’s pension after they ceased teaching; their mother, Helen E. Thompson, died in 1917; at the time of the trial, in 1935, Mrs. Hanscomb was 66 years of age and her sister Louise Thompson was 59 years of age.

Henry S. Osborne died February 5, 1914, his wife having pre-deceased him, leaving no children, his will was admitted to probate in April, 1914, and letters were issued to Robert F. Pettibone and Harold S. Osborne, executors; the executors filed the necessary accounts; the final account was filed January 15, 1920, nearly six years after the testator’s death; this account was approved in April, 1920, and the estate then in the hands of the executors was turned over to themselves as trustees and they were discharged as executors; while in the probate court and afterward the trustees paid a considerable portion of the legacies given by the will, and during the entire period, from the date of the testator’s death in 1914 until the filing of this complaint in December, 1933, the annuities were paid to the respective annuitants according to the terms of the will; no objection was made during these 20 years to anything done or omitted to be done by the executors or trustees. All the cash legatees and the residuary legatee by their silence seem to have agreed that the testator had not indicated under what conditions or when the cash legatees should be paid and the balance of the estate turned over to the residuary legatee.

Plaintiff argues that the cash legatees should have been paid in November, 1919, when there was sufficient cash for this purpose in the hands of the trustees, and that then the balance should have been paid over to it. The cash legatees, on the other hand, assert that the trustees were to administer the trust only so long as they could pay the legacies out of the income. The clear language of the will is opposed to either of these contentions. Paragraph 13 of the will provides that the trustees — “may defer any or all the legacies herein provided for or such particular ones as they shall deem right and pay the same or part of the same out of the income to be received from the estate. ’ ’ And it was suggested that certain real estate be sold and the proceeds be used “in paying such of the legacies in whole or in part or pro rata as they shall think best, and that the other legacies or such, or such parts, of them as they shall think best, be deferred and paid out of the net income from the estate. . . . ” The testator did not fix any specific time for the payment of the legacies but left this to the sound discretion of the trustees.

The provisions relating to the annuities are as follows:

“11. Some years ago I divided off and gave to the children of my brother Frank one half of nearly all the property I then possessed and have in some other ways looked after them pecuniarily. They are also otherwise provided for, while my sister and her family and my brother are not. For this reason, and for this reason only, I therefore omit them from the further distribution of property except as herein expressly provided for, although they have and know they have my most tender love and constant prayers.

“12. I give the following annuities to be paid quarterly or at such other periods as those interested may agree upon:

“ (1) To my sister Helen E. Thompson I give five thousand dollars per year for each year of her natural life; and upon her decease, I give to each of her children who shall survive her two thousand dollars per year for each year of such child’s natural life; also an additional one thousand, making in all three thousand dollars per year to the last survivor, from the death of her last sister, for the remainder of such survivor’s natural life.

“ (2) To my brother, Frank S. Osborne, I give two thousand dollars per year for each year of his natural life; and upon his decease I give to his wife Grace one thousand dollars per year for five years thereafter should she live so long and at the end of such five years should she then be living I give her, absolutely, five thousand dollars, her annuity to continue so long as she shall live not exceeding the five years.

“(3) The foregoing annuities I desire to be charged upon my interest in the rentals of the property known as the ‘Open Board Property’, so far as the same will g’o and suggest that if feasible a portion of such rental sufficient for the purpose or for some part thereof be assigned and set off to each annuitant. And for the balance of such annuities I suggest (though I do not direct) that, if it seem wise to my trustees, Bosehill Cemetery stock be set off in trust sufficient so that the dividends therefrom will pay such balance of annuities.”

By paragraph 13 it is provided that the trustees should manage the estate, with power to sell or incumber, and to have all the powers of an absolute owner, and with “the proceeds thereof to carry out the provisions of this will”; that the trustees may defer paying any or all legacies and pay the same out of the income; the testator also suggested that the homestead and certain other properties be realized upon and converted into money and the proceeds applied in paying such of the legacies in whole or in part or pro rata as they shall think best, and that the other legacies or such, or such parts, of them as they shall think best, be deferred and paid out of the net income from the estate, “saving that I desire the annuities to my sister (or her children as the case may be) and to my brother (or his widow should he decease) to be paid from the time of my decease.” Then follows the provision that when the legatees shall have been paid in full the trustees shall convey “all the residue of said estate and property to the Moody Bible Institute of Chicago (charged with the payment of the annuities herein provided for) to be used by it in its work for Jesus Christ, without restriction, and I give, devise and bequeath the same upon the payment of said legacies (not including annuities in said term legacies) to said Moody Bible Institute of Chicago.”

It is well established that whether, under a will, an annuity is payable out of income only or out of principal and income, is always a question of the testator’s intention as shown by the will. And in this connection we quote, as very pertinent, from the old case of Gulliver v. Poyntz, 3 Wils. (Eng.) 141: “Cases in the books upon wills may serve to guide us with respect to general rules in the construction of devises in wills, but unless a case cited be in every respect directly in point, and agree in every circumstance with that in question, it will have little or no weight with the court; who always look upon the intention of the testator as the polar star directing them in the construction of wills.”

However, there are a large number of cases supporting the proposition that where a will contains a gift of legacies and annuities, followed by a general devise of the residue en masse, there is thereby created a charge of both upon the corpus. In Reid v. Corrigan, 143 Ill. 402, a legacy was given to the testator’s niece, followed by a devise of the residue of the estate; it was held that the legacy was a charge upon and payable out of the residuary devise. In Stickel v. Crane, 189 Ill. 211, it was held that it was a rule of property that, if legacies are given generally and the residue is afterward given in one mass, the legacies are a charge on the residuary estate; that this rests upon the principle ■ that the whole estate is considered as one mass; that part of the mass is represented by legacies and that “what is afterward given is minus what has been before given, and therefore given subject to the prior gift.” See also Williams v. Williams, 189 Ill. 500.

This rule with respect to legacies applies also to annuities. This is held in Einbecker v. Einbecker, 162 Ill. 267, 276, where the court said:

“ ‘If there is anything to show' that the corpus is looked upon as entire after the annuitant’s death, . . . it is not liable to make good arrears.’ (Theobald on Law of Wills, p, 637). ‘If there is a direction to set apart a sum of money in order to pay an annuity out of the dividend with a gift over, the annuitant is not entitled to come upon the corpus.’ (Id. p. 636). ‘But if there is a gift of an annuity and a residuary gift, the annuity takes precedence, and the whole loss falls on the residuary legatee.’ (2 Williams on Executors, 9th ed., p. 1212). ‘If there is a clear gift of an annuity, a direction to set a fund apart to secure it, which is to fall into the residue upon the death of the annuitant, does not disentitle the annuitant to have arrears made up out of corpus, since the direction is merely a means to the end.’ (Theobald on Law of Wills, 2nd ed., p. 636). ‘If the capital is given over subject to or after payment of the annuities, the corpus is liable.’ (Id. p. 637).

“If the will provides that a certain sum be paid annually or monthly to the widow, and that, at her death, the residue be divided between, or paid over to, other persons, the intention would seem to be that the capital shall be drawn upon to make up the deficiency in the annuity, or monthly or yearly allowance. In such case, the residue is what is left of the corpus after it has been used for the purpose of mailing up the deficiencies in the annuity. But where the terms of the gift over show that the testator intended the fund to be continued in its integrity during the life of the annuitant, and in that state to go over, the corpus cannot be resorted to to make up a deficiency in the annuity.” This was followed with approval in Gee v. Gee, 204 Ill. 588, where the will charged real estate with the payment of the annuity; the court held that the annuity was a continuing charge upon the real estate until all arrearages of the annuity should be paid and that it was not important “that it is possible the entire value of the real estate may, upon the theory we have adopted,. be consumed in the satisfaction of this annuity. ...” In Wingfield v. Edwards, 277 Ill. 176, it was held that it was not necessary that the will should provide in express terms that the payments of an annuity should be charged upon the land, but such an intention may appear from the language of the will, and that where there is a devise of a residuary estate after prior gifts an intention that the residuary estate shall be charged with the prior gifts is manifest. It is the rule that no specific language need be used in a will in order to create a charge upon real estate. Any words that reasonably indicate the testator’s intention will be held to create such a charge. Sullivan v. Sullivan, 242 Ill. App. 501; In re Estate of Schwartz, 275 Ill. App. 374; Additon v. Smith, 83 Me. 551; Smith v. Fellows, 131 Mass. 20, and Burnet v. Whitehouse, 283 U. S. 148. And in Thompson on Construction of Wills (1928), page 561, the author says:

“There is a substantial distinction between ‘annuities’ and trusts for the payment of income to beneficiaries. Where an annuity is created the annuitant is entitled to the stipulated payments per aiinum, irrespective of the earnings derived from a particular corpus or fund. Where a trust fund is created, however, the beneficiaries are entitled to the entire income earned on the portion mentioned in the will. In the case of annuities, where the income is insufficient, the executors or trustees may encroach upon the principal, even in the absence of specific directions. ’ ’

Page on Wills, sec. 1036, vol. 2 (2d ed.) says:

“One of the chief points of difference in effect between a gift of income and an annuity is, that a gift of income fails if the principal of the estate is not sufficient on investment to pay the income bequeathed; while an annuity does not fail because the net income is insufficient to pay it in full, but is payable out of the principal, unless the principal is disposed of by the will in such a way that the gift thereof is on an equality with the annuity or has priority over it in case of abatement, or unless the will shows an intention to pay the annuity out of the income alone. An annuity is to be paid out of the principal of a residuary gift. Where an annuity is given to a beneficiary, and testator directs his estate to be so invested as to produce such annuity, it is held that in case the income of the estate is not sufficient to pay the annuity in full the principal should be used to pay it. Where a testator directs that a certain fund be so invested as to produce a given annuity, it is held that in case of a deficiency of the income from the fund the principal may be drawn upon.” (Citing* cases.)

Among the many other cases supporting the proposition that an annuity is a fixed amount directed to be paid absolutely and out of the principal if necessary, are Johnston’s Estate, 264 Pa. 71, In re Stewart’s Estate, 255 N. Y. S. 389, In re Anderson’s Estate, 256 N. Y. S. 529, In re Hardy’s Estate, 86 N. J. Eq. 405. In a note appended to this last case, as reported in L. R. A. 1917 E at page 584, it is said: “The fact that the annuitant was a prime object of the testator’s bounty, or that the annuity was evidently intended for the maintenance of the annuitant, is a circumstance strongly tending to show that it was the testator’s intention that the annuity should be paid in full and therefore, if necessary, out of the corpus.” See also 40 Cyc. 1631. Many other cases might be cited.

The cases cited by plaintiff and the cross appellants involve wills where it was clearly expressed that the annuities should be paid out of the income only and not out of the corpus of the estate. Such cases are Einbecker v. Einbecker, 162 Ill. 267, Irwin v. Wollpert, 128 Ill. 527, and DeHaven v. Sherman, 131 Ill. 115.

The provision of the will that “when the legacies shall have been paid in full my trustees shall convey and deliver all the residue” to the Moody Bible Institute of Chicago, “charged with the payment of the annuities herein provided for, ’ ’ simply states the time when the residue shall be conveyed and has no reference to the time when the annuities become a charge upon the corpus of the estate. The words, “charged with the payment of the annuities herein provided for” mean a charge already made upon the corpus and not a charge deferred to the time when the legacies should be paid in full. This is not inconsistent with subdivision 3 of paragraph 12 of the will which suggests that the annuities be charged “upon my interest in the rentals of the property known as the ‘ Open Board Property’ so far as the same will go and suggest that if feasible a portion of such rental sufficient for the purpose or for some part thereof be assigned and set off to each annuitant. And for the balance of such annuities” the testator suggests that if the trustees think best the Bosehill Cemetery stock be set off so that the dividends will pay the balance of the annuities. It is in evidence that the dividends from the Open Board Property would not be sufficient to pay the annuities in full. In fact, at the time of the testator’s death the income from this asset'was $5,000 less than the amount of the annuities. It is also in evidence that the testator sold his Bosehill Cemetery stock about two years before his death, so that no dividends from this stock came into the hands of the trustees.

The testator gave his nieces annuities in order to provide them with support and maintenance, and they were payable at all events, and the trustees in their discretion might defer the payment of the cash legacies in order to insure the payments of the annuities. Bearing upon this is paragraph 11 of the will:

‘1 Some years ago I divided off and gave to the children of my brother Frank one-half of nearly all the property I then possessed and have in some other ways looked after them pecuniarily. They are also otherwise provided for, while my sister and her family and my brother are not. For this reason, and for this reason only, I therefore omit them from the further distribution of property except as herein expressly provided for, although they have and know they have my most tender love and constant prayers.” Obviously, the testator felt an obligation to provide for the family of his brother Frank and the family of his sister Helen. In this provision the testator explains why he has left nothing in his will to the children of his brother Frank, as he has already given one-half of his estate to them, and while they had already been provided for the family of his sister had not, and the testator clearly intended to make provision for them, substantially balancing his gifts to the family of his brother Frank by provisions for his sister’s family.

The language of this paragraph evidences an intention of the testator to provide for his sister’s family. The word “provide,” as is well known, means the furnishing of food, clothing and dwelling, and of all that may be needed to enable a person to live comfortably. Taylor v. Elder, 39 Ohio 535, 539; see also 50 C. J. 828. In order to provide in this manner for his sister’s children the testator must have meant that the annuities for this purpose- must be paid at all events, and continuously, otherwise the provision for them would not be fulfilled.

In paragraph 13 the testator says that the trustees may defer the payment of any or all legacies as they shall think best, but immediately follows this provision with the language, “saving that I desire the annuities to my sister (or her children as the case may be) and to my brother (or his widow should he decease) to be paid from the time of my decease.” This means that while the payment of the legacies could be deferred, the payment of the annuities could not be.

As a general rule, legacies to relatives, who are otherwise unprovided for, are given preference over other legacies to those who have no natural claim on tn« testator’s bounty. Some cases hold to the contrary, but this rule has been applied in Scofield v. Adams, 12 Hun. (N. Y.) 366, where the court said:

“The rule of law enunciated in these (cases cited) is reasonable, as it is natural and in accordance with common sentiments of affection, which cannot be entirely ignored in giving construction to wills. It commends itself to the conscience as just and right. It would be unnatural not to intend special favor in the bestowal of bounties to those who were strong in the affections and dependent upon kind regard. So it will be presumed that legacies for the support and, maintenance of those standing in near relations to the testator, more or less dependent upon his bounty, were intended by him to have preference over others of a general character.”

In Kincaid v. Moore, 233 Ill. 584, 596, it was said that where the controversy is between the heir who is a beneficiary and another beneficiary having no claims upon the testator, that interpretation of the will will be adopted which prefers the kin of the testator to strangers.

The discretion given to the trustees to defer the payment of the legacies was manifestly for the benefit of the annuitants. The testator knew that his sister Helen’s children might live for many years; at the time of the testator’s death the total amount of the annuities to his kinfolk would require a total of $8,000 a year, which would require, at five per cent, a capital fund of $160,000. The estate was inventoried in the probate court at something over $188,000, while at the time of the trial, after partial payment of some of the legacies, the trust estate amounted to something over $50,000; the reason for this shrinkage will be stated later. Under these circumstances the discretion to the trustees to defer the payment of the legacies was in order to preserve a corpus to insure payment of the annuities. This is the only reasonable explanation of the permission to defer the payment of the legacies. Postponing payment would certainly not be for the benefit of the cash legatees, nor would any advantage inure to the residuary legatee from this postponement. The inevitable result of ordering that the cash legatees be paid at once would be the destruction of the annuities to the testator’s nieces. To allow such a result to the two elderly nieces would do extreme violence to the manifest intention of the testator.

Consideration of all the circumstances surrounding the making of the will and applying the law as above stated leads clearly to the conclusion that the annuities are a primary charge upon both the income and corpus of the estate.

The record shows that through the misconduct of trustee Robert F. Pettibone the trust estate has suffered a substantial loss. Pettibone died April 15,1934, and the account filed in his estate shows that securities amounting to $34,000, together with interest, which had belonged to the trust estate of Henry S. Osborne, deceased, were missing. The record shows that some of these securities were cashed by Robert F. Pettibone and deposited in his personal account. The First National Bank of Chicago is now sole successor trustee. Plaintiff argues that the present shrunken condition of the estate is not due to a fundamental insufficiency of assets or to a marked decline, but is due to an actual devastavit by the trustees themselves, and that such loss should, in equity, be borne proportionately by the annuitants, legatees and the residuary estate. A “devastavit” is a mismanagement or misappropriation in an estate resulting in loss. 3 Words and Phrases, 2041. It should be noted that while the estate has now a diminished value of approximately something over $50,000, this may be sufficient to pay not only annuities but also all of the unpaid cash legacies. Mrs. Hans-comb, one of the nieces, is now approximately 68 years of age, and the other niece, Louise Thompson, 61 years. It cannot be told at this time how much longer they will live and how long the annuities will continue. It would therefore be improper to decree an abatement of the annuities because of a devastavit on the assumption that there may be an ultimate deficiency of assets.

The general rule is that losses suffered by an estate in the course of administration must fall upon the residuary legatee. Lewis v. Sedgwick, 223 Ill. 213, and Kincaid v. Moore, 233 Ill. 584. In Clement v. Whisnant, 208 N. C. 167, the will gave a large number of legacies to relatives and to certain charitable organizations, — a school and a church; the executor misappropriated approximately $40,000, with the resulting contest as to whether this loss should fall on the charities or the relatives and friends; the court held that the loss should not fall upon the family, following Silsby v. Young and Silsby, 3 Cranch (U. S.) 249. In Farmers’ Loan & Trust Co. v. McCarthy, 113 N. Y. S. 207, the executor misappropriated part of the estate; the trial court held that the devastavit should be borne ratably by all the legatees and the residuary, but this was reversed on appeal, and the court held that the specific legacies should be paid and that the devastavit did not affect the situation. Buffalo Trust Co. v. Leonard, 154 N. Y. 141. Two of the cases cited by plaintiff were subsequently reversed. See Baker v. Farmer, L. R. (Eng.) vol. 3, 537, and Farmers’ Loan & Trust Co. v. McCarthy, 113 N. Y. S. 207. It is in accord with reason and authority to hold that where an abatement is required because of a deficiency of assets from devastavit or any other cause, the loss falls on the residuary estate.

What we have said with reference to the annuities to the two nieces of the testator also applies to tide provisions of the will with reference to Grace Osborne, widow of testator’s brother Frank.

Paragraph 12 of the will provides:

“I give the following* annuities to be paid quarterly or at such other periods as those interested may agree upon:

“(1) • • •

“(2) To my brother, Frank S. Osborne, I give two thousand dollars per year for each year of his natural life; and upon his decease I give to his wife Grace one thousand dollars per year for five years thereafter should she live so long and at the end of such five years should she then be living I give her, absolutely, five thousand dollars, her annuity to continue so long as she shall live not exceeding the five years.”

The annuity for Frank" Osborne was paid until he died in 1926; after his death the trustees paid his widow, Grace Osborne, five annual payments of $1,000 each and $2,500, being one-half of the final $5,000 payment provided for in the will. The testator has described the payments to Grace Osborne as an annuity, which shall continue not exceeding five years. The provisions for her are quite different from the provisions for the payment of the cash legatees. There is no provision that the payment of this annuity may be postponed, as is the case with reference to the cash legacies. The whole context of the will and the relationship of the parties clearly show that the payments to Grace Osborne were to be annuities and should be treated in the same class with his nieces, Mrs. Hans-comb and Louise Thompson.

Plaintiff’s counsel argue for the allowance of solicitors’ fees. The original bill of complaint was to require the trustees to account, and plaintiff’s amended and supplemental complaint asked for a construction of the will in the light of the depreciated trust estate. This amended and supplemental complaint alleges that if it had not been for the devastavit there would be ample funds to pay all legatees in full and there would have been no need for a construction of the will. The chancellor found that there was no ambiguity in the will and that although the present plight of the estate was probably not foreseen, an examination of the will reveals a clear intention by the testator to provide for his relatives, and that there being* no ambiguity in the will there was nothing requiring construction. Stevenson v. Stevenson, 285 Ill. 486. This conclusion is supported by many decided cases. In Bartlett v. Mutual Ben. Life Ins. Co., 358 Ill. 452, it was held that the will did not require any construction by the court as the suit was instituted only to enforce a supposed interest of the complainant “almost forty years after the death of the testator.” The present case is to enforce a claimed interest almost twenty years after the death of Henry Osborne. In Power v. Power, 296 Ill. 611, the court disallowed solicitor’s fees, holding that the suit was brought solely for the benefit of the plaintiff. Among the many other cases denying solicitor’s fees under like circumstances are Warren v. Warren, 279 Ill. 217, Greenough v. Greenough, 284 Ill. 416, Billings v. Warren, 216 Ill. 281, Jennings v. Hills, 247 Ill. App. 98, and Farwell v. Illinois Merchants Trust Co., 264 Ill. App. 49.

Moreover, there is no evidence from which the services of plaintiff’s counsel in prosecuting a suit for construction of the will could be determined; there is no evidence as to how much time was spent on the accounting* issue. There is point in the suggestion that the claim that plaintiff’s solicitors be allowed $6,600 for services is inequitable and out of all proportion to the value of the services rendered to the estate and would impose an unjust charge on a trust estate already burdened with substantial losses.

We are of the opinion that the will of Henry S. Osborne, deceased, is clear and free from any ambiguity; the decree of the trial court is justified and it is affirmed.

Affirmed.

Matchett, P. J., and O’Connor, J., concur.