author: Mr. Presiding Justice Matchett

text:
    Eleanor Dabrowski, Minor by John Dabrowski, Her Father and Next Friend, Appellant, v. Illinois Central Railroad Company, Appellee.
    Gen. No. 40,645.

      Heard in the first division of this court for the first district at the April term, 1939.
    Opinion filed December 22, 1939.
    Bowe & Bowe, of Chicago, for appellant; Augustine J. Bows and John D. Casey, of Chicago, of counsel.
    John W. Freels and Herbert J. Deany, both of Chicago, for appellee; Edward C. Craig, Vernon W. Foster and Charles A. Helsell, all of Chicago, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

Plaintiff, at the time of the occurrence on which her suit is based, was a child nine years of age. She lived with her parents at 314 E. 157th street, Harvey, Illinois, in Cook county. The building was a two flat. A family named Myers lived in the lower flat. The Myers family also occupied the basement. However, the children of both families played there at times. The building was located 6 or 7 blocks east of the right of way of defendant railroad.

On Saturday, June 27, 1936, two boys of the Myers family, John, then 10, and Edward, 13 years of age, while on their way home from the business district of Harvey, were walking on the east side of Commercial avenue, a public highway running north and south, parallel and adjacent to defendant’s right of way and tracks north of 157th street, an east and west highway intersecting Commercial avenue. South of 157th street, Commercial avenue was known as West avenue. The boys saw a red light burning on the embankment upon which defendant’s tracks were laid. They walked over to it, and Edward Myers picked it up. It was a fusee, an article much used in the railroad business. The fusee was lying on the embankment of defendant’s right of way at a point about 50 feet north of the 157th street subway and a few feet west of the west line of Commercial avenue. The fusee was not stuck in the ground by its spike but was lying on the slope with a rock under it. It was about half burned out. Edward Myers knew what the article was. He put the fire out, carried the fusee home and put it under a box in the basement. Benny, the little brother of plaintiff, was in the basement at the time and saw where the fusee was placed. Edward warned Benny not to “bother” with the fusee. On the next day (Sunday, the 28th) Benny went alone to the basement and without permission from anybody took and carried away this fusee. Benny knew what a fusee was. He says he had seen the men throw them off the railroad. He carried the fusee to the back yard and porch in the rear of the building. He lighted some papers with a match, put this burning paper against the fusee, and, he says, it went off like a skyrocket. He held the fusee against a wooden board which was part of the building. Plaintiff, Benny’s sister Eleanor, was with him, wearing an “organdy” dress. It was light, filmy, and blew in the wind. A white thing, Benny says, was sputtering. The dress caught fire. Eleanor and Benny cried out. Their mother came, and with much effort put out the fire, hut not until plaintiff was badly burned. Plaintiff was taken to a hospital.

Plaintiff sued defendant railroad charging negligence with respect to the fusee. The cause was tried by a jury. At the close of the evidence there was a motion by defendant for a verdict in defendant’s favor. Ruling thereon was reserved. The jury returned a verdict for plaintiff in the sum of $22,500. Defendant made motions for a new trial and for judgment notwithstanding the verdict. The last named motion was allowed and judgment entered for defendant, from which plaintiff appeals.

The record presents the question of whether there is any evidence from which the jury, under the law, could reasonably return a verdict for plaintiff. Provensano v. Illinois Central R. Co., 357 Ill. 192.

Defendant argues the judgment in its favor is right because the evidence wholly fails to prove defendant was connected in any way with the fusee in question. It was, of course, essential to show this connection. Defendant cites cases such as Conreaux v. Industrial Commission, 354 Ill. 456; Chicago, Milwaukee & St. Paul Ry. Co. v. Coogan, 271 U. S. 472, 478; Atchison, Topeka & Santa Fe Ry. Co. v. Toops, 281 U. S. 351, 355 and Sward v. Megan, 284 Mich. 421, 279 N. W. 886, to the point that a court may not substitute speculation, conjecture or surmise in place of proof. Defendant also calls attention to Rumbold v. Supreme Council Royal League, 206 Ill. 513, 520, to the effect that the existence of a fact which must be affirmatively proved by plaintiff is never presumed from the mere absence of facts showing the contrary. A fusee is attached to the record by stipulation of the parties as illustrative of the type of fusee used by railroads generally. This is not the fusee of the accident, which Benny threw away in a field and which has never been found. The attached fusee was manufactured by the Central Railroad Signal Company, and it is admitted that fusees made by that company were used by defendant. The uncontradicted evidence is to the effect that the fusee taken home by Edward Myers was found on defendant’s right of way. Possession might justify an inference of ownership, and plaintiff, while admitting there is no direct evidence of defendant’s connection with the fusee, says the circumstantial evidence is sufficient and convincing.

The track of defendant nearest to Commercial avenue was a switch track 35 feet west of the west boundary line of the street. The main track of defendant’s road at this place ran on an embankment which was 70 feet from this west line of Commercial avenue. An ordinance of the city of Harvey gave defendant an easement in a part of this street. Defendant says that the evidence of Marble, a former employee of defendant, who testified as a witness for the plaintiff, as first given tended to show that a fusee thrown from the engine of defendant’s train would have been 130 feet further north than the point where the fusee was found by the Myers boys, or if thrown by other of the trainmen would have been as far as 1,500 feet north of 157th street. Later Marble gave testimony to the effect that fusees were used by engineers on defendant’s trains in making inspections of their engines while waiting at 157th street before entering the Markham Yards of defendant, which were located some distance south of 157th street. Defendant insists that this evidence of Marble should be given little weight. That question, however, was for the jury.

Edward Myers testified that he saw the fusee burning when he was a half block away; John Myers said he saw it when 200 feet away from it. When it was picked up it as about half burned, and the evidence showed that it took a fusee of this kind about 10 minutes to burn up. Apparently, therefore, it had been placed where it was only a few minutes before it was found. Both boys said the fusee was of the type in general use by defendant. A witness, who for several years had lived at 194 E. 157th street, about 300 feet from defendant’s right of way, testified that children played in the vicinity of 157th street and north on Commercial avenue; that she had seen fusees, some burning, some burned out, thrown on defendant’s right of way from the trains; that children picked them up; that the fusees were generally thrown after 5:00 p. m. and were thrown from trains, some of which ran north and some south. For the most part these were thrown from the middle, of the train. She had seen a train stop, and a man put one of these fusees in between the ties of the track; the children took the fusees that were thrown down from the embankment, and at times took them burning; children would congregate there and play on the embankment; she had seen them ride their bicycles up and down the embankment. The defendant points out that the fusee was picked up the week before the 4th of July, when similar types of flares were used for red lights. Further, defendant says, trucks using Commercial avenue were by law required under some circumstances to use fusees. However, the right of way belonged to defendant. Employees of lessee roads using these tracks were in law the agents of defendant. Chicago & Erie R. Co. v. Meech, 163 Ill. 305; Pennsylvania Co. v. Ellett, 132 Ill. 654; Wagner v. Chicago & A. R. R. Co., 265 Ill. 245. The particular type of fusee was in general use by defendant. There was this testimony that the employees of defendant had been seen throwing fusees lighted and unlighted on the embankment. There is no evidence that any person other than an employee of the defendant or of its lessees at any time put any fusee on defendant’s right of way. We hold the jury could reasonably find under the evidence that the fusee was placed on defendant’s right of way, where found, by an employee for whose act defendant was responsible. There is no other reasonable hypothesis. If .defendant’s employee did not put the fusee there, much evidence which could have been introduced to that effect was in possession of defendant and was not produced. We think the evidence on this point was prima facie sufficient and could not be overcome by mere surmise or conjecture. We hold this question of the connection of the defendant with the fusee was for the jury (and is settled in favor of plaintiff by its verdict).

The next question arising is, assuming an employee of the defendant placed the fusee where it was found, was the act an act of negligence with respect to plaintiff. It is argued in behalf of plaintiff it is upon the theory of attractive nuisance. Plaintiff says the lighted fusee was placed on defendant’s track in a closely built-up section of the city of Harvey; that defendant’s right of way at that point extended into a public street over part of which defendant by ordinance had an easement. The defendant says that the doctrine of attractive nuisance is not applicable because the child injured was not attracted to the premises by the supposed alluring thing, the fusee. The law in this respect has been much extended in recent years. In Engel v. City of Chicago, 290 Ill. App. 604 (Abst.), we held that a jury was justified, as a matter of law, in holding the city of Chicago liable to a boy injured by explosive material in a can found by the boy on a dumping ground maintained by the city in a place which had been laid out as a public street. The defendant there contended, as here, that the child injured was not attracted or allured to the premises by the qualities of the thing which caused him to trespass and there could be no recovery on the attractive nuisance theory for that reason. We held that where the nuisance was located on a public highway, or where it was located on private property upon which to the knowledge of the owner, either actual or implied, children were in the habit of congregating, the rule as to the necessity of allurement to the premises would not prevail. In support we cited Flis v. City of Chicago, 247 Ill. App. 128; Wolczek v. Public Service Co. of Northern Illinois, 342 Ill. 482. In O’Donnell v. City of Chicago, 289 Ill. App. 41, we held, in a case where a boy was injured while climbing a telephone pole, that the case might be brought within the attractive nuisance theory if the alluring thing was so placed as to be a part of the general environment which was attractive to children. We admit this seems to leave little of the general rule. It is believed, however, to accurately state the law as it now is. In the Eestatement of the Law of Torts, ch. 13, p. 920, sec. 339, it is said in substance that a possessor of land is subject to liability for bodily harm to young children trespassing thereon caused by structure or artificial condition which he maintains upon the land if, “a. The place where the condition is maintained is one upon which the possessor knows or should know that such children are likely to trespass.” This case is, of course, distinguishable in the fact that plaintiff was not injured upon the right of way of defendant, and in so far as the briefs disclose there is no case in which a defendant has been held liable under such circumstances. Plaintiff, however, suggests in this connection that the jury could reasonably find defendant liable upon the theory that the fusee found by the Myers boys was inherently and intrinsically dangerous. The rule of law in Illinois with respect to such articles is that the possessor is under a duty in handling the same to use a degree of care commensurate with known risks. This was held in Haas v. Herdman, 284 Ill. App. 103,108,110, where the dangerous article was dynamite, and Bunyan v. American Glycerin Co., 230 Ill. App. 351, 357, where the dangerous article was nitroglycerin.

Able counsel in this case realized the importance of this issue, and much evidence was taken on the question of whether the fusee found was an article that was inherently dangerous. A chemist from the bureau of explosives testified as to the chemical contents of fusees. He said these were the same as in fireworks; that a fusee was simply “red fire.” Professor Evans of Northwestern University corroborated and gave an elaborate chemical explanation of the character of the combustion which takes place when a fusee of this type is burning. Plaintiff admits that under customs which existed 40 years ago children were encouraged to make use of articles of this kind as a patriotic duty. It is, however, said that experience has changed public opinion. It is urged that the law should recognize the change. Confirming, attention is called to the provision of the Criminal Code regulating the use of fireworks. (Ill. Rev. Stat. 1937, ch. 38, p. 1133, par. 276 [Jones Ill. Stats. Ann. 53.059].) The definition of fireworks in that statute, plaintiff says, covers precisely such articles as the fusee. Plaintiff quotes the language of the witness, Prather, an engineer with the bureau for the safe transportation of explosives and other dangerous articles, explaining how the fusees burn. He said: “You have often seen — take fireworks and red light and burn it, and after it was burnt out why there was a lot of white stuff lying on the ground after it was all over. That is just the same proposition.” Plaintiff points out that Conway, one of defendant’s witnesses, said he would not put these articles where a child could get them readily, and that it was sensible to keep them away from children. Mr. James of the Underwriters’ Laboratory said that he did not recommend leaving the fusees lying around in places at the disposal of children or places where a child could get near them. There was much similar testimony. We do not think it can be held on the facts as here disclosed that a fusee of the kind found on defendant’s right of way was an inherently dangerous article such as dynamite was found to be in the Haas case or nitroglycerin in .the Bunyan case. So far as the briefs disclose this is the only occurrence coining to the attention of the courts where the use of a fusee has resulted in damage. From the fact that legislation has been enacted regulating the manufacture, sale and use of fireworks (Laws of 1935, p. 881, Ill. Rev. Stat. 1937, ch. 38, pp. 1133-1135 [Jones Ill. Stats. Ann. 37.213(1)-37.213(26)]), the plaintiff draws the inference that the fusee in question was inherently dangerous. Section 11 of that act provides:

“Nothing in these regulations shall be construed as prohibiting the manufacture, storage or use of signals or fusees necessary for the safe operation of railroads, trucks, aircraft, or other instrumentalities of transportation.”

Section 6 of the same act permits the retail sale of such articles between June 27th and July 4th, each year. The Motor Vehicle Act in force at the time this accident occurred (Ill. State Bar Stats. 1935, ch. 95a, secs. 42 (3)-42 (4)) provided commercial motor vehicles “shall be equipped with and carry red flares, with friction cap ignition, similar in type to the fusee signals used by railroads, or other portable lights, in a sufficient amount or quantity to burn or give light continuously for not less than sixty (60) minutes.”

These sections also provide that when such a vehicle was stopped outside any village or town, other than for taking on or discharging passengers, etc., it should from one-half hour after sunset to one-half hour before sunrise give warning by displaying and burning a railroad fusee type of flare. The same requirement in substance is in the present statute (Ill. Rev. Stat. 1937, ch. 95½, sec. 218 [Jones Ill. Stats. Ann. 85.250]) which, however, omits the phrase “railroad type.” Mr. Bennisterfer of the Central Railway Signal Company testified that the fusee in evidence was standard equipment on all American railroads. He said his company sold fusees to truck and bus companies, to the city of Chicago and the city of Hammond. Railroad fusees, he said, burned for 10 minutes. Other types for 30 minutes. The formula for making the fusee is a secret but the flares do not contain explosives. They contain strontium nitrate, sulphur, chloride of potash and sawdust prepared with paraffin. The paraffin makes the composition stick together and slows down the burning time. Strontium nitrate gives the flare a red color; the chloride of potash and sulphur form the burning part. The fusee in evidence is somewhat less than a foot in length; about one-half inch in diameter, and has a spike of steel about an inch long at the end of it. On the paper in which it is wrapped there are specific directions as to the manner of using it. As the evidence we have recited shows, it is an article of high practicable value and is indispensable in the operation of defendant’s railroad. Its proper use tends much to the protection of life and property. The rule of law undoubtedly is that when an article is inherently dangerous the owner of it must use the degree of care commensurate with the dangerous character of the article. Mattson v. Minnesota & N. W. Ry. Co., 95 Minn. 477, 104 N. W. 443, 70 L. R. A. 503; 25 Corpus Juris 185. We hold, however, there was no evidence from which the jury could reasonaoly find that the fusee in question was an inherently dangerous instrumentality within the meaning of the law. It was no more dangerous than a lighted match. Our conclusion on this point makes it unnecessary to consider at length another final and conclusive reason why, from the standpoint of the law, the plaintiff may not recover.

If we concede defendant’s connection with the article and concede it was negligent in leaving the fusee burning on its right of way; if we concede the article was a nuisance attractive to children, nevertheless, we think it would be held, as a matter of law, that the negligence of defendant was not the proximate cause of plaintiff’s injury. If the article in question had been found to be an inherently and intrinsically dangerous instrumentality, then this question might also have been for the jury. . We have seen that it is not such an instrumentality. Under the undisputed facts we hold, as a matter of law, the fusee was not the cause of the injury to plaintiff. We shall not undertake a philosophical discussion of the intricate questions arising out of legal causation. The courts, avoiding questions purely metaphysical, have adopted a practical, sensible and just rule for the determination of this question. Assuming a duty due from one person to another and neglect thereof, liability for the neglect is limited in law to results which reasonably could have been anticipated. Without such a rule people could not safely live in our complex society. The Supreme Court of the United States, in Atchison, Topeka & Santa Fe Ry. Co. v. Calhoun, 213 U. S. 1, at page 9 said: “But even where the highest degree of care is demanded, still the one from whom it is due is bound to guard only against those occurrences which can reasonably be anticipated by the utmost foresight. It has been well said that ‘if men went about to guard themselves against every risk to themselves or others which might by ingenious conjecture be conceived as possible, human affairs could not be carried on at all. The reasonable man, then, • to whose ideal behavior we are to look as the standard of duty, will neither neglect what he can forecast as probable, nor waste his anxiety on events that are barely possible. He will order his precaution by the measure of what appears likely in the known course of things. ’ Pollock on Torts, 8th ed., 41.”

Our own Supreme Court, in McClure v. Hoopeston Gas & Electric Co., 303 Ill. 89, said: “Proximate cause is that which naturally leads to or produces, or contributes directly to producing, a result such as might be expected by any reasonable and prudent mao as likely to directly and naturally follow and flow, out of the performance or non-performance of any act.”

In a case in which the cause was much more closely connected with the injury than here (Anderson v. Karstens, 218 Ill. App. 285), where gasoline cans were left on defendant’s unfenced vacant lot and carried by boys to an adjacent alley where later other boys using lighted matches, set fire to the gas and an explosion took place, we said:

“This case, as we view the evidence, discloses that there was the intervention of another and independent element which broke the relation of cause and effect and the supposed negligence of defendant was, therefore, not the proximate cause of plaintiff’s injury. This intervening cause in this case was the act or acts of other lads who carried the cans from defendant’s lot into the alley, poured the contents of one can into the other and then applied the lighted matches which directly brought about the explosion. ’ ’

It would unduly extend this opinion to quote further. If other points were decided in favor of plaintiff she could not recover for this reason. The judgment of the trial court will be affirmed.

Affirmed.

O’Connor and McSurbly, JJ., concur.


source: Caselaw Access Project

author: Mr. Justice O’Connor Mr. Presiding Justice Matchett

license: Public Domain

text:
    Armin F. Hillmer et al., Appellees, v. Chicago Bank of Commerce et al. Stevens A. Bennett et al., Appellants.
    Gen. No. 40,575.

      Heard in the first division of this court for the first district at the February term, 1939.
    Opinion filed December 22, 1939.
    Rehearing denied and opinion slightly corrected January 8, 1940.

      Matthews, Harmon, Karr & Springer, Charles A. McDonald, John K. Notz, Hopkins, Sutter, Halls & DeWolfe, Isham, Lincoln & Beale, Wilson & Mc-Ilvaine, Markheim, Parker & Miller, Mater, Meter, Austrian & Platt, Pope & Ballard, McDonald & Richmond, William F. Price, Thomas G. Deering, Shulman, Shulman & Abrams, all of Chicago, for appellants ; Kenneth L. Karr, John K. Notz, Donald J. DeWolfe, Becher W. Hungerford, Marshall Sampsell, J. F. Dammann, K. F. Montgomery, Clarence E. Fox and Frank D. Mayer, all of Chicago, of counsel.
    Leonard & Leonard, Seyfarth So Atwood and Owens & Owens, all of Chicago, for appellees; George Edward Leonard, Ernest E. Freeman, Jr. and Gordon McLeish Leonard, all of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiffs on behalf of themselves and other creditors of the Chicago Bank of Commerce, brought suit against former and final stockholders of the bank to enforce the superadded, constitutional liability of the stockholders. The cause was referred to a master in chancery who took the evidence, made up his report and recommended a decree adjudging defendants liable for certain specific amounts. The decree substantially followed the recommendation of the master, and certain of the stockholders prosecute this appeal.

The record discloses that the Chicago Bank of Commerce was organized April 5,1930, with a capital stock of $3,000,000 divided into 30,000 shares of $100 each. Afterward on February 7, 1931, the capital stock was reduced to $1,500,000 divided into 30,000 shares of the par value of $50 per share. In accomplishing the reduction $2,400,000 was distributed among the stockholders. The auditor of public accounts approved the reduction and each stockholder was given a new certificate of the par value of $50 in lieu of the old certificate of the par value of $100. The bank conducted its business in Chicago until June 25, 1932, when it closed and possession was taken by the auditor of public accounts. Afterward the auditor appointed a receiver and filed a suit in the circuit court of Cook county to liquidate the bank, which suit is still pending. The receiver in that case has paid dividends aggregating 35 per cent. On the day the bank closed, June 25,1932, a suit was filed by certain creditors of the bank and on July 1, 1932, a similar suit was filed by other creditors against the stockholders, which suits were consolidated and disposed of as one suit. The decree entered in the consolidated cases is the one that is before us on this appeal.

The master found that on the hearing before him, exhibits were introduced (which he returned with his report) “showing the names of all persons to whom” the bank was indebted at the time it closed, the amounts of the respective liabilities of the bank unpaid, the dates of the accrual of each, and the aggregate amount of unpaid liabilities “as adjusted and reduced by set-offs and counterclaims” from the date the bank closed, June 25, 1932, to April 16, 1936, which aggregated $3,871,864.42. The decree which was entered September 17, 1938, found that on that day there was more than $3,000,000 still due and unpaid to the creditors of the bank; that the number of persons to whom the bank’s indebtedness was due was large, more than 32,000, and the master found that claims were correct and proper.

The unpaid liabilities which accrued from the time the bank opened, April 5, 1930, to the time the capital stock was reduced, February 7, 1931, were $79,417.60 and the unpaid liabilities which accrued covering the period from the time of reduction to the time the bank closed, June 25, 1932, were $3,792,447.02.

A number of stockholders have paid and settled their liabilities with the receiver. Defendants, about 31 stockholders of the total number of stockholders who appeal, contend that the unpaid liabilities which accrued during the $100 period were satisfied and discharged by payments made by other contemporaneous stockholders.

The law is well settled that “If a group of contemporaneous stockholders pay to the receiver in the creditors’ suit a sum equal to all the liabilities incurred during the contemporaneous ownership, their liabilities are satisfied, and there is no warrant of law to compel that group to pay to the receiver, for the benefit of creditors, a sum greater than the aggregate of liabilities incurred by the bank while that group were the stockholders.” Burket v. Reliance Bank & Trust Co., 366 Ill. 98; Schwarts v. Broadway Trust & Savings Bank, 291 Ill. App, 460; Cohen v. North Ave. State Bank, 291 Ill. App. 558; Flanagan v. Madison Square State Bank, 292 Ill. App. 448; Burket v. Reliance Trust & Savings Bank, 296 Ill. App. 406. And defendants say that of the unsatisfied debts which accrued during the $100 period, only $79,417,60 remained unpaid when the bank closed; that since that time the receiver in the liquidation suit has paid dividends to creditors whose claims accrued during the $100 period aggregating $23,825.28, leaving a net of unpaid liabilities which accrued during that period of $55,592.32, and that the evidence shows that more than the latter sum has been paid by other contemporaneous stockholders. That the payments made by such stockholders fall into two classes, (1) those who held stock only during the $100 period and who paid $17,303, and (2) those stockholders who held shares during both the $100 period and the $50 period, and who paid more to the receiver than they were required on account of holding stock during the $50 period; that such excess payment should be applied in reduction of the liabilities which accrued during the $100 period. In explanation counsel say: “This situation is illustrated by the case of William H. Emery, who held 50 shares of the par value of $100 each from April 5, 1930 to February 7, 1931. On this latter date the par value of his shares was reduced to $50 each. He then held the 50 shares of the par value of $50 each from February 7, 1931, to the close of the bank, June 25, 1932. Emery’s maximum liability on the 5Ó shares of $50 par stock held from February 7, 1931 to June 25, 1932, was obviously $2,500. But he paid the receiver in settlement of his super-added liability $5,000. His payment was $2,500 in excess of his maximum liability on $50 par shares held. That part of his payment in excess of his maximum liability on $50 par shares must have been made to satisfy his responsibility for liabilities which accrued during some other period while he held stock of the bank. Inasmuch as the only other period in which he held stock was the $100 par period, his excess payment of $2,500 must necessarily reduce liabilities of stockholders which accrued during the $100 par period.” Counsel then analyze the payments and the liabilities and their conclusion is that the payments are “$13,686.18 more than the unsatisfied liabilities of the bank which accrued during the $100 par period.” If this method of computation were adopted the maximum liability of one who held a share of stock during the existence of the bank would be $150. We think Emery was clearly liable for not more than $100 per share for the 50 shares.

As stated above, the law is clear that if one held a share of stock of the par value of $100 in case of insolvency of the bank he would be liable for not more than $100. If he sold his share of stock and a new share of $50 par value was issued to the purchaser, the maximum liability of the purchaser would be $50, so that the liability of the two would be $150. Sanders v. Merchants State Bank, 349 Ill. 547, but that it is not the case here. The stock continued to be held by the same person after the reduction and his liability was not more than $100.

A separate brief has been filed on behalf of David A. Noyes, et al., doing business as David A. Noyes & Co., who held stock during the $50 period only and who were held liable by the decree for $5,876.85. The contention made is that Noyes & Co. held 120 shares of stock as stock brokers for sale only and that the stock belonged to Francis E. Matthews.

The record discloses that July 2, 1931, Francis E. Matthews held a certificate of stock in the bank, 1747 for 170 shares of the par value of $50 each. Attached to the certificate, his counsel say, “is a stock power signed by said Francis E. Matthews.” There also appears on the back of this power, apparently by using a rubber stamp, the following: “We hereby certify that we have no ownership in-- shares of the stock above transferred, the transfer by the owner to us being merely for the purpose of sale. David A. Noyes & Company, 208 South LaSalle St., Chicago, 111. ’ ’ Apparently at the same time Matthews executed what is designated an “Irrevocable Stock Power — Individual.” It recites that for value received Matthews has sold 20 shares and 100 shares to David A. Noyes & Co. of the bank stock as represented by Matthews’ certificate # 1747. Then follows the usual power of attorney to sell and transfer the stock. October 5, 1931, the bank issued a certificate for 20 shares to “David A. Noyes & Company” and on the same day a similar certificate for 100 shares to Noyes & Company, and the stub of the certificate book of the bank shows the shares were formerly owned by Francis E. Matthews as evidenced by certificate # 1747. There also appears in the record a certificate executed by a vice president and the cashier of the bank certifying that on October 5, 1931, Francis E. Matthews, who owned 170 shares of the bank stock evidenced by certificate # 1747, had transferred 120 of such shares evidenced by certificate # 1789 for 20 shares and certificate # 1790 for 100 shares to David A. Noyes & Co., 208 South LaSalle St., Chicago. This certificate was recorded in the Recorder’s Office of Cook county October 30, 1931. At the time of the issuance of the two certificates for 20 and 100 shares to Noyes & Co., as above stated, counsel for Noyes & Co. say there was also issued a new certificate to Francis E. Matthews for the remaining 50 shares of the 170 shares. October 7, 1931, Noyes & Co. sold 10 of the 20 shares to Lennart Janson and on February 10, 1932, sold the 100 shares to George R. Joslyn, and the bank officials made out certificates of such sales, the first one dated October 15 and recorded October 30, and a second certificate dated February 15, 1932 and recorded February 29, 1932. Counsel say that plaintiffs’ “evidence shows that said David A. Noyes & Co., was not the owner of said stock and was not held out to the creditors of the Bank or to others, by the books and records of the Bank, or otherwise, to be the owner thereof” and therefore Noyes & Co. are not liable as stockholders of the bank. In support of this it is said that it is the actual owner of the shares of stock who is liable for the statutory or constitutional liability, and Gahagan v. Whitney, 359 Ill. 419, and other authorities are cited.

The Gahagan case was a suit by creditors to enforce stockholders’ liability against claimed stockholders of a state bank which was closed for liquidation March 18, 1932. The evidence showed that Fred A. Brewer, who owned 25 shares of stock, died intestate July 15, 1923. His widow was appointed administratrix. She acted as such until the estate was closed January 3, 1930. The inventory which she filed in November, 1923, listed the 25 shares of stock. There were no children and the widow took his entire personal estate. Her final report showed that all the claims against the estate had been paid, leaving a balance of more than $4,600, which she retained as sole heir of the estate. The stock was not mentioned in the report. It was never transferred on the books of the bank from the name of Brewer. It further appeared that during the administration of the estate a certificate for 10 shares of stock which had been made out to Brewer in his lifetime but had not been delivered, was received by the widow in her individual capacity and not as ad-ministratrix; that in 1928, while the estate was being administered, two dividends amounting to $250 were paid on the stock. Checks were made payable to the widow individually, which she cashed, and it was held that the widow was liable because she was the actual owner of the stock.

Section 6, ch. 16½, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 10.06], makes it the duty of bank officials to file with the recorder of deeds of the county in which the bank is located, a certified list of all stockholders but that no such transfer of stock shall operate as a release of the super added liability of the stockholder. We hold that as to creditors of the bank, Noyes & Co. are liable as stockholders. Sherwood v. Illinois Trust & Savings Bank, 195 Ill. 112; Golden v. Cervenka, 278 Ill. 409; Wheelock v. Kost, 77 Ill. 296; Bombal v. Peoples State Bank of Ramsey, 367 Ill. 113.

In the Golden case, the Supreme Court in passing on a question similar to the one before us said: “Shares of stock were issued to some of the appellants either as brokers, to be held for the benefit of their customers, or as pledgees, to secure advances of money, and on their appeals it is insisted that the persons to whom the shares were so transferred, though appearing on the books of the bank as stockholders, are not subject to liability as stockholders on that account. These questions have been decided adversely to the appellants in the cases of Sherwood v. Illinois Trust and Savings Bank, 195 Ill. 112, and Wheelock v. Kost, 77 id. 296. A creditor is entitled to hold him liable as a stockholder who appears on the books of the corporation to be the legal owner of the stock.”

Another brief is filed on the part of some of the defendants who raise the point that “There is no proof in the record as to who are the creditors of the bank”; that the burden is on plaintiffs to prove this fact and also to prove “What are the net unsatisfied liabilities of the bank to each of its creditors” and “When each of said liabilities accrued.” In support of this it is said that the testimony of the accountant who prepared the audit “shows that he did not examine or take into account the asset accounts in the books of the bank; that it was the liability accounts only that he used in preparing the accrual audit”; that he did not examine the “Loan and Discount Register” of the bank “and did not take into account the accounts shown therein, in determining whether the various customers of the Bank who had deposit accounts (liability accounts) with it had borrowed money from it. . . . In other words, there has been no attempt to prove the net debtor-creditor relationship between the <Bank and its respective customers.”

Whitney B. Flershem testified that he had been a certified public accountant since 1912 and had examined the assets of other closed banks; that he made an audit of the Chicago Bank of Commerce to determine the existence and extent of its unsatisfied liabilities ; that his first examination was completed June 1934; that since that time he had made a supplemental examination; that the accounts were copied showing the number of accounts, the name of the creditor, the amount due when the bank closed, etc.; that “Offsets were taken into consideration from the earliest dates in consistency with the policy under which we copied the accounts”; that plaintiffs’ exhibit, which he produced, “is a summary by days of the return items, offsets and counterclaims from April 9, 1930, to June 24, 1932.” On cross-examination he testified about this exhibit and said that it “is a summary of the offsets. . . . The original audit contains offsets and preferred claims allowed to June 11, 1934”; that additional offsets were afterward allowed. He gave further testimony along this line going into details and figures. He testified to a further exhibit prepared by him in which was shown the name of each stockholder, the period of stock ownership, the number of shares, the par value of the shares, and the “unsatisfied liabilities accruing during each period of stock ownership are shown there.” On further cross-examination he testified that he took into account the records made by the receiver in the liquidation suit since the closing of the bank showing the payments made by such receiver, that “These payments and offsets were not reflected on the books of the Bank itself.” The witness was on the stand a number of different times and on the last day, on cross-examination he testified, “We paid no attention to the asset side of the books of the Chicago Bank of Commerce in making our accrual audit. ... We did not reflect in our accrual audit any offsets to which the bank may have been entitled against the respective creditors, . . . except those that had been allowed by the Receiver; and in that respect we merely took and reflected those offsets which had been allowed by the Receiver. In making our accrual audit we made no investigation to determine the net debtor and creditor relationship between the bank and its respective creditors during the life of the bank.”

It is difficult to follow the testimony of this witness as appears from what we have just said. He testified in effect that he had examined the books and showed offsets, names of creditors, and the unpaid liabilities, etc. We think the evidence is sufficient. The record shows there were more than 32,000 creditors of the bank at the time it failed and that after a payment of all dividends there is still due to the creditors more than $3,000,000. There is no contention that these figures are inaccurate. Moreover we have held that the proper place for allowance of setoffs was in the liquidation suit. Cohen v. North Avenue State Bank, 291 Ill. App. 558; Flanagan v. Madison Square State Bank, 292 Ill. App. 448; Heine v. Degen, 362 Ill. 357.

A further complaint made by counsel for defendants (that the books of the receiver in the liquidation suit were not admissible because they were not compared and checked with the records of the bank) can avail defendants nothing because the only thing shown by these books was that defendants were given credit for dividends paid by the receiver so that they were benefited by the introduction of these books and not injured.

A further complaint is made that the accrual audit is inaccurate and inadmissible “because it records the ‘liability’ upon checks drawn upon other banks and deposited in the Chicago Bank of Commerce as having accrued on the day when said checks were deposited in said bank — notwithstanding that by force of the agreement and custom applicable to such deposited items, said agreement suspended the relation of debtor and creditor pending the collection of the checks.”

Obviously the relation of debtor and creditor does ’ not exist unless and until the check deposited is paid. But there is no suggestion that any checks deposited with the Bank of Commerce were not paid. And the argument of counsel that the method pursued by the certified public accountant in making the audit might show that the “liabilities of the bank have been recorded as having accrued on the wrong days - and, therefore, against the wrong stockholders ’ ’ we think, under the record in this case, is hypercritical.

The decree of the superior court of Cook county is affirmed.

Decree affirmed.

McSurely, J., concurs.

Mr. Presiding Justice Matchett

specially concurring : I concur in these several judgments of this court with hestitation. I agree that Noyes & Co. must be held liable on the authority of Golden v. Gervenka, 278 Ill. 409. I agree the evidence was sufficient to justify a decree against these stockholders on the authority of Cohen v. North Avenue State Bank, 291 Ill. App. 558. However, I think the rule applied in determining the amount of their respective liabilities is inconsistent with the interpretation which this court heretofore, in Cohen v. North Avenue State Bank, 291 Ill. App. 558; Flanagan v. Madison Square State Bank, 292 Ill. App. 448; Burket v. Reliance Trust & Savings Bank, 296 Ill. App. 406, has given to the dictum of the Supreme Court in Burket v. Reliance Trust & Savings Bank, 366 Ill. 98. However, I concurred in that interpretation with much doubt. Burket v. Reliance Trust & Savings Bank, 296 Ill. App. 406, was decided on rehearing granted by a majority of the court.


author: Justice Friend.

text:
    Louis H. Pink, Appellant, v. Abe Chinskey, Defendant Below. Joseph J. Merensky et al., Intervening Petitioners. U. S. Fidelity and Guaranty Company, Appellee.
    Gen. No. 40,606.
    Heard in second division, first district, at February term, 1939;
    opinion filed December 27, 1939.
    Clarence W. Shaver, for appellant; Louis E. Levinson, of counsel; Robertson, Crowe & Spence, for appellee; Eugene P. Kealy, of counsel.
   Opinion by

Justice Friend.

“Not to be published in full.”


text:
    John F. Cella et al., Appellants, v. City of Chicago, Appellee.
    Gen. No. 40,619.
    Heard in second division, first district, at February term, 1939;
    opinion filed December 27, 1939.
    Aaron Soble and William Feldman, for appellants; Max Chill and Jerome S. Klein, of counsel; Barnet Ho des, Corporation Counsel, for appellee; Joseph F. Grossman, First Assistant Corporation Counsel, and J. Herzl Segal, Assistant Corporation Counsel, of counsel.
   Opinion by

Justice Friend.

“Not to be published in full.”


text:
    In re Estate of Hattie C. Wilson, Deceased. Mary P. Kiser, Appellee, v. Frank G. Smith, Executor of Estate of Hattie C. Wilson, Deceased, Appellant.
    Gen. No. 40,746.
    Heard in second division, first district, at June term, 1939;
    opinion filed December 27, 1939.
    Brown, Brown, Cyrus & Greene, for appellant; Sydney P. Brown, of counsel; C. Helmer Johnson and Julius C. Matthison, for appellee; C. Helmer Johnson and J. F. Van Wakeman, of counsel.
   Opinion by

Justice Friend.

“Not to be published in full.”


text:
    Leo P. Ratkowski et al., Appellees, v. City of Chicago, Appellant.
    Gen. No. 40,782.
    Heard in second division, first district, at June term, 1939;
    opinion filed December 27, 1939.
    Barnet Ho des, Corporation Counsel, for appellant; Joseph F. Grossman, First Assistant Corporation Counsel and J. Herzl Segal, Assistant Corporation Counsel, of counsel; Wolf & Love, for appellees; Alexander Wolf, of counsel.
   Opinion by

Justice Friend.

“Not to be published in full.”


text:
    Salvatore Gallachio et al., Appellees, v. City of Chicago, Appellant.
    Gen. No. 40,783.
    Heard in second division, first district, at June term, 1939;
    opinion filed December 27, 1939.
    Barnet Ho des, Corporation Counsel, for appellant; Joseph F. Grossman, First Assistant Corporation Counsel and J. Herzl Segal, Assistant Corporation Counsel, of counsel; Medard A. Kunz, for appellees.
   Opinion by

Justice Friend.

“Not to be published in full.”


text:
    Gus Lamesch, Appellant, v. Sam Schmidt, Appellee. Katherine Schmidt, Appellee, v. Gus Lamesch, Appellant.
    Gen. No. 40,790.
    Heard in second division, first district, at June term, 1939;
    opinion filed December 27, 1939;
    rehearing denied January 10, 1940.
    Guy C. Guerine, for appellant; Beverly & Klaskin, for appellees.
   Opinion by

Justice Friend.

“Not to be published in full.”


text:
    John H. Gately, Appellee, v. Louise Wilke, Appellant.
    Gen. No. 40,803.

      Heard in second division, first district, at October term, 1939;
    opinion filed December 27, 1939.
    Sinon A. Murray, for appellant; Louis A. Rosenthal, of counsel; Sarsfield Collins, for appellee.
   Opinion by

Justice Friend.

“Not to be published in full.”


text:
    Fred Holy, Appellee, v. Winifred Hitchcock, Appellant.
    Gen. No. 40,847.
    Heard in second division, first district, at October term, 1939;
    opinion filed December 27, 1939.
    C. N. Leach, for appellant; J. Kendall Mitchell, for appellee.
   Opinion by

Justice Friend.

“Not to be published in full.”


text:
    Anna Temple, Appellee, v. City of Chicago, Appellant.
    Gen. No. 40,869.

      Heard in second division, first district, at October term, 1939;
    opinion filed December 27, 1939.
    Barnet Hodes, Corporation Counsel, for appellant; Alexander J. Res a, L. Louis Karton and Sydney R. Drebin, Assistant Corporation Counsel, of counsel; Nathan Allen, for appellee.
   Opinion by

Justice Friend.

“Not to be published in full.’’


text:
    Jack Reiter, Appellee, v. City of Chicago, Appellant.
    Gen. No. 40,898.
    Heard in second division, first district, at October term, 1939;
    opinion filed December 27, 1939.
    Barnet Hodes, Corporation Counsel, for appellant; Alexander J. Resa, L. Louis Karton, Sydney R. Drebin and Adam E. Patterson, Assistant Corporation Counsel, of counsel; no appearance for appellee.
   Opinion by

Justice Friend. ‘ ‘Not to be published in full.”


author: Mr. Justice Scanlan

text:
    Benjamin D. Ritholz et al., Trading as Dr. Ritholz Optical Company, Appellants, v. Thomas Andert et al., Appellees.
    Gen. No. 40,396.

      Opinion filed December 27, 1939.
    Rehearing denied January 10, 1940.
    Clarence T. Morse, Benjamin D. Ritholz, and Donald A. Ritholz, all of Chicago, for appellants.
    Joseph M. Jacobs and William Yihon, both of Chicago, for appellees; Joseph M. Jacobs, William Yihon and H. IT. Bernstein, of Chicago, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

Plaintiffs appeal from a decree dissolving a temporary injunction and dismissing plaintiffs’ complaint, supplemented and amended, for want of equity.

The second amended complaint alleges, in substance, that plaintiffs are manufacturing and selling optical goods in Chicago and throughout the United States and Canada; that they purchase raw materials and unfinished goods and manufacture and produce finished optical goods to sell to the public; that they have built up a large and profitable business and valuable goodwill ; that defendants are members of the Optical Workers Union, Local 18527, affiliated with the American Federation of Labor, and that a contract of employment existing between plaintiffs and said Local expired on August 1, 1937; that on August 10, 1937, plaintiffs decided that it would be more economical to close their factory and to have goods manufactured by other manufacturers, and they then advertised their factory for sale; that they were about to consummate a sale of the factory, with all the fixtures, etc., to a firm in Kansas City; that there was never any question of bargaining, dealing, or negotiating collectively with any or all of the defendants and there was no lockout; that about August 21, 1937, defendants began to picket all of plaintiffs’ retail stores, the pickets bearing placards reading, ‘ Bitholz Optical Co., Unfair to Labor, CIO”; that plaintiffs had no contract of employment with the CIO and none of their employees was connected with that organization; that about August 11, 1937, plaintiffs caused their workshop and factory to be closed, and that thereupon defendants, all of whom were former employees of plaintiffs, save Thomas Andert, conspired with Andert to put plaintiffs out of business. The complaint then alleges that defendants are threatening' plaintiffs’ employees and seeking to prevent employees of plaintiffs from entering the place of business of plaintiffs; that plaintiffs can operate their business profitably and have their finished optical goods made by other manufacturers if they are not interfered with by defendants. Plaintiffs ask for an injunction restraining defendants from picketing the places of business of plaintiffs throughout Chicago and Cook county, from threatening or intimidating any of plaintiffs’ present employees to compel them to sever their relationship with plaintiffs, from entering upon plaintiffs’ places of business for the purpose of interfering with or obstructing the business of plaintiffs, and from interfering with or coercing manufacturers or jobbers of optical goods with whom plaintiffs have contracts.

In their supplemental answer defendants deny the charges made against them in said complaint, and allege that the factory was not permanently closed by plaintiffs and that the stores are a part and parcel of plaintiffs ’ business; that sixty-five employees in the prescription, frame and stock departments are on strike; that the stock room and shipping room remain open; that the picketing activities of defendants were carried on without force or coercion. Defendants filed a motion to dissolve the temporary injunction issued on August 27, 1937, upon the ground, inter alia, that the injunction was secured by plaintiffs on false and fraudulent misrepresentations.

Buies to show cause were entered against several of the defendants but no hearing was had upon any of them. On October 19, 1937, the parties agreed that the cause should be referred to Master in Chancery Cohen and it was thereupon ordered “that the complaint, answer and motion to dissolve the temporary injunction heretofore entered herein, and all other matters be, and the same are hereby referred to Master in Chancery Benjamin E. Cohen, to hear the evidence presented upon all issues raised, and to render his report as soon as conveniently possible.” The hearings before the master commenced October 22, 1937, and the proofs were closed February 9, 1938. The testimony introduced comprises approximately nine hundred pages of the record. The master filed an exhaustive report, in which he found that all defendants were employees of plaintiffs either in the prescription or frame department and were formerly members of the Optical Workers Union; that the principal issues involved in the cause were “(a) At the time of the closing of the factory by plaintiffs on August 11, 1937, was there an actual labor dispute between the parties relative to terms and conditions of employment? (b) Was the alleged sale of plaintiffs’ factory to Victor LaDue a bona fide sale? (c) Did the defendants exceed the scope of peaceful picketing by such methods as intimidation, coercion or threats thereof?”; that during August, 1936, a contract to last one year was entered into between the Optical Workers Union and plaintiffs, which fixed terms and conditions of employment of plaintiffs’ employees in the prescription department; that on May 17, 1937, that union entered into a contract with plaintiffs fixing terms and conditions of employment in the frame department of plaintiffs’ factory for a period of one year; that during May or June, 1937, plaintiffs’ employees severed their connection with the American Federation of Labor and practically all of them became members of a local union of the Committee of Industrial Organization; that on August 11, 1937, the prescription department contract had expired, and a committee of the said union met with Benjamin Ritholz, about two o’clock p. m. that day, and the latter offered the committee a certain increase in pay for all employees in said shop; that the committee informed Ritholz that they did not believe the employees would accept the terms and conditions offered; that on the same day about five p. m. plaintiffs caused a notice to be posted on the time clock in their factory advising all employees that plaintiffs were then suspending operation of their prescription and frame factories; that said factories were accordingly closed and no operations were conducted therein until some time later; that on August 13, 1937, plaintiffs caused to be inserted in the Chicago Daily Tribune a three-line advertisement that the frame and prescription factories of plaintiffs were for sale; that on September 2, 1937, plaintiffs executed a bill of sale purporting to sell to Victor LaDue all of the machinery, furniture and fixtures in the optical prescription shop; that on September 9, 1937, plaintiffs executed a bill of sale to LaDue purporting to sell the machinery, tools and wire used by plaintiffs in manufacturing operations in their frame department; that the first bill of sale recited a consideration of $15,000 in hand paid by the grantee, and the second recited a consideration of $10,000 in hand paid by the grantee. The master then finds that plaintiffs executed certain leases, relating to the premises in question, to LaDue; and that LaDue executed a certain chattel mortgage to plaintiffs. The master analyses, at length, the evidence relating to the sales to LaDue, and finds “that the purported sale from plaintiffs to LaDue was not actual and bona fide but that the entire arrangement was a fraudulent scheme, sham and subterfuge designed to eliminate labor difficulties with the defendant union.” After carefully considering the evidence, bearing upon the alleged sales to LaDue we find ourselves in accord with the master’s finding. The proof shows overwhelmingly that LaDue was merely a tool of plaintiffs in the entire transaction. He was a former employee of plaintiffs, an optometrist in one of their stores. Plaintiffs have omitted from the abstract a great deal of the evidence that bears upon the character of LaDue and his connection with the pretended sale. It appears that in September, 1936, in the court of common pleas, in Cleveland, Ohio, a decree was entered finding that the Buhl Optical Company, of Cleveland, and LaDue were illegally practicing optometry and they were enjoined from carrying on the practice of optometry in that State; that there was a contract existing between LaDue and the Buhl Optical Company whereby LaDue was supposed to have purchased the entire business of the said company. The court, in its decree, found that this contract was a sham and a fraud, and enjoined LaDue and the Buhl Optical Company from carrying out the contract. La-Due’s license to practice in Ohio was revoked on June 6, 1937, because of his dishonest conduct. In the instant case, Jack B. Dworken, attorney for the Ohio State Optometry Association and the Cleveland Optometry Association, testified that LaDue, on January 4, 1938, came to his office and stated to Dworken that the sale by plaintiffs in the instant case to LaDue was a sham and a fraud; that it was arranged by Bitholz to avoid the force and effect of some contract that Bitholz had with a labor union; that he, LaDue, was practically penniless at the time of the pretended sale; that Bitholz had the papers drawn up, made the arrangements and deposited certain moneys “on behalf of LaDue that was not LaDue’s money but Bit-holz’s money. This was done for the purpose of showing that the transaction was legal”; that while he signed the papers he did not know the contents of the same. From certain evidence in the instant case it appears that after the alleged sale LaDue did not carry on as the owner of the business and that plaintiffs retained the control and management of the same. Certain mountain peaks in the evidence lead to the conclusion that the alleged sale, made at the time in question, was designed to avoid the Anti-Injunction Act, in other words, that it was a subterfuge to remove from the case any question of a “labor dispute” between plaintiffs and their employees.

As to the alleged acts of violence, the master finds: “That at the time of the closing of plaintiffs’ factory on August 11, 1937, and throughout the entire period of time thereafter, there was an actual labor "dispute between plaintiffs, as employers, and the defendants, as employes, relative to the terms and conditions of employment in plaintiffs’ factory. Therefore, the Master is of the opinion that defendants had at all times subsequent to August 11, 1937, and up to and including the present date, the right to peaceful picketing of plaintiffs ’ places of business in order to publicize the existence of the labor dispute between themselves and plaintiffs and in order to make known to the public in general the fact of the existence of the said labor dispute. This right should be accorded defendants even though the factory in question was actually sold to LaDue. If it be conceded that the factory is at the present time actually being operated by LaDue, he not being a party to these proceedings, plaintiffs could not complain about picketing of La-Due’s factory being engaged in by defendants. . . . Furthermore, there is no evidence in the record tending to prove that defendants have in any manner or form whatsoever exceeded the scope of legitimate peaceful picketing. There is no evidence in the record of coercion, of intimidation, or of threats of violence, but only evidence of peaceful legitimate picketing being conducted strictly in accordance with law.” The record sustains these findings.

The master recommended that the temporary injunction be dissolved and that a decree be entered dismissing plaintiffs’ complaint for want of equity.

The master’s report came on for hearing before Judge Niemeyer, an able, experienced, and careful judge. After giving the report due consideration he overruled the objections and exceptions filed by plaintiffs to it, approved and confirmed the report, and entered the decree that plaintiffs seek to have reversed.

Plaintiffs contend that defendants are barred from any relief in equity on the ground of unclean hands. The argument is that the Optical Workers Union, without consulting plaintiffs or in anywise notifying them, “ceased to exist as an American Federation of Labor union, and became an affiliate of the Committee of Industrial Organization.” The fact that the Optical Workers Union changed its affiliation from one parent organization to another was not a matter that concerned plaintiffs. Plaintiffs argue that their rights were adversely affected by the change because the contracts they had with the Optical Workers Union when it was affiliated with the American Federation of Labor contained a provision requiring defendants to submit to arbitration any grievance which might arise. The evidence shows that one of the two contracts had lapsed and negotiations were being conducted for a new contract when plaintiffs, on August 11, notified the employees that they were suspending the operation of the plant; and that they then shut the plant despite the fact that the committee representing the union was notified on said date by Bitholz to report to its membership and to bring back to him, on August 12, an acceptance of plaintiffs’ proposal in reference to wages. Plaintiffs did not ask for arbitration with their employees but resorted to the lockout. Then followed the pretended sales to La-Due.

Plaintiffs contend that “the Anti-Injunction Statute of Illinois legalized picketing, only where there was a ‘dispute concerning terms or conditions of employment’ and only where the picketing was peaceful”; that the said statute “did not prohibit an injunction against picketing in the case at bar because there was no dispute here, since one of the parties (Plaintiff-Employer) had ceased to exist.” It is sufficient to say in answer to this contention that it ignores the findings of the master as to the nature and purpose of the sales to LaDue.

Plaintiffs contend that the Anti-Injunction statute does not prohibit an injunction against picketing in the case at bar because the picketing was not peaceful. This contention also ignores the master’s finding that the picketing was peaceful. Plaintiffs’ contention that the picketing was not peaceful depends entirely upon the following, that occurred during the direct examination of Benjamin D. Bitholz: “Q. What happened after the 11th day of August, 1937, with reference to the acts committed by the defendants ? Mr. Vihon [attorney for defendants]: I object. The Master: Sustained. Mr. Lurie [attorney for plaintiffs]: Q. Was there anything done by the defendants after the 11th day of August, 1937 ? Mr. Vihon: I am going to object to that. Mr. Lurie: Q. On Thursday, August 12th, did any of the defendants make any threats to the plaintiffs herein? Mr. Vihon: I object. The Master: Sustained.” Plaintiffs’ argument that the master committed “reversible error” when he refused to permit the witness to answer the questions, is based upon the unwarranted assumption that if the witness had been allowed to answer the questions, the answers would have shown that defendants committed illegal acts. If plaintiffs really intended to present evidence to show that defendants made threats or committed acts of violence, the able counsel for plaintiffs would not have allowed the record to remain as it is. He made no explanation to the master as to the purpose of the questions. To preserve the instant contention for review it was necessary to make an offer as to what was expected to be proved by the witness and then obtain a ruling upon the offer. (See Chicago City Ry. Co. v. Carroll, 206 Ill. 318, 328, 329.) No such offer was made. If he had made the offer and the master ruled adversely, he would then have the right to apply to the chancellor for a ruling, and after the chancellor had ruled counsel could then proceed with the hearing before the master, at which time the master would be bound to follow the court’s ruling. A fortiori, in the objections filed by plaintiffs to the master’s report, no objection was made that the master erred in sustaining the objections to the questions put to Eitholz. We note that Benjamin D. Eitholz, the witness upon the stand, is a plaintiff in the cause and was the principal factor in plaintiffs’ business. He is one of the attorneys for plaintiffs in this court. Plaintiffs sug’gest, rather than argue, that as defendants failed to introduce any evidence to disprove the verified allegations in the second amended bill as to threats, intimidation, etc., these allegations should be taken as proof that the picketing was not peaceful. It is a sufficient answer to the suggestion to say that the said allegations were denied in the verified answers filed by defendants. Plaintiffs made the charges of violence and intimidation, and the burden was upon them to prove the charges.

By leave of court plaintiffs have cited the following cases, decided since the filing of the briefs in this cause, namely: Meadowmoor Dairies v. Milk Wagon Drivers’ Union, 371 Ill. 377; Swing v. American Federation of Labor, 372 Ill. 91; Maywood Farms Co. v. Milk Wagon Drivers’ Union, 301 Ill. App. 607 (Abst.) ; Hendrickson Motor Truck Co. v. International Ass’n of Machinists, 301 Ill. App. 608 (Abst.). Plaintiffs contend that these cases sustain their position that the temporary injunction should be made permanent. The last three cases cited follow Meadowmoor Dairies v. Milk Wagon Drivers’ Union, supra. The ruling in that case, in our opinion, does not apply to the facts in the case at bar. The Meadowmoor case holds that the Illinois Anti-Injunction Act of 1925 (Ill. Rev. Stat. 1937, ch. 48, par. 2a [Jones Ill. Stats. Ann. 106.21]) does not prohibit injunctions in all matters which affect employment, but it applies only in cases where employees have a dispute with their own employer or in a labor dispute between groups of employees and employers, and that the act cannot be applied to preclude an injunction against a secondary boycott by unlawful interference with the business of one not a party to a labor dispute, who does not employ the labor in question, but who is in lawful competition with employers of such labor, as the words “party to a labor'dispute,” in the statute, refer to employer and employee. In the Meadowmoor case the facts were (pp. 379, 380): “The members of the defendant union are employed upon a weekly basis by dairies competing with the Meadowmoor company and have certain definite hours of work and deliver the milk, as employees, to customers of their employers. They have certain routes, solicit business and are paid a premium above the fixed minimum of sales. The Meadowmoor company does not follow this system. It sells its milk direct to certain individuals designated in the record as vendors, who own or rent delivery tracks, sell directly to stores and establish routes and sell from house to house and do their own collecting and retain the money so collected. The so-called vendors are not members of the union and do not follow the rules of the union with respect to hours of work or times of delivery, and their compensation depends upon how much milk they are able to sell to the customers they procure.” It was upon the aforesaid facts that the court held that the Anti-Injunction Act did not apply to the case. The court states, however (p. 384): “A careful reading of the act [Anti-Injunction Act] discloses it was intended to apply in cases where employees have a dispute with their own employer relative to terms and conditions of employment, or where similar questions are involved in a labor dispute between several groups of employees and employers.” In the instant case there was a labor dispute between employer and employees and the ruling in the Meadow-moor case does not apply. After holding, in the Mea-dowmoor case, that the Anti-Injunction Act did not apply to the relationship of the parties to that proceeding, the court, in support of its ruling that a permanent injunction should issue as prayed, cited acts of violence and intimidation that were committed by defendants as the result of an unlawful conspiracy to prevent the sale and delivery of milk from plaintiff’s dairy, and to hinder storekeepers and other retailers of milk sold by plaintiff; to prevent them from continuing the business of selling milk of the plaintiff, and to cause the customers of the plaintiff’s vendors to discontinue the purchase of plaintiff’s milk, such acts constituting an illegal secondary boycott. In the instant case there was no evidence of intimidation, coercion or violence on the part of the employees or any of their agents. Furthermore, it here appears that plaintiffs, in an attempt to avoid the application of the Anti-Injunction Act, conspired to pretend to sell their factory to LaDue, the purpose being to enable them to contend in their application for an injunction against defendants that no relationship of employer and employee existed between them and defendants. No such situation was present in the Meadowmoor case.

Defendants have heretofore filed a motion to dismiss the appeal and we reserved to the hearing our decision on this motion. The motion will be denied.

The decree of the superior court of Cook county is affirmed.

Decree affirmed.

John J. Sullivan, P. J., and Friend, J., concur.


author: Justice Scanlan.

text:
    Dr. Lawrence M. Marley, Appellee, v. Mary Henzler and Al Henzler, Appellants.
    Gen. No. 40,717.
    Heard in second division, first district, at June term, 1939;
    opinion filed December 27, 1939.
    Julius L. Kabaker, for appellants; Kelner & Kelner, for appellee.
   Opinion by

Justice Scanlan.

“Not to be published in full.”


text:
    Ella Boyle, Appellee, v. Chester E. Cleveland and David H. Jackson, Defendants. Chester E. Cleveland, Appellant.
    Gen. No. 40,751.
    Heard in second division, first district, at June term, 1939;
    opinion filed December 27, 1939.
    Rosen, Francis & Cleveland, for appellant; James B. 0’Shaughnessy, of counsel; Kenneth F. Simpson, for appellee.
   Opinion by

Justice Scanlan.

“Not to be published in full.’’


text:
    Nellie Molloy, Appellee, v. Chicago City Bank & Trust Company, Appellee. Laurence M. Fine, Appellant.
    Gen. No. 40,764.
    Heard in second division, first district, at June term, 1939;
    opinion filed December 27, 1939.
    Laurence M. Fine, pro se; Metzdorf & Frantz, for appellee Nellie Molloy; Edward J. Metzdorf, of counsel.
   Opinion by

Justice Scanlan.

“Not to be published in full.’’


text:
    David Barry and Mary Barry, Appellees, v. Alfred H. Maack, Appellant.
    Gen. No. 40,781.
    Heard in second division, first district, at June term, 1939;
    opinion filed December 27, 1939.
    Herbert M. Wetzel and William J. Earley, for appellant; George II. Sugrue, of counsel; Norman Peters and Leo G. Hanna, for appellees.
   Opinion by

Justice Scanlan.

“Not to be published in full.”


author: Mr. Presiding Justice Stone

text:
    Bituminous Casualty Corporation, Appellant, v. City of Harrisburg, Appellee.

      Heard in this court at the October term, 1938. Reversed and remanded.
    Opinion filed November 8, 1939.
    Rehearing denied January 15, 1940.
    A. E. Somers of Harrisburg, and W. C. Ropiequet, of East St. Louis, for appellant.
    C. T. Flota, of Harrisburg, for appellee.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

This appeal is prosecuted to reverse a judgment of the circuit court of Saline county against plaintiff in bar of action and for costs of suit. The judgment is based upon a directed verdict.

At the outset of the consideration of this case we are confronted with two grave misapprehensions of the law. The first is on the part of the trial court. In its opinion at the hearing on the motion for peremptory instruction the court said, “In order for the city in this case to be responsible for compensation for any person that might have been injured in the city here, it must be shown that he was in the employment of the city of Harrisburg and not under control of some other agency or force. The evidence on the part of the plaintiff here is conflicting to some extent as to that, but we must construe their evidence most strongly against them. ’ ’ This is not the law of the State. When a motion for peremptory instruction is made it must be construed most strongly against the party who makes it, and all reasonable intendments together with the facts bearing on the plaintiff’s side of the case must be resolved in his favor. He must have the benefit of them. His evidence is not to be construed most strongly against him. We know of no such holding. (Sherwin v. City of Aurora, 257 Ill. 458; McCann v. Mayer, 232 Ill. 507; Mahlstedt v. Ideal Lighting Co., 271 Ill. 154.)

Courts of review will not ordinarily inquire into the state of mind which moves the court to enter a particular judgment providing the judgment is warranted; but such a view of the evidence on a motion might easily be the determining feature as to whether such a motion should be allowed.

The second is the contention by appellee that an adverse ruling on the admissibility of evidence which is not excepted to and preserved is not reviewable. This is not the law. Section 80 of the Civil Practice Act [Ill. Rev. Stat. 1937, ch. 110, § 204; Jones Ill. Stats. Ann. 104.080] provides as follows: “No formal exception need be taken to any ruling or action of the court in any matter or proceeding, in order to make such ruling or action a ground for review.” It remains to be seen whether these errors are determinable of the issues in this case as they come here.

The plaintiff is engaged in the insurance of concerns which employ labor against accidents to persons while in such employ, in harmony with the practice under the Hlinois Workmen’s Compensation Act. As such it issued its policy to the defendant city with the usual provisions for the payment of compensation for injuries to its employees. A rider was attached to the policy which includes all persons working for the city who may be there by or through arrangements with the Illinois emergency relief commission. There is some dispute as to this rider being attached to the policy. However, the evidence tends strongly to show that it was. The usual allegations are contained in the complaint to the effect that plaintiff did insure all persons working for the city of Harrisburg, and the evidence shows a large number were brought in through the Illinois emergency relief commission and performed a large amount of service, to amount to premiums to the extent claimed in the complaint. The record shows no dispute as to the amount. The city refused to pay and hence this lawsuit.

The defendant moved to strike the complaint and to make it more specific, both of these motions being denied by the trial court. The defendant city then filed its answer denying that the persons who came to the city of Harrisburg through the Illinois emergency relief commission were during the space alleged employed by the city of Harrisburg. They filed further answer alleging that the city never entered into any contract to hire these individuals and could not have done so except by a Yea and Nea vote of the city council on the question. It also alleged that at the time of the alleged hiring there was no appropriation made for the payment of the claimed compensation on such workers. The plaintiff in its reply denied this. Many technical allegations are made in the pleadings, but taken as a whole they resolve themselves into the one question: Were the men who came to work at the defendant city during the period in which it is claimed they worked for said city, in the employ of said city of Harrisburg? Was there a hiring by which the city became responsible to pay premiums to plaintiff on the coverage of these men by virtue of its policy with plaintiff?

The trial court obviously took the view that this was the only question involved. The question of the ability of -the city to employ the men in question in the manner that it is alleged they were employed was not raised before the trial court; neither was the question of there being no appropriation to pay the debt in question. The trial court apparently took the view that if these men were employed by the city there was a liability on the part of defendant to pay the premiums charged; if they were not, there was no liability on the part of the city. This raised a clear question of fact as to whether there was a hiring, whether the men who worked during the space claimed were in the employ of the city of Harrisburg. The evidence tends to show and does show that the city of Harrisburg entered into a contract with the Illinois emergency relief commission for the working out of certain projects by the men which said commission would furnish. Again there may be a question about the “entering in” to the contract. The contracts for some of the projects were made by the mayor-elect before he became mayor; others were made by him after he was mayor, and certain of them were signed by the finance commissioner of the defendant city. The men came to work at Harrisburg and went to work on the various projects outlined. The evidence shows that the street commissioner showed them where to begin work; it shows that the street commissioner at times did certain acts which amounted to a direction of the men; that he was with them and among them often. It further shows that all of the city officers had knowledge of the work that was being done; some of them at different times visited the projects that were being carried on and no one for the city made any objection or raised any question about the carrying out of the agreements which had been made. They sat by and saw the work go on; they knew it was going on; they knew that their officers had entered into some kind of an arrangement by which it should go on. The city got the benefit of the work.

These facts and circumstances together with their reasonable intendments and proper conclusions to be drawn from them raised questions of fact as to whether or not them was a hiring on the part of the defendant city. In our judgment they were sufficient to warrant the court in submitting that question to the jury under proper instructions as to what would amount to a hiring or to employment.

That being our view of the situation we are of the opinion that it was clearly error for the court to direct a verdict in this case, and that its judgment in that regard should be, and it is hereby, reversed, and this case is remanded to the circuit court of Saline county for another trial in harmony with the views here expressed.

Reversed and remanded.


text:
    Consolidated Biscuit Company, Appellant, v. Illinois Iowa Power Company, Appellee.

      Heard in this court at the May term, 1939.
    Opinion filed November 29, 1939.
    Rehearing denied January 11, 1940.
    Clausen, Hirsh & Miller and Brown, Fox & Blum-berg, all of Chicago, and Curtis Williams, of Mt. Vernon, for appellant.
    Gilbert & Gilbert, of Mt. Vernon, and Hamilton, Black & Klatt, of Peoria, for appellee.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

This suit is predicated upon three counts of an original complaint and five counts of an amended complaint, filed by appellant, in the circuit court of Jefferson county. By the suit generally, the plaintiff in the lower court sought to recover damages in the sum of $400,000, arising out of the alleged failure of the defendant to furnish water for use in extinguishing a fire which occurred at plaintiff’s plant in the city of Mt. Vernon, on January 30, 1937.

The three counts of the original complaint charge in substance, that the plaintiff was engaged in the baking-business in the city of Mt. Vernon, its property consisting of a four-story structure of concrete and brick and a two-story, frame warehouse building, and that the defendant was at the time complained of, doing business as a public utility company in the city of Mt. Vernon; that on September 1, 1902, the city of Mt. Vernon passed an ordinance known as Ordinance No. 234, providing for a waterworks supply for the said city, which ordinance was made a part of the complaint, and which ordinance required certain standards of water pressure on the part of the defendant, as assignee of Herbert R. Kingman; that certain water hydrants mentioned therein, and rented by the city were located near the property of the plaintiff; that the defendant had impliedly agreed to furnish water to plaintiff’s building, in compliance with the standards of the said ordinance; that a fire occurred at the plaintiff’s property on January 30,1937 and that as a direct result, of the defendant’s alleged failure to furnish sufficient water pressure, plaintiff’s property was destroyed.

Count one of the amended complaint proceeds upon the theory that there was an implied contract whereby defendant was to furnish water continuously to the plaintiff at a specified pressure, and that by reason of the defendant’s breach of this contract, plaintiff was damaged. Count two is predicated upon the theory that there was a legal duty, aside from the contract, on the part of defendant to furnish water at specified pressure to plaintiff’s private hydrants and water facilities and that defendant’s failure in this regard constituted a tort against the plaintiff. Count three proceeds upon the theory that there was an implied contract in force between plaintiff and defendant whereby defendant agreed to furnish plaintiff water continuously for its private fire hydrants in amounts reasonably adequate for fighting fire, and plaintiff was damaged by reason of defendant’s failure to fulfill this contract. Count four is based on the theory that there was a legal duty upon the defendant to furnish plaintiff water, adequate to combat a fire and its failure to do so constituted a tort. Count five is predicated upon the theory that the defendant, in failing to furnish water, as required, violated section 32 of chapter lll^j of the Public Utility Act [Jones Ill. Stats. Ann. 112.051], which, it is claimed, would constitute prima facie evidence of negligence, and that such conduct constituted a tort. Motion to dismiss all of these counts was allowed by the trial court, and the errors relied upon for reversal are the action of the lower court in sustaining such motion and entering judgment for the defendant.

Counts 1, 2 and 3 of the original complaint and 1 and 3 of the amended complaint, constitute a claim ex contractu and counts 2, 4 and 5 of the amended complaint are ex delicto. Broadly then, there are two theories upon which plaintiff seeks to fix liability upon the defendant, one sounding in contract and the other in tort.

Appellant, in contending that there is a liability based upon contract, relies primarily, upon Ordinance 234, providing for the extension, operation and maintenance of a water supply for the city of Mt. Vernon, which ordinance constitutes a contract between the city of Mt. Vernon and the defendant as the assignee of Herbert E. Kingman. There is no allegation of any express contract between plaintiff and defendant. Plaintiff contends that said ordinance was a contract between defendant and the said city of Mt. Vernon, which said contract was made for the benefit of the inhabitants and property owners of the said city of Mt. Vernon, including the plaintiff; that by reason of defendant’s breach of this contract, the plaintiff, as a beneficiary thereof, may recover against the defendant ; that the ordinance, and the long continued use of the water facilities furnished by the defendant to the plaintiff, created an implied contract whereby defendant agreed to furnish continuously to plaintiff water to its private fire hydrants in amounts reasonably adequate for fighting fire.

By the great weight of authority in this country, where a city contracts with a private party or corporation to operate waterworks for the purpose of furnishing water to the city and its citizens, a property owner cannot hold the city or water company liable for loss by fire, occasioned by the failure of the water company to furnish an adequate supply of water for fire protection. (This question has been before the highest judicial tribunals of a large number of other States in this country and in all of them, except three, Kentucky, North Carolina and Florida, the rule above stated has been adhered to, with which rule we concur?] (Rostad v. Chicago Suburban Water & Light Co., 163 Ill. App. 63; Peck v. Sterling Water Co., 118 Ill. App. 533; City of Galena v. Galena Water Co., 132 Ill. App. 332; Metropolitan Trust Co. v. Topeka Water Co., 132 Fed. 702; Moch v. Rensselaer Water Co., 247 N. Y. 160, 159 N. E. 896; Trustees of Jennie DePaūw Memorial M. E. Church v. New Albany Waterworks, 193 Ind. 368, 140 N. E. 540, 27 A. L. R. 1274; Hone v. Presque Isle Water Co., 104 Maine 217, 71 Atl. 769; Mills v. Moseley, 50 Ga. App. 536, 179 S. E. 159; German Alliance Ins. Co. v. Home Water Supply Co., 226 U. S. 220; Prindle v. Sharon Water Co., 105 Conn. 151, 134 Atl. 807; Atlas Finishing Co. v. Hackensack Water Co., 10 N. J. Misc. 1197, 163 Atl. 20; Ellis v. Birmingham Water Works Co., 187 Ala. 552, 65 So. 805.)

The rulings in these cases are generally to the effect that there is no privity of contract between the water company and a citizen which will support the action, and that the contracting company cannot be charged with a greater liability than the city itself. The contract, which is the ordinance, was not enacted for the protection of any particular property or person, but was for the general benefit of all the property and per-■jlsons within the municipal limits and was entered into by the city as a public agency, solely for that purpose, and in the exercise of its power to furnish such general protection. We cannot escape the conclusion that the relation between the plaintiff and defendant assumed no obligation regarding plaintiff’s property different from that assumed by it regarding all other property within the town, and that the plaintiff is without right of action. Therefore, we find that the trial court did not err in sustaining the motion to dismiss counts 1, 2 and 3 of the original complaint and counts 1 and 3 of the amended complaint which were predicated upon the theory of an implied agreement.

In support of its contention that it has a cause of action ex delicto, as set forth in counts 2, 4 and 5 of the amended complaint, plaintiff cites the case of Clark v. Public Service Co., 278 Ill. App. 426, which seems to follow the ruling laid down in Mullen v. Otter Tail Power Co., 130 Minn. 386, 153 N. W. 746, upon which case plaintiff also relies. The distinction between these two cases and the case at bar must be clearly apparent. In the Mullen case, the defendant owned and operated an electric light plant in the city of Morris, furnishing electric current to consumers under contract with them. The cause of action was predicated upon the allegation that defendant negligently cut the service wires that supplied electric light to plaintiff’s store, plaintiff by reason of darkness, at a time when his place of business was on fire, being unable to remove and save his stock and fixtures. The evidence showed that a servant of the defendant climbed a pole near the plaintiff’s premises and cut the wires that supplied plaintiff’s store with electric current. He knew that the plaintiff had a stock of goods that could be saved if he had light, and the current was cut off 40 minutes before apparently "there was any need to do so. In that case the Supreme Court of Minnesota, in holding that the act of the defendant by its servant was unnecessary and the trial court’s finding, that it was a negligent act should be sustained, said, “The contract between the parties is not important except for the bearing it has on the question of what the legal duty of defendant was. It is not a breach of contract that plaintiff complains of, but a tort, actionable negligence on the part of a servant of defendant in the course of the performance of his duties.”

In the Clark case, defendant was a public utility company engaged in the business of furnishing the inhabitants of DuPage county and other communities electric light and power; that plaintiff owned certain real estate, upon which water was pumped by means of electricity, supplied by the defendant; the plaintiff’s property caught fire and after the premises had become so ignited, the defendant negligently, carelessly and improperly removed and disconnected the meters, stopping the flow of electricity and cutting off the supply of water, as a result of which there was no water available for the purpose of extinguishing the fire and plaintiff’s property was destroyed. The Appellate Court held that regardless of contractual relation, the defendant owed plaintiff the duty not arbitrarily to cut off the supply of electric current going to her premises.

In both of these cases the crux is the affirmative Apytious act of the defendant. The contractual relation, as is held in both cases, was immaterial. In the instant case, the failure to furnish an adequate supply of water was at most the denial of a benefit. It was not the commission of a wrong. The case of Mills v. Moseley, 50 Ga. App. 536, 179 S. E. 159, was one brought by property owners against the Mills Company because of the destruction by fire of plaintiff’s property and because of an alleged conspiracy between the city and defendant to withhold water and cutting-off of water supply from the city hydrants. The court, among other things, in denying- liability, says:

“1. ‘The great weight of authority is to the effect that a resident of a city cannot recover of a waterworks company damages for loss by fire occasioned by the failure of such company to furnish, in accordance with its contract with the city, a sufficient supply of water to extinguish the fire.’ Holloway v. Macon Gas Light & Water Co., 132 Ga. 387, 394, 64 S. E. 330. There being no privity of contract between the resident and the company, and no public duty on the part of the company as to the resident, he has no right of action either on the express contract of the city or in tort. Nor can he recover either ex contractu or ex delicto upon the theory that an implied contract and duty by the company to the resident arises in favor of the resident from the express contract between the city and the company. ’ ’

Holding also that upon a similar state of facts there could be no liability ex delicto are the following cases: Prindle v. Sharon Water Co., 105 Conn. 151, 134 Atl. 807; Moch v. Rensselaer Water Co., 247 N. Y. 160; German Alliance Ins. Co. v. Home Water Supply Co., 226 U. S. 220. This court feels that to depart from the rulings in these well considered cases would be unduly and indefinitely to extend the zone of duty on the part of a water company.

Lastly the theory of the plaintiff that a liability can be predicated against the defendant in that the failure to furnish water as required, violated the provisions of section 32 of ch. 111⅔ of the Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 112.051], with reference to public utilities, such violation allegedly constituting prima facie evidence of negligence, is untenable. The case of Trustees of Jennie DePauw Memorial M. E. Church v. New Albany Waterworks, 193 Ind. 368, 140 N. E. 540, 27 A. L. R. 1274, was one in which plaintiff sued defendant Water Company for damages for total destruction of the church building by reason of the Water Company’s failure to maintain fire hydrants in condition for use. The defendant was the grantee or sue-cessor of an ordinance which required it to supply sufficient water under pressure and also certain fire hydrants in good order and working condition. Section 7 of the Public Service Act required public utilities to furnish reasonably adequate service and facilities. In that case the Supreme Court of Indiana held that the common law rule that a public utility company, under contract to furnish a municipality with water, is not liable to a citizen for damage to his property from fire by reason of the insufficient supply of water, is not altered by a statutory requirement that public utilities furnish reasonably adequate service and facilities, since such statute is merely declaratory of the common law, and adds nothing* to the former obligations of such utilities.

To the same effect are the decisions in Krom v. Antigo Gas Co., 154 Wis. 528, 140 N. W. 41, 143 N. W. 163, and Moch v. Rensselaer Water Co., 247 N. Y. 160.

We find nothing* in the provisions of the Public Utility Act of Illinois that would tend to enlarge the liability of water companies to private individuals, as claimed in the present case. The plaintiff company had no direct interest in the agreement between defendant and the city of Mt. Vernon and therefore could not sue ex contractu. Neither could it sue in tort, because in the absence of a contract obligation to it, the water company owed it no duty, for the breach of which it could maintain an action ex delicto. In our opinion the trial court did not err in sustaining the motion to dismiss as to counts 1, 2 and 3 of the original complaint and counts 1, 2, 3, 4 and 5 of the amended complaint, and in entering judgment for the defendant. The judgment is affirmed.

Judgment affirmed.


text:
    Ferris Smith, Appellee, v. Geraldine S. Roberts, Appellant.
    Gen. No. 40,975.
    Heard in second division, first district, at October term, 1939;
    opinion filed December 27, 1939;
    rehearing denied January 16, 1940.
    Jarecki & Brautigam, for appellant; William F. Boeger, Frederick B. Boos, David H. Kraft and Harry J. Myerson, for appellee; Harry J. Myerson and David H. Kraft, of counsel.
   Opinion by

Justice Friend.

“Not to be published in full.”