Appeal from the Circuit Court of Cook County; the Hon. BEN
SCHWARTZ, Judge, presiding. Judgment affirmed.
MR. JUSTICE LYONS DELIVERED THE OPINION OF THE COURT.
Rehearing denied April 5, 1966.
This is an appeal, by plaintiff, from (1) an order entered on December 9, 1964, wherein the court entered a summary judgment in favor of defendant, United States Rubber Company, a corporation, and (2) an order entered February 18, 1965, wherein a motion to vacate the aforesaid summary judgment was denied, and wherein a summary judgment was entered in favor of defendant, General Motors Corporation, Chevrolet Motor Division, a corporation.
On October 20, 1961, plaintiff was riding in a 1961 Chevrolet with the automobile owner, one Glenn Northup, and the owner's wife. They were proceeding on Route 66 (a four-lane highway) at a speed of approximately 65 m.p.h., from the owner's home, to Las Vegas, Nevada, when the left rear tire blew out. The car left the highway, overturned, and all occupants, including plaintiff, were seriously injured. Plaintiff was thrown from the vehicle and sustained a concussion, hip and back injuries, a spondylolisthesis and other injuries. The occurrence took place near Barstow, California, and while plaintiff and the owner were hospitalized, the car was taken to a local junkyard and junked. Plaintiff and the owner examined the tire at the junkyard, but it was not preserved.
The automobile was purchased new by the owner on February 3, 1961 in the State of California. The automobile utilized tires of premium quality, manufactured by defendant, United States Rubber Company, and described as "U.S. Royal tubeless 8.00-14-4 ply." The owner had paid an additional premium for these tires. The automobile carried an express warranty which, however, excluded tires.
Plaintiff, a cousin of the owner, had driven the automobile on brief occasions before the accident. Plaintiff, however, had not maintained the vehicle. It is uncontroverted that the automobile had been properly maintained and the tires properly inflated and rotated.
On September 27, 1963, plaintiff filed suit claiming a breach of implied warranty and, alternatively, negligence in the design and manufacture of the tire. Plaintiff alleged that the defective design or manufacture of said tire made both the tire and the automobile to which it was attached, dangerous instrumentalities. On August 18, 1962, plaintiff had notified both defendants of his claim, the serial number of the automobile, and a description of the tire.
Defendant, General Motors Corporation, Chevrolet Motor Division, in answer to amended interrogatories of plaintiff stated that the automobile in question was assembled on December 15, 1960 at Van Nuys, California; that defendant did not record any tire information except the size and color of the tires; that defendant had no information with reference to tire design, designed life, type of construction or complaints therein; and that defendant never received any notice or had any knowledge of defects in the tire design.
Defendant, United States Rubber Company, answering certain amended interrogatories of plaintiff stated that it had no knowledge concerning what tires were installed in the automobile described in the complaint, and that it had no information concerning lot descriptions or identifying characteristics which would allow the tracing of a tire to a specific plant or industry.
Both defendants moved for summary judgment, with attached affidavits, based upon the fact that the claimed defective tire was not available. A counteraffidavit filed by plaintiff stated that Fortune magazine in December, 1964, carried an article entitled "After the Battle in United States Rubber's Executive Suite." Among other things, the article stated that in 1959 United States Rubber Company changed its tire composition to obtain a "soft ride"; that after this design change, tires so constructed suffered from separation of the inner plies, and failed by the thousands; and that it was not until the fall of 1961, that United States Rubber Company again "got control of quality." Summary judgment was granted defendant, United States Rubber Company, on December 9, 1964. Plaintiff moved to vacate the judgment within thirty (30) days, and during this period, defendant, General Motors Corporation, also moved for a hearing on its motion for summary judgment. On February 18, 1965, the court granted a summary judgment to defendant, General Motors Corporation and denied plaintiff's motion to vacate the summary judgment entered in favor of defendant, United States Rubber Company.
Plaintiff alleges that the trial court erred (1) in granting a summary judgment in favor of defendants in that the absence of the defective tire does not resolve all the factual questions in favor of a defendant and (2) in not allowing certain interrogatories to be answered by defendant, United States Rubber Company, before the court ruled on the summary judgment.
Both defendants argue that they were entitled to a summary judgment solely on the ground that in the absence of the tire, plaintiff could not sufficiently establish a factual question for the jury on either a breach of implied warranty or negligence theory. In addition, defendant, United States Rubber Company, argues that it did not have to answer certain interrogatories because (1) it did not keep records, (2) its design and manufacturing processes are secret, and (3) it did not have to disclose evidence of tire defects, for the type of tire here involved, for a reasonable period before the occurrence.
The law in Illinois is clear that a summary judgment shall be entered in favor of the moving party if the pleadings, depositions, admissions and affidavits demonstrate that no genuine issue concerning any material fact exists and if the movant is entitled to a judgment as a matter of law. Furthermore, as stated in Allen v. Meyer, 14 Ill.2d 284, 152 N.E.2d 576 (1958), on page 292:
Summary judgment procedure is an important tool in the administration of justice. Its use in a proper case, wherein is presented no genuine issue as to any material fact, is to be encouraged. The benefits of summary judgment in a proper case inure not only to the litigants, in the saving of time and expenses, but to the ...