Appeal from the Circuit Court of Madison County; the Hon.
MICHAEL KINNEY, Judge, presiding. Judgment affirmed.
Defendant, Brown Manufacturing Company, Inc., appeals from the judgment of the Circuit Court of Madison County entered upon a jury verdict in the amount of $40,000.
In his fourth amended complaint plaintiff alleges that defendant was a manufacturer of trenching machines, that plaintiff, in the course of his employment by Somerville-Illinois Company, was operating a trencher manufactured by defendant, that the machine bucked, jumped a number of feet to the rear, knocking plaintiff to the ground and running over him, causing him to suffer serious injuries. Plaintiff alleges that the injuries were suffered as the direct and proximate result of "an unreasonably dangerous condition" of the trencher, and the condition existed at the time the trencher left the control of the defendant. Plaintiff alleges further that the trencher was in an unreasonably dangerous condition when it left the control of defendant in one or more of several respects which will be later enumerated and discussed.
Defendant answered, denying the material allegations of the complaint, and asserted as "affirmative defenses," (a) that the action was barred by the provisions of chapter 83, sections 13 and 15, Ill Rev Stats, and (b) the plaintiff had "assumed all risk in relation to use and operation" of the trencher. Defendant filed a Third-Party Complaint directed against plaintiff's employer, Somerville-Illinois Company, alleging that any "injury to plaintiff, if any, was proximately, primarily and actively caused by negligence of Somerville-Illinois Company" and praying judgment indemnifying defendant against any judgment rendered against it in plaintiff's action.
Somerville-Illinois, and plaintiff, filed separate motions for severance of the third-party action, the motions were allowed and the cause proceeded to trial.
Defendant has briefed and argued numerous grounds for reversal. The first assignment of error to be considered is that the trial court erred in denying defendant's motion for a change of venue from Madison to Bond County.
Illinois Power Company was named as a party defendant in plaintiff's original complaint. The occurrence out of which the suit arises took place in Bond County. Defendant filed a motion for change of venue, supported by affidavit of counsel, alleging that venue exists, if at all, in Bond County, that defendant, Illinois Power Company, was joined solely for the purpose of fixing venue in Madison County, and not in good faith, nor with the expectation of obtaining judgment against Illinois Power Company, that Illinois Power Company would be dismissed at close of plaintiff's case and such dismissal would be highly prejudicial to defendant. As predicted by defendant, at the close of plaintiff's case the court allowed the motion of Illinois Power Company for a directed verdict.
A review of the record shows that defendant, in a special and limited appearance supported by affidavit, alleges it is an Iowa corporation, not authorized to transact business in Illinois. Section 6(1) of the Civil Practice Act (c 110, § 6(1), Ill Rev Stats 1965) provides in part "A foreign corporation not authorized to transact business in this State is a nonresident of this State." Section 5 of the Civil Practice Act provides that if all defendants are nonresidents of Illinois, an action may be commenced in any county.
Nothing in this record supports defendant's contention that the joinder of Illinois Power Company as a defendant was not in good faith. Assuming, arguendo, that such joinder was not in good faith, defendant, as a foreign corporation not authorized to do business in Illinois, could properly be sued in any county, and the trial court did not err in its denial of the motion for change of venue.
We shall next consider defendant's contention that the trial court erred in allowing the motions of plaintiff and third-party defendant for severance of the third-party action.
Defendant argues that it has been put to substantial expense in the defense of plaintiff's action, and if defendant is ultimately held liable, it will be put to additional expense in pursuing its action for indemnity. It contends that it was entitled to have the issues of its liability and its right to indemnity determined in a single trial. It argues further that it was deprived of certain tactical trial advantages in presentation of evidence, and would have been entitled to benefits of "automatic discovery not otherwise available to defendant."
As to the latter contention defendant has not pointed out, nor does this court perceive, in what manner its discovery was limited by the order of severance.
Whether, and under what circumstances, a trial court should order severance of third-party actions, has presented a difficult issue to both our trial and reviewing courts. The complexity of the problem is pointed up in the excellent summaries prepared by Judge Hallett and Professor Vitullo (Report of The Twelfth Annual Illinois Judicial Conference 1965 pp 88-89) and an excellent and comprehensive article in the Summer edition of the Law Forum (Feirich Third Party Practice, Summer Volume 1967, page 236, l.c. 268, The University of Illinois Law Forum).
Upon reviewing the authorities, we conclude that a motion to sever a third-party action, like other motions to sever, is addressed to the sound discretion of the trial court, Mount v. Dusing, 414 Ill. 361, 111 N.E.2d 502, and the trial court's ruling should not be disturbed unless a reviewing court can say that the trial court abused its discretion. Johnson v. Johnson, 5 Ill. App.2d 453, 125 N.E.2d 843.
This action was pleaded and tried on a theory of strict liability in tort (Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182), and under this theory plaintiff was not required to prove negligence. Defendant's third-party complaint charges the third-party defendant with a number of acts of negligence and examination of the pleadings shows that trial of the third-party action along with the principal suit might well have presented many problems. The number of points briefed and argued by the parties demonstrates the complexity of the trial of the issues in the principal cause of action. Defendant has not demonstrated that the order of severance prejudiced any of its "substantial rights," and from our review of the record we cannot say that the trial court abused its discretion.
Defendant contends that the trial court erred in denying its motion for directed verdict based upon its affirmative defense that plaintiff's cause of action was barred by the provisions of chapter 83, sections 13 and 15, Ill Rev Stats. Plaintiff's original complaint was filed May 10, 1963, alleging injuries as the result of an occurrence on May 19, 1961. At the close of all the evidence, prior to submission of the case to the jury, the parties stipulated that the evidence shows that the trencher was designed, manufactured, sold and out of the control and possession of the manufacturer more than 2 years before the complaint was filed. Defendant moved for directed verdict, and the motion was denied.
Neither party has cited, nor has this court found, an opinion of an Illinois court of review in which the precise issue presented here is decided or discussed. Counsel have cited numerous authorities in support of their contentions including 4 ALR3d 821, wherein many cases are gathered and discussed. The pattern which evolves from a review of the cases is that a distinction is made between causes of action which arise from a breach of warranty and those which are the result of a sudden trauma and sound in tort. Illinois has followed the rule that when the cause of action accrues as the result of a sudden trauma and is in tort, the statute of limitations runs from the day on which the injury is done. Gray v. American Radiator & Standard Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 761.
The doctrine of strict liability in tort, as enunciated in Suvada, does not depend upon either negligence or warranty as the basis for liability. The action is in tort and it appears to us that the same rule should apply in this type of tort as would be applicable in an action in tort based upon negligence. In Gray v. American Radiator & Standard Sanitary Corp. (supra) the Supreme Court said, at page 435: "The wrong in the case at bar did not originate in the conduct of a servant physically present here, but arose instead from acts performed at the place of manufacture. Only the consequences occurred in Illinois. It is well established, however, that in law the place of a wrong is where the last event takes place which is necessary to render the actor liable. (Restatement, Conflict of Laws, sec 377.) A second indication that the place of injury is the determining factor is found in rules governing the time within which an action must be brought. In applying statutes of limitation our court has computed the period from the time when the injury is done. (Madison v. Wedron Silica Co., 352 Ill. 60; Leroy v. City of Springfield, 81 Ill. 114.) We think it is clear that the alleged negligence in manufacturing the valve cannot be separated from the resulting injury; and that for present purposes, like those of liability and limitations, the tort was committed in Illinois." We fail to see any reason to apply a different rule in this case, and the holdings in Mosby v. Michael Reese Hospital, 49 Ill. App.2d 336, 190 N.E.2d 633 and Seymour v. Union News Co., 349 Ill. App. 197, 110 N.E.2d 475, do not support defendant's contention that the rule is to the contrary. The trial court did not err in denying the motion for directed verdict based on the affirmative defense of limitations.
Defendant contends that the trial court erred in denying its successive motions to dismiss, for directed verdict, and for post-trial relief, all of which were based on the ground that the plaintiff had failed to state or prove a cause of action because of his failure to allege or prove that he was in the exercise of due care for his own safety. Plaintiff argues that in a strict liability case, contributory negligence, or the failure to exercise due care, is an affirmative defense. The court directed a verdict for the plaintiff on the issue, and since the discussion of defendant's contentions arising from that ruling requires a review of the evidence we shall at this time consider only the question of whether plaintiff was required to plead freedom from contributory negligence, or that he was in the exercise of due care.
In its opinion in Suvada, our Supreme Court adopted the doctrine of strict liability in tort and in so doing stated at page 621: "We note that the views herein expressed coincide with the position taken in section 402A of the American Law Institute's revised Restatement of the Law of Torts approved in May 1964."
The Supreme Court did not express an intent to modify the doctrine as stated and defined in the Restatement, and we conclude therefore that implicit in the doctrine as adopted is the rule with respect to contributory negligence as set forth in note (n) to section 402A of the Restatement:
"n. Contributory negligence. Since the liability with which this Section deals is not based upon negligence of the seller, but is strict liability, the rule applied to strict liability cases (see § 524) applies. Contributory negligence of the plaintiff is not a defense when such negligence consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence. On the other hand the form of contributory negligence which consists in voluntarily and unreasonably proceeding to encounter a known danger, and commonly passes under the name of assumption of risk, is a defense under this Section as in other cases of strict liability. If the user or consumer discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured by it, he is barred from recovery."
This brings us to the question of whether certain language in People ex rel. General Motors Corp. v. Bua, 37 Ill.2d 180, 226 N.E.2d 6, serves to modify the rule as defined in the Restatement. In Bua, the Supreme Court at page 196 said: "This is a products liability case pleaded in two counts, one alleging negligence, and the other alleging breach of warranty. In Suvada v. White, 32 Ill.2d 612, this court adopted the theory which imposes strict tort liability on the manufacturer. Under that theory, negligence need not be proved and a plaintiff has only to prove that his injury or damages resulted from a condition of the product, that the condition was an unusually dangerous one, and that the condition existed at the time the product left the manufacturer's control. However, under both counts it is necessary to prove that the plaintiff was in the exercise of due care for his own safety." At page 197, the court said: "In a products liability case the objects of discovery on the part of a plaintiff against the manufacturer could not relate either to the issue of damages, or to the issue of the plaintiffs' freedom from contributory negligence."
Although defendant, in part, relies upon Bua in support of its contentions, counsel for both parties, and obviously for different reasons, argue that the above statements with regard to the exercise of due care and freedom from contributory negligence are dicta. We do not agree. The language is used to define and circumscribe the issues upon which the defendant's pleadings in that case should not have been stricken, and therefore, the statements are not dicta. The opinion does not, however, purport to decide the precise issues presented here, namely, the nature of the contributory negligence which would serve to bar plaintiff's recovery, nor upon whom falls the burden of pleading and proof. Our Supreme Court has repeatedly held that a judicial opinion is authority only for what is actually decided, Gannon v. Chicago, M., St. P. & P. Ry. Co., 22 Ill.2d 305, 175 N.E.2d 785; Village of Lombard v. Illinois Bell Telephone Co., 405 Ill. 209, 90 N.E.2d 105, and we construe Bua to decide that contributory negligence is properly an issue in a case based on strict liability, but do not construe the opinion to be decisive of the specific issues here presented.
Because of the conclusions reached as to the intent of Suvada, and the limited purpose of the statements in Bua, we hold that in this action, based upon strict liability in tort, the trial court correctly held contributory negligence to be an affirmative defense. For the purposes of this opinion contributory negligence is defined as voluntarily and unreasonably proceeding to encounter a known danger or proceeding unreasonably to make use of a product after discovery of a defect and becoming aware of the danger. This definition does not purport to be all-inclusive, and we do not here speculate as to what modifications may stem from fact situations not here presented. In determining the issue of contributory negligence, the conduct of the plaintiff is not to be measured against the objective standard of conduct of a reasonably careful person, but is to be determined by the subjective test of whether the particular plaintiff has proceeded unreasonably to use the product after he has discovered the defect and become aware of the danger, or has voluntarily and unreasonably proceeded to encounter a known danger.
Upon examination of the authorities, the justice and rationale of placing the burden of pleading and proof of contributory fault on the defendant, become readily apparent.
[10-12] A manufacturer is held to the degree of knowledge of experts. ". . . the duty contemplated by the court in Suvada is one of making the chattel safe for the use for which it is supplied," Dunham v. Vaughan & Bushnell Mfg. Co., 86 N.E.2d 315, 229 N.E.2d 684. The question of what is ordinary or foreseeable use is one of fact, Hardman v. Helene Curtis Industries, Inc., 48 Ill. App.2d 42, 198 N.E.2d 681. Charged with the duty of making the product safe for the foreseeable use to which it might be put, and armed with expert knowledge, the manufacturer should bear the burden of proving that improper, abnormal or unforeseeable use of the product contributed to cause the injury. It appears unjust and incongruous to place the burden of proof of freedom from contributory fault upon a user, entitled to rely upon the product's being fit for its intended use, and not charged with expert knowledge. In our opinion the same reasoning which justifies the doctrine of strict liability compels the adoption of the rule that when a plaintiff proves that his injury or damage resulted from a condition of the product, that the condition was an unreasonably dangerous one, and that the condition existed at the time it left the manufacturer's control, (Suvada) the manufacturer must bear the burden of proof that the injury resulted from conduct of the plaintiff which contributed to cause his injury.
An analysis of the doctrine and the purposes to be achieved by its adoption compel us to conclude that the test of contributory fault must be subjective, and not objective. As stated in Dunham, the doctrine imposes upon the manufacturer the duty of making the chattel safe for the use for which it is supplied. Once a defect is proved, as stated by the United States District Court for the Northern District of Indiana in Greeno v. Clark Equipment Co., 237 F. Supp. 427, at page 431, ". . . it seems unconscionable that the seller should by disclaimers avoid the duty of selling merchantable products or shift the risk of defect, unless the total circumstances of the transaction indicate the buyer's awareness of defects or acceptance of risk." The circumstances out of which Hardman v. Helene Curtis Industries, Inc. (supra) arose demonstrate that the knowledge, experience and ability of foreseeable users may vary greatly, and a product which might be used safely by one individual may prove lethal in the hands of another. To paraphrase the language of Greeno, contributory fault should not bar recovery, unless the total circumstances show the plaintiff has proceeded unreasonably to use the product after discovery of the defect and becoming aware of the danger. For the reasons set forth we hold that the trial court did not err in denying defendant's motions.
A review of defendant's remaining contentions requires a review of the evidence. The record shows that on May 19, 1961, plaintiff was 33 years of age and had been a journeyman operating engineer for approximately 4 years. He had operated all types of construction equipment ranging from small water pumps to large cranes.
The trencher which plaintiff was operating at the time of his alleged injury was a Bus Brown Trencher 468R Model. It was one of four new machines delivered to plaintiff's employer, Somerville-Illinois, earlier in May. The trenchers were delivered in crates, and at the time of delivery the crates were intact, the trenchers were not damaged and no parts were missing. Plaintiff's father, James Williams, Sr., who was employed as Somerville-Illinois' master mechanic uncrated and assembled the trenchers. Assembly of each machine consisted of putting on the boom, rubber-tired wheels, digging chains and the handlebars. A pamphlet consisting of 7 pages and bearing on its cover the legend "Information on Bus Brown Trenchers" and the name of defendant was packed in each crate. The pamphlet contains one page of operating and maintenance instructions, divided into paragraphs headed "Getting the New Machine Ready to Trench," "Forward Travel," "Starting to Trench," "Adjustments and Maintenance," and "Suggestions for Safety." A second page is headed "Service and Maintenance Tips on Bus Brown Trenchers" subdivided into 8 paragraphs.
The portions of the manual which are pertinent here are:
ADJUSTMENTS AND MAINTENANCE
"The engine is bolted stationary to the machine, and when the drive belts become loose enough to slip, adjust them by the threaded shaft on the right hand clutch lever. Caution do not adjust the belts too tight; they must be able to slip under shock load."
"Service and Maintenance Tips on Bus Brown Trenchers."
"Short Belt Life: Belts that are adjusted too tight may turn sideways, also not be able to slip under shockload."
"Shearing Woodruff Keys . . . . . . Possible Cause and Remedy."
"Generally the drive belts are adjusted too tight, especially on the model 468R, the drive belts must be adjusted so they do not slip under normal trenching, but should be loose enough to slip when some object gets caught in the digging chain, if the belts cannot slip, there is no protection against sudden shock."
"Suggestions for Safety: Always stop the engine before adjusting belts, chains, etc."
The rest of the pamphlet is made up of drawings of the chains and cutters, a list of parts recommended for use in trenching to various depths, parts installation details, and a parts list. This manual was offered and admitted into evidence as plaintiff's exhibit 11.
The 468R model is a trencher intended for one-man operation. It is powered by a 12-horsepower gasoline engine driving a cross shaft with a Vee belt with a tightening arrangement. There are two handlebars mounted on the end opposite the boom. The boom is lowered into the ground to the desired depth hydraulically. The digging or trenching is done by means of a chain, and teeth which travel around the boom in a clockwise direction, pulling dirt from the ground. The ditch or trench is created by the rearward motion of the four wheels driven by a ratchet off the cross shaft, as the machine moves in the direction of the handlebars. The trencher is operated by three levers mounted immediately forward of the handlebars.
On the afternoon of May 18, 1961, plaintiff was directed by his father, James Williams, Sr., to use the 468R trencher. Neither he nor his father had had prior experience with this particular type of machine. He operated if for about 2 1/2 hours, without mishap or difficulty. He moved it, on its own power, a ...