Appeal from the Circuit Court of Cook County, the Hon WILBERT
F. CROWLEY, Judge, presiding. Reversed and remanded.
MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
This suit was brought by Philip Knab, a minor, by Dolores Knab, his mother and next friend. Philip Knab will hereafter be referred to as "Philip." The defendant in the suit was Alden's Irving Park, Inc., and will hereafter be referred to as "Alden's." The suit was brought on an implied warranty. The jury returned a verdict finding the issues in favor of defendant and a judgment was entered in the Circuit Court of Cook County on May 10, 1962, on the verdict. Philip's post-trial motion was denied on June 25, 1962, and from the judgment and order this appeal is taken.
Philip's theory of the case is that the verdict is against the manifest weight of the evidence and that there was error in the instructions and in the evidence introduced over the plaintiff's objection, and in prejudicial remarks of Alden's counsel, and in the trial court's refusal to permit Philip to testify.
The amended complaint alleged that on May 12, 1954 Philip's mother, Dolores Knab, purchased from Alden's a pair of trousers for her then four-year-old son; that the trousers were defective and dangerous in that they were highly flammable; and that the sale of said trousers by Alden's was a breach of the implied warranty of fitness of purpose; that on or about May 23, 1954 the trousers, while being worn by Philip, ignited and burst into violent flames while Philip was standing near a fire, and that Philip suffered severe burns which resulted in a permanent physical injury to his leg.
On May 10, 1962 Alden's filed its amended answer and an amended third-party complaint against Herman and Daniel Goldberg, d/b/a Collins Mfg. Company, hereafter referred to as "Collins," the manufacturer and supplier of the trousers, and Brookhaven Textiles, Inc., hereafter referred to as "Brookhaven," the supplier of the cloth to Collins.
On motion of Alden's, its action against Brookhaven was dismissed, and at the close of all the evidence the court directed a verdict in favor of Collins on Alden's third-party complaint. Collins had also filed a "counterclaim" against Brookhaven, based upon an implied warranty. At the close of all the evidence the court directed a verdict in this action in favor of Brookhaven. In addition to Philip's appeal against Alden's, Alden's has appealed against Collins, and Collins has appealed against Brookhaven.
From the record, it appears that on May 23, 1954, Philip, then four years old, lived with his parents at 741 West Kenilworth in Palatine, Illinois. The Knab home, which was new, was on a lot 70 feet wide by 220 feet deep. A driveway extended to the rear of the house on the west side, and the rear lawn opposite the driveway had been seeded. A flagstone patio approximately 15 feet by 15 feet adjoined the back door of the house. May 23, was a Sunday, and about 10:00 or 11:00 o'clock on that morning Philip's father, Richard, mowed grass and raked it up. He then set fire to the pile of debris. The fire was straight down the driveway on the west side of the lawn and from 50 to 55 feet from the back door of the house. A log 6 inches in diameter and 24 inches long had been placed on the fire. When Richard Knab went into the house at noon for lunch he thought the fire was out. During the morning Philip was in the house with his mother. After lunch the mother dressed Philip in underpants, undershirt and a new suit which she had purchased from Alden's on May 12, 1954. Philip had never worn the suit before. The suit consisted of a T-shirt and long pants with elastic around the waist, called "boxer-type." The pants and shirt appeared to be of cotton. The shirt bore a label "Size 5, #6000, Collie Togs, by Collins Mfg. Co., Philadelphia."
Between 2:00 and 3:00 o'clock that afternoon Mr. and Mrs. James Cunningham, with their two children, and Mr. and Mrs. Edward Markowitz, with their two children, came to visit the Knabs. Philip was outside with Craig Cunningham, who was the same age as Philip. The others were visiting inside the home. Mrs. Markowitz heard a whimpering cry and went outside. Mrs. Cunningham followed her outside, and they saw Philip standing on the flagstone patio 6 to 7 feet, or 12 to 15 feet from the back door.
Mrs. Cunningham testified that when she went into the yard she saw Philip with his pants on fire. She stated, "The flames stood out from his pants four to six inches and reached above his knees to approximately the top of his legs. . . . It seemed to be a very rapidly burning fire."
Mrs. Markowitz testified that when she went out she saw Philip "and he was being burned alive. His pants were all on fire from the waist down. I began screaming. I ran to Philip. The only way I could describe it in my estimation was like a burning torch. To me it seemed that the flames were shooting out six or seven inches away from his pants."
Mr. Markowitz testified that when he went out he saw Philip on fire. He stated, "The lower part of his body was burning. The flame extended up above his waist. It was a big flame. I grabbed his pants at the waist and pulled them down. I burned my hands in doing so."
Richard Knab, father of Philip, testified that when he went out he saw Philip lying on the ground. His pants were ablaze, and Mr. Markowitz tore the pants off.
Mrs. Cunningham then picked Philip up and took him into the house. Mrs. Knab called the family doctor, and Mr. Knab took Philip to the doctor, then to the hospital. None of the witnesses testified that they observed any fires around the house at the time of the occurrence. Only the trousers worn by Philip were burned; his undershirt, shirt or undershorts were not burned. Alden's stipulated that Philip's jockey shorts were not burned, and that Philip's burns extended up to the line of the shorts.
Dr. Justin Fleischmann, the Knabs' family doctor, testified that he had known Philip prior to the occurrence; that Philip had been in excellent health and had no marks or scars on his body; that when Philip was brought to him on the afternoon in question Philip was screaming with pain. He was wearing cotton short underpants which were not burned. Dr. Fleischmann testified that Philip had suffered severe burns which required extensive skin grafting operations resulting in the formation of permanent scars. Dr. Fleischmann also testified that in his opinion, the burns were caused by a flash-type burn, a sudden explosive type flash-up of fire that disappears just as quickly as it appears.
Dr. Donald S. Miller, an orthopedic surgeon, testified that he had examined Philip, and had found the scars; that the injuries had resulted in some sensory loss, and that Philip had a permanent injury to his legs.
Mrs. Knab identified the remnants of the material of the trousers and the shirt which Philip was wearing at the time of the occurrence. The shirt and trouser remnants were admitted in evidence. The remnants of the trousers and the shirt were analyzed by Leon Kirschner, an industrial hygienist, with B.S. and M.S. degrees from the University of Pennsylvania. He testified that he had submitted the material to a number of chemical and burning tests, and that he had determined that the material contained an oxidizing agent which is a substance capable of supporting or increasing the combustibility of materials. He also determined the presence of chromates and peroxides which indicated a material that burns or ignites easily and burns quickly and intensely. He also performed an ignition pattern test on strips of the trouser material and he testified that these tests indicated that the material contained in its substances oxidizing agents capable of supporting combustion in an unfavorable position. He also examined the shirt and found that the material did not contain oxidizing agents, nor did it support combustion as the trousers did.
The suit by Philip against Alden's, the third-party action, and the counterclaim were all tried together before a jury. We will discuss the latter two actions later in this opinion. The major issues of fact under the basic complaint are:
(1) Were the trousers Philip allegedly wore at the time of the occurrence purchased from Alden's?
(2) Were the trousers so flammable as to be unfit for the purpose for which they were sold?
(3) Under the evidence, could it be held that there was an implied warranty of fitness by Alden's?
From a careful examination of the evidence it appears that the jury could have properly found that the clothes involved in the accident was purchased from Alden's. A contra-finding on that issue would be against the manifest weight of the evidence.
The next question to be considered is: Were the trousers made of such flammable material that they were not fit for the purpose for which they were sold; to wit, to be used as clothing for a very young child. Since the testimony of the child plaintiff was excluded by the court there is no testimony in the record to indicate how the trousers were set on fire. The evidence, however, is such that the jury could have properly inferred that the fire which had previously been set in the yard by the father had not been entirely extinguished and that the trousers were ignited therefrom. There is evidence in the record that the trousers burned violently; the flames ...