MEMORANDUM OPINION AND ORDER
Plaintiff, Sears, Roebuck and Co. ("Sears"), has moved for
summary judgment against defendant, Employers Insurance of
Wausau ("Employers"). Sears seeks a declaration that, by
virtue of a policy of insurance issued by Employers to Midwest
Technical Publications, Inc. ("Midwest"), and extended to
Sears by a vendor's endorsement, Employers is obligated to
defend Sears against Count III of the Second Amended Complaint
filed against it in the Circuit Court of Cook County,
Illinois, by Richard J. Short ("Short"). (PX-A).*fn1
Employers has filed a cross motion for summary judgment
seeking the contrary declaration.
In Count III of Short's complaint, Short alleges that he
purchased from Sears a manual containing instructions on the
maintenance and operation of a Craftsman 10" Radial Arm Saw,
and that it was the duty of Sears to write, print, publish and
distribute the manual with a reasonable degree of care and
caution so as not to injure Short, knowing that Short would
rely upon the representations made in the manual. (PX-A at 5).
Short then alleges the following:
7. That, notwithstanding their aforesaid duty,
[Sears was] then and there guilty of one or more
of the following wrongful acts and/or omissions:
a. Carelessly and negligently failed to provide
Plaintiff with [sic] manual that gave adequate
and proper instructions as to the operation of
the Radial Arm Saw;
b. Carelessly and negligently failed to
properly instruct Plaintiff as to the correct
and safe method of operating the aforesaid
Radial Arm Saw;
c. Carelessly and negligently failed to warn
Plaintiff of the dangers involved in operating
the aforesaid Radial Arm Saw.
8. That, as a direct and proximate result of
one or more of the aforesaid wrongful acts and/or
omissions of [Sears], the aforesaid Radial Arm
Saw caught [Short's] hand within, then and there
injuring [Short] . . . . (PX-A at 5).
The facts material to this motion for summary judgment are
undisputed. The manual referred to in Count III of the Short
complaint is entitled "POWER TOOL KNOW HOW saves you money
— Radial Saw." The manual is one of a series of "Know How"
books concerning the operation of various power tools prepared
for Sears by Midwest. The manual was copyrighted by Midwest in
1974. (PX-B). Sears purchased the finished manual from Midwest
for resale in its retail stores. Other than the books in the
series, Sears purchases no products from Midwest. (PX-C).
The original version of the manual was prepared by Midwest
over a period of several months in 1974. Midwest sent the
drafts it prepared of various sections of the manual to James
Durham, then the Assistant Buyer of Bench Power Tools for
Sears. Mr. Durham forwarded these drafts directly to the
various manufacturers of the products described or represented
in the manual for comments and suggested revisions. The
manufacturers sent the drafts, comments, and suggested
revisions directly to Midwest, which incorporated them into
the text. Midwest sent the revised drafts back to Mr. Durham,
who forwarded them to the manufacturers for their final
comments. Sears was not required to approve and did not in
fact approve or disapprove the technical content of the manual
before Midwest published it. However, all the technical
writing aspects of the manual were handled solely by Midwest,
incorporating the suggested revisions made directly to Midwest
by the various manufacturers. (PX-D). Sears participated in
the cover design of the manual.
With respect to the revised edition, Sears and Midwest
agreed that Midwest would handle all writing and revisions
agreed upon by Sears and Emerson Electric Company ("Emerson"),
the manufacturer of the saw; that Sears and Emerson would
serve in the capacity of technical advisor on power tool
content and safety; that Sears and Midwest would decide on the
manual content that would not directly affect the major power
tools; and that prior to production of the manual, silver
prints would be submitted to Sears for final review.
Employers issued to Midwest a policy of insurance which
insures Midwest against loss as a result of any claim for
"bodily injury and property damage arising out of the named
insured's [Midwest's] products." This insurance policy further
obligates Employers "to defend any suit against the insured
[Midwest], . . . even if any of the allegations of the suit
are groundless, false or fraudulent . . . ." (PX-E).
This policy also contains a vendor's endorsement (PX-F)
which extends Employers' duties to defend and indemnify to
Sears "with respect to the distribution or sale in the regular
course of the vendor's business of the named insured's
product." The endorsement was sold by Employers to Midwest for
the minimum premium, $9.00 for bodily injury and $12.00 for
property damage. Sears required the endorsement to continue
business with Midwest and Sears specified the form of
On September 21, 1981, based upon this vendor's endorsement,
Sears tendered the defense of Count III of the Short complaint
to Employers by a letter addressed to Midwest. (PX-G).
Employers rejected Sears' tender.
Employers asserts four bases for its denial of coverage.
First, Employers asserts that Count III of the Short complaint
does not involve the product distributed or sold by Midwest,
that is, the physical manual, but rather involves the
intellectual content of the manual, and that Short's
allegation is not that the physical manual alone was unsafe,
but rather that the instructions and warnings contained
therein were inadequate.
Employers relies on three cases which draw a distinction
between a physical book and its intellectual content. In
Walter v. Bauer, 109 Misc.2d 189, 439 N.Y.S.2d 821 (Sup. 1981),
affirmed, 88 A.D.2d 787, 451 N.Y.S.2d 533 (App. Div. 1982), the
plaintiff was injured during a science experiment from the
textbook Discovering Science 4, and brought an action claiming
the text was unreasonably dangerous under strict tort liability
for containing insufficient warnings. In denying the claim, the
court stated that the textbook was not a defective "product"
Discovering Science 4 cannot be said to be a
defective product, for the infant plaintiff was not
injured by use of the
book for the purpose for which it was designed,
i.e., to be read. More importantly perhaps, the
danger of plaintiff's proposed theory is the
chilling effect it would have on the First
Amendment — Freedoms of Speech and Press. Would
any author wish to be exposed to liability for
writing on a topic which might result in physical
injury? e.g. How to cut trees; How to keep bees?
(439 N.Y.S.2d at 822-823).
This same result is reached in Cardozo v. True,
342 So.2d 1053 (Fla.App. 1977). In that case the plaintiff purchased a
cookbook and while following a recipe was injured when she
tasted a raw piece of an ingredient that was poisonous until
cooked. She based her claim on breach of warranty in that the
book contained inadequate instructions and warnings. The court,
in denying her claim against the bookseller, drew a distinction
between the physical book and the ideas contained therein,
stating (at 1056):