No. 39380. ORIGINAL PETITION for writ of mandamus.
No. 39556. APPEAL from the Circuit Court of Cook County; the
Hon. NICHOLAS J. BUA, Judge, presiding.
MR. CHIEF JUSTICE SOLFISBURG DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 16, 1967.
LORD, BISSELL & BROOK, of Chicago, and ALOYSIUS F. POWER, of Detroit, Michigan, (GORDON R. CLOSE, NEWELL S. BOARDMAN, and JAY M. SMYSER, of counsel,) for appellant.
LOUIS G. DAVIDSON and HERBOLSHEIMER & LANNON, both of Chicago, for appellees.
We have consolidated two cases which have come to us as the result of plaintiffs' efforts to employ discovery procedures in a products liability action initiated in the circuit court of Cook County against General Motors Corporation. Recovery was sought for personal injuries allegedly sustained in an accident of May 11, 1963, while plaintiffs were riding in a Corvair automobile manufactured by General Motors.
On June 28, 1965, in cause No. 39380, General Motors filed its motion in this court for leave to file an original petition for writ of mandamus or prohibition (for convenience herein referred to as the mandamus action) against respondent, Nicholas J. Bua, an associate judge of the circuit court of Cook County, seeking vacation of orders entered by him on April 27 and May 13, 1965. These orders were predicated upon the discovery rules of this court and directed the production by General Motors of certain documents, records and drawings for inspection by representatives of the plaintiffs. The motion for leave to file the petition was granted by order of this court on September 28, 1965, and respondent's motion to vacate our order was subsequently denied.
Cause No. 39556 involves an appeal from an order entered pursuant to plaintiffs' motion for a rule against General Motors to show cause why it should not be held in contempt, its answer to the amended complaint stricken and the defendant defaulted for its wilful conduct in refusing to comply with discovery orders. The order appealed from was entered by the trial judge on June 29, 1965, finding that General Motors had failed to show cause why its answer to the amended complaint should not be stricken, or to show cause why it should not be defaulted for its contempt of court, and it was ordered (1) that General Motors be adjudicated to be in contempt of court, (2) that its answer to the amended complaint be stricken, (3) that judgment be entered against General Motors on the issue of liability, and (4) that trial on the issue of damages "be deferred until the final disposition of the petition for writ of mandamus or prohibition filed in the Supreme Court by the said defendant General Motors Corporation." Defendant has appealed directly to this court, apparently on the theory that constitutional questions are involved, and, as previously stated, we have consolidated such appeal and the mandamus action for our consideration. In our opinion the constitutional claims advanced in No. 39556 do not sustain the jurisdiction of this court to entertain a direct appeal (Cf. Monier v. Chamberlain, 31 Ill.2d 400); however, due to the peculiar circumstances and the interrelationship of the two actions, we retain jurisdiction of both causes under Rule 28-1E. Ill. Rev. Stat. 1965, chap. 110, par. 101.28-1E; see Berk v. County of Will, 34 Ill.2d 588.
Summarization of the history of this litigation will be helpful to an understanding of the issues. The voluminous record which was not before us at the time we granted leave to file the petition for mandamus discloses that plaintiffs filed their complaint against General Motors Corporation, as manufacturer of the 1961 Corvair automobile in which plaintiffs were riding, and McBroom Motor Company, which sold the used automobile to the plaintiff, Delmar Franklin. General Motors was charged with the negligent manufacture of a tie rod that was allegedly unsafe for its intended use by reason of defective materials and workmanship, and with failure to make a reasonable inspection of the tie rod. A second count of the complaint was based upon violation of an alleged warranty by General Motors that the automobile was reasonably fit for its intended use. This count was amended on January 10, 1964, to allege the breach of express and implied warranties as to the automobile by defendant. General Motors gave notice of the taking of depositions of the plaintiffs on December 4, 1963, and on January 10, 1964, plaintiffs secured an order suspending the taking of the depositions of the plaintiffs until the parties were at issue. A motion to strike the amended complaint was denied, and defendant filed its answer on May 10, 1964, after a series of motions, countermotions and orders relating to the depositions of the parties. In June and July of 1964 certain interrogatories by the plaintiffs were answered by the defendant and certain records were produced by defendant relating to the inspection of the tie rod in question. In September, October and November of 1964 more discovery was sought and obtained by all parties, with and without orders of court.
Plaintiffs filed on January 19, 1965, a second amended complaint containing the original allegations concerning the tie rod and additionally charging General Motors with the negligent design and manufacture of the automobile so that it was likely to become highly unstable, thereby causing the driver to lose control of it. This pleading also alleged a failure to give reasonable warning to the public of these dangerous characteristics of this automobile. A second count again set up the breach of express and implied warranties by General Motors, including an implied warranty that the Corvair automobile was reasonably fit for its intended use.
On March 29, defendant filed its motion for a bill of particulars requesting plaintiffs to set forth in what respect the automobile in question was defective, dangerous and of unsafe design, and to set out or attach a copy of the express warranties upon which plaintiffs relied. On plaintiffs' motion the trial court struck the motion for a bill of particulars but held that it should stand as interrogatories. These were answered, and General Motors then filed its answer specifically denying the allegations of negligence made against it and denying any warranties or breach thereof.
On April 27, 1965, plaintiffs presented two verified motions, one dealing with certain evidence depositions of General Motors employees scheduled to be taken in Detroit on May 10, and the other for the production by the defendant at the same time and place of certain records, documents and drawings for inspection by representatives of the plaintiffs. At the hearing on the motions it appeared that plaintiffs' counsel wanted the documents produced on May 3, since on that date depositions of some of the same witnesses and discovery of some of the same documents requested was to take place in Detroit in connection with similar litigation pending in the State of Florida. In order to accommodate counsel for General Motors as to time, the court suggested that both the production of the records and the taking of the depositions proceed at the same time on May 10, and accordingly the court entered the first of the orders (April 27) which General Motors seeks to attack by its petition for mandamus. This order required General Motors to produce at its offices in Detroit, Michigan, on Monday, May 10, 1965, at 9:30 A.M. "Each and all of the following records, documents, and drawings and that said defendant then and there permit the representatives of the plaintiffs in this action to inspect and copy the said records and documents at said time and place; * * *". The order further provided: "The said records, which the said defendant is hereby ordered to produce, include all engineering plans, specifications, blueprints, memoranda, written reports, reports of laboratory and proving ground tests, and all other records, papers, moving pictures and documents which show as to model years of the Corvair 1960 through 1965: I. The preliminary work, studies and tests in the designing, development and manufacture of the Corvair automobile * * *." The order then provides for the furnishing by defendant of blueprints and documents covering a broad and comprehensive range of component parts, weights, tests, specifications and characteristics and finally, "all bulletins, notices, pamphlets and other written material disseminated by General Motors Corporation to its dealers, service stations and to the public regarding the maintenance and servicing of the Corvair automobiles."
On May 10, the day on which the original documents were to be produced under the April 27 order, General Motors presented a motion to modify that order with reference to the production of certain witnesses for evidence depositions and to excuse the defendant from producing any documents for any Corvair models subsequent to 1961. It developed at the May 10 hearing that counsel in a pending Florida case were engaging in discovery of the same 1960-62 documents which were covered in the April 27 order. After a hearing at which counsel for all parties were present, an order was entered by respondent to produce the following day at Detroit, "for inspection and copying of plaintiffs' representatives in this case all records of whatsoever nature of said defendant which were ...