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Moore v. Jewel Tea Co.

OCTOBER 27, 1969.

FRANCES L. MOORE AND DONALD GRANT MOORE, PLAINTIFFS-APPELLEES,

v.

JEWEL TEA COMPANY, A CORPORATION, DRACKETT PRODUCTS COMPANY, A CORPORATION, THE DRACKETT COMPANY, A CORPORATION, HEEKIN CAN COMPANY, A CORPORATION, DEFENDANTS, DRACKETT PRODUCTS COMPANY, A CORPORATION, AND THE DRACKETT COMPANY, A CORPORATION, DEFENDANTS-APPELLANTS. FRANCES L. MOORE AND DONALD GRANT MOORE, PLAINTIFFS-APPELLANTS,

v.

JEWEL TEA COMPANY, A CORPORATION, DRACKETT PRODUCTS COMPANY, A CORPORATION, HEEKIN CAN COMPANY, A CORPORATION, AND THE DRACKETT COMPANY, A CORPORATION, DEFENDANTS, JEWEL TEA COMPANY, A CORPORATION, AND HEEKIN CAN COMPANY, A CORPORATION, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. HENRY W. DIERINGER, Judge, presiding. Affirmed.

MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.

Rehearings denied November 21, 1969.

Frances L. Moore and her husband, Donald Grant Moore, brought suit against Jewel Tea Company, Drackett Products Company, The Drackett Company, and Heekin Can Company, all corporations, to recover damages caused by an explosion of a can of Drano which resulted in plaintiff, Frances Moore, losing the sight of both eyes. The jury awarded $900,000 compensatory damages to Mrs. Moore, $20,000 to Donald Grant Moore, whose cause of action grew out of the husband and wife relationship, and an additional $10,000 in punitive damages to Mrs. Moore. These verdicts were awarded against the defendants, Drackett Products Company and The Drackett Company. The jury found that defendants, Jewel Tea Company and Heekin Can Company, were not liable for plaintiffs' injuries. Judgments were entered on the verdicts from which judgments The Drackett Company and the Drackett Products Company appeal. Plaintiffs filed a separate "conditional" appeal against Heekin Can Company and Jewel Tea Company upon the event that this cause might be reversed and remanded for another trial. These two appeals have been consolidated and have been heard together.

Plaintiff, Mrs. Frances Moore, testified that she purchased an 18-ounce can of Drano from a Jewel Tea Company store at 8346 South Racine Avenue in Chicago on November 21, 1959. She said that she had used this product many times in the past. She noticed that this can had a screw-on-cap. According to Mrs. Moore, the can remained beneath the sink in her kitchen until approximately 9:30 a.m. the following day. The evidence reveals that Drackett Company manufactured Drano, which is used to open clogged drains. The purpose of the product is clearly stated on the label which says that the product "keeps drains sanitary" and "opens clogged drains fast." The Drackett Products Company is a subsidiary of The Drackett Company and is its sales company. The defendant, Heekin Can Company, manufactured the can in question and the Jewel Tea Company sold it to Mrs. Moore.

Mrs. Moore further testified that she took the can of Drano, which had remained unopened, from under her kitchen sink on the morning of November 22, 1959, went into the bathroom, set the can of Drano down on the side of the sink, reached across to turn on a cold water faucet, and then "there was a sound of an explosion and I had a terrific burning in my eyes." On cross-examination she testified that she had used Drano many times before and that her procedure had been to put two tablespoonsful in the drain — and first put the cold water in and then put the Drano in the drain. Donald Moore, her husband, was in the dining room at the time he heard an explosion and seconds later he saw his wife in the kitchen trying to splash water on her face. She told him that a can of Drano had exploded. He said he saw crystals laying all over the bathroom: in the tub, in back of the toilet, and in the sink. He also found the can of Drano in the bathtub and saw that it had burst apart at the seams. Mr. Moore called for an ambulance and took his wife to the hospital. He also took along the can of Drano to show to the doctor. At the trial he identified the can of Drano as being the Drano can in question and it was received in evidence.

Mrs. Ida Hogan, a family friend, testified that she came to the Moore home at 10:00 a.m. on the morning in question and observed "crystals, sort of a grayish crystal in the bathroom." She saw the Drano can and testified that the cap was on. These three witnesses were the only witnesses to the occurrence.

Initially we are confronted with the contention by The Drackett Company that the plaintiffs' suit is barred by the Statute of Limitations. The record shows that the first complaint was filed by plaintiffs on January 20, 1960. The Jewel Tea Company, the Heekin Can Company and the Drackett Products Company were named as defendants. The Drackett Company was first named as a defendant in the Fourth Amended Complaint filed October 7, 1964, or about five years after the date of the injury.

On January 31, 1966, pursuant to notice, The Drackett Company presented a written motion to dismiss the Complaint on the grounds that the Fourth Amended Complaint naming it a party defendant was filed more than two years after the occurrence in violation of the Illinois Statute of Limitations (Ill Rev Stats 1965, c 83, § 15) which provides that "[a]ctions for damages for an injury to the person . . . shall be commenced within two years next after the cause of action accrued." This motion was continued by order of court to February 23, 1966. On the latter date the motion was continued by order of court to and "until such time as the case is assigned for trial." On March 4, 1966, plaintiffs moved to vacate the order of February 23rd and requested that a hearing be set for the motion to dismiss. On that date an order was entered vacating the February 23rd order and setting the motion to strike and dismiss before Judge Bua on March 22, 1966. Plaintiffs, thereafter, served notice that among other things they would present the amendment to the Fourth Amended Complaint and would ask leave to file it instanter. In this amendment filed on March 25, 1966, plaintiffs alleged:

That the defendant, DRACKETT PRODUCTS COMPANY, and the defendant, THE DRACKETT COMPANY, did not distinguish themselves as they were held out to the public; that the Drano can bore the name "Drackett" in large letters, and in smaller letters bore the words, "Distributed by the Drackett Products Company"; that in their advertising material concerning Drano the public was not in any wise advised of the corporate distinction between the two companies; that several employees of THE DRACKETT COMPANY were likewise employees of the DRACKETT PRODUCTS COMPANY: that the DRACKETT PRODUCTS COMPANY was wholly owned by THE DRACKETT COMPANY; that the DRACKETT PRODUCTS COMPANY and THE DRACKETT COMPANY had their offices in the same building; that the said companies filed consolidated tax returns; that both corporations had their principal place of business in the same office and the same location in Cincinnati, Ohio; that several officials of the DRACKETT PRODUCTS COMPANY were officials of THE DRACKETT COMPANY; that several members of the Board of Directors of THE DRACKETT COMPANY were on the Board of the DRACKETT PRODUCTS COMPANY; that the said companies had the same management and were each protected by the same indemnity policy purchased from a third person; that the aforesaid circumstances were misleading and lulled the public into a mistake of fact, and that there is a joint liability on the part of the defendants, DRACKETT PRODUCTS COMPANY and THE DRACKETT COMPANY, and that the defendant, DRACKETT PRODUCTS COMPANY, is chargeable with any wrongful conduct of the defendant, THE DRACKETT COMPANY, and the defendant, THE DRACKETT COMPANY, is likewise chargeable with any wrongful conduct of the defendant, DRACKETT PRODUCTS COMPANY.

On April 4, 1966, an order was entered by Judge Bua denying the motion of The Drackett Company to strike the Fourth Amended Complaint and to be dismissed as a party defendant and ordering it to answer the amended complaint within fifteen days. In the notice of appeal from the final judgment, no appeal was taken from this order. In its answer to the amended complaint The Drackett Company pleaded the Statute of Limitations as an affirmative defense. On April 26, 1967, in the third week of trial, the plaintiffs were given leave to file a fifth amendment to the complaint and in an answer thereto The Drackett Company again pleaded the Statute of Limitations as an affirmative defense.

The plaintiffs contend, however, that the question of the Statute of Limitations is not before this Court. Specifically, the plaintiffs maintain that only those matters raised in the post-trial motion are before a reviewing court and that those matters must be presented specifically rather than generally in such a motion to the trial court.

The Civil Practice Act provides that post-trial motions in jury cases must specify with particularity the grounds on which the moving party relies for relief. (Ill Rev Stats 1967, c 110, § 68.1(2)). The points must be defined in detail and clearly stated and if the motion fails to meet those standards, the error is waived and may not be asserted on appeal. Manns v. Stein, 99 Ill. App.2d 398, 241 N.E.2d 691. The reason for the above rule is stated by the Illinois Appellate Court in Perez v. Baltimore and Ohio R. Co., 24 Ill. App.2d 204, 210, 164 N.E.2d 209, 212:

A trial judge should have an opportunity to appraise the errors which are asserted to have taken place. It is unfair to charge him with errors in a reviewing court without having brought them to his attention so that a new trial could have been granted if he found it advisable.

In the instant case defendants set forth one hundred and twenty-one points in their post-trial motion. Nowhere do they directly mention the Statute of Limitations. They claim that they preserved the question of the Statute of Limitations by their motion for a directed verdict referred to in the following two points of their post-trial motion:

16. The Court erred in refusing to direct a verdict for one or both of these defendants at the close of the plaintiffs' evidence.

17. The Court erred in refusing to direct a verdict for one or both of these defendants at the close of all of the evidence.

In our opinion the portion of the defendants' post-trial motion quoted above is lacking in the particularity required by section 68.1(2) of the Civil Practice Act and, therefore, the point has not been preserved for review. City Nat. Bank & Trust Co. of Rockford v. Almond, 42 Ill. App.2d 314, 192 N.E.2d 297.

Even if the question of the Statute of Limitations now raised by the defendants had been properly preserved, it is without merit. There are certain limited situations in which compliance with the Statute of Limitations may be excused. These are set forth in chapter 110, section 46(4), of the Ill Rev Stats which provides as follows:

A cause of action against a person not originally named a defendant is not barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if all the following terms and conditions are met: (a) the time prescribed or limited had not expired when the original action was commenced; (b) failure to join the person as a defendant was inadvertent; (c) service of summons was in fact had upon the person, his agent or partner, as the nature of the defendant made appropriate, even though he was served in the wrong capacity or as agent of another, or upon a trustee who has title to but no power of management or control over real property constituting a trust of which the person is a beneficiary; (d) the person, within the time that the action might have been brought or the right asserted against him, knew that the original action was pending and that it grew out of a transaction or occurrence involving or concerning him; and (e) it appears from the original and amended pleadings that the cause of action asserted in the amended pleading grew out of the same transaction or occurrence set up in the original pleading, even though the original pleading was defective in that it failed to allege the performance of some act or the existence of some fact or some other matter which is a necessary condition precedent to the right of recovery when the condition precedent has in fact been performed, and even though the person was not named originally as a defendant. For the purpose of preserving the cause of action under those conditions, an amendment adding the person as a defendant relates back to the date of the filing of the original pleading so amended.

The record reveals that The Drackett Company manufactured "Drano" and the Drackett Products Company was the selling subsidiary. Roger Drackett was the President of The Drackett Company and the Chairman of the Board of Directors of Drackett Products Company. Both companies are located at the same address in Cincinnati, Ohio. In 1959, K.H. Jones was both Vice-President of The Drackett Company and President of Drackett Products Company. B.S. Shannon was Vice-President, Comptroller and Assistant Secretary of both companies. De Vore was Vice-President of both companies. J.A. Parchmann was the comptroller of both companies and there was one accounting department for both companies. A letter dated May 4, 1966, mailed to plaintiffs' counsel reads as follows:

Kirkland, Ellis, Hodson, Chaffetz & Masters Prudential Plaza Chicago, Illinois 60601 Telephone Randolph 6-2929

Washington Office World Center Building

May 4, 1966

[Received May 5, 1966, James A. Dooley]

Mr. James A. Dooley 111 West Washington Street Chicago, Illinois 60602

Re: Moore vs. Jewel Tea, et al.

Dear Mr. Dooley:

In compliance with Judge Bua's order of May 4 requiring us to clarify our pleadings and the theory of our defense pertaining to the relationship between Drackett Products Company and The Drackett Company, please be advised that while these two companies are separate corporate entities, one or both may or may not be guilty of breach of warranty and/or negligence in the manufacture of Drano. If Drackett Products Company knowingly sold a product which had been negligently manufactured and if they breached any warranty, express or implied, they would be liable. Likewise, if The Drackett Company negligently manufactured a product or if they breached any warranty, express or implied, they, too, would be liable.

As you know, The Drackett Company manufactured Drano and Drackett Products Company sold it. Each was aware of the activities of the other and for all practical purposes a judgment ...


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