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Skalon v. Manning

JUNE 29, 1970.

ROSE SKALON, ADMINISTRATRIX OF THE ESTATE OF CHESTER R. SKALON, DECEASED, PLAINTIFF-APPELLANT,

v.

MANNING, MAXWELL AND MOORE, INC., A CORPORATION, AND LINK BELT COMPANY, A CORPORATION, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. ABRAHAM W. BRUSSELL, Judge, presiding. Judgment affirmed.

MR. JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT.

This appeal is from a jury verdict against the plaintiff, Chester R. Skalon and in favor of the defendants. During the pendency of this appeal, the plaintiff, Chester R. Skalon, died and Rose Skalon was appointed administratrix and was substituted as a party plaintiff. For convenience and because of the state of the record, all references to plaintiff will be to Chester R. Skalon.

This suit was instituted by plaintiff for recovery for personal injuries he sustained while an employee of Scully-Jones & Co., in the city of Chicago. On September 30, 1960, the plaintiff was injured by the fall of a machine which had been raised by a one-ton "Budgit" hoist by use of a load hook that was attached to a roller chain connected to the hoist. The evidence established that a pin (or rivet) used to connect a load hook to the chain had fractured and this resulting pin failure caused the machine to fall upon plaintiff's left leg. The defendants in the case are Link Belt, the company that manufactured the chain involved, and Manning, Maxwell and Moore, Inc., who manufactured the hoist and assembled the chain and its component parts with the hoist.

Plaintiff's suit was based on a theory of product liability, charging the defendants with negligence in the design, manufacture and assembly of the hoist and chain that were the defendants' products. The trial was conducted in October of 1966 and took approximately four weeks to complete. The plaintiff's theory was that the defendants were negligent in the design of the load hook assembly to the roller chain that was used in the hoist. Plaintiff attempted to show that the riveting process undertaken in the assembly of these parts caused the pin to develop a brittle quality; that this brittleness caused the riveted end of the connecting pin to come off, which in turn allowed the pin to move sideways, causing side forces to bear upon the connection which eventually developed into a shearing force; and that the pin failed as a result of the negligence of both manufacturers.

The defendants proceeded under a theory that the hoist had been subjected to improper use by plaintiff's employer. This allegation was asserted by direct evidence and inference that some type of replacement pin had been inserted into the load hook connection of the chain, thus absolving defendants of liability. The evidence showed that one of the links that had been part of the connection had a "C" stamped on it. Defendants' witness said that this link was not designed for the weight bearing end of the chain, but rather for the nonload carrying end. Further, defendants presented expert testimony that some fractures had occurred on the surfaces of the chain nearest the hook shank which were allegedly caused by running the chain into the gear teeth of the hoist. It was further inferred that the chain had been operated without a safety shutoff device, consisting of a collar and spring which would automatically shut off the hoist when it came in contact with certain parts of the hoist. This also gave some credence to the theory that the fractured pin had been a replacement of the one installed by defendants.

The parties to this litigation introduced a great deal of testimony and demonstrative evidence. Both sides used expert witnesses to prove their respective theories, relying upon scientific tests, complicated data and the experience of these experts. The record reveals that many rulings made by the trial judge were made in chambers and involved lengthy discussion by counsel and the court.

For a reversal of this judgment, the plaintiff raises two main issues which are divided into many separate contentions. Those issues are:

(1) That the conduct of defense counsel, taken as a whole, served to prejudice the plaintiff's right to a fair trial; and

(2) That the trial court erred in its rulings as to the admission and exclusion of evidence which resulted in the denial of a fair trial.

We will discuss these issues in that order and will take up the contentions urged by plaintiff separately.

The first issue raised by plaintiff is that the conduct of defendants' counsel had the cumulative effect of denying the plaintiff a fair trial. From this general allegation, plaintiff argues that many of the defense counsel's tactics resulted in prejudicial conduct that requires this court to order a new trial. We will examine each of these charges as asserted by the plaintiff.

First of all, the plaintiff contends that defense counsel deliberately delayed or refused to produce information which was called for by subpoenas served upon the defendants. Defendants answer this contention by arguing that the circumstances show that plaintiff abused the use of subpoenas in light of the inherent difficulties of this case. An examination of the record discloses several cogent facts. The subpoenas were served on October 4, 1966, and were returnable on the following day, October 5. The subpoenas sought a great deal of correspondence, memoranda and records from each of the defendants concerning the machinery involved in this case. The categories covered a multitude of data from these two corporate defendants. The time period covered almost a twenty-year span and both defendants kept their records in home offices which were located in other states.

On October 5, 1966, a conference was held in chambers between the trial judge and both counsel concerning the return of subpoenas. The discussion mainly concerned the subpoena served on defendant Manning, Maxwell and Moore, in which some eighteen categories of items were sought for production. Each one of these items was discussed by the court and counsel. Defense counsel answered each request by either stating that the relevant information had been produced, that the defendant had no such information available, or that the home office was searching for such information and that if any was available, then it would be produced. Plaintiff's counsel responded by disputing the representations of defense counsel regarding the return of this subpoena. The trial judge's answer was that as to the disputed matters, a hearing would be held in order to settle any questions regarding the subpoena. From the record, it appears this hearing occurred on October 17, 1966.

From our examination of the record we find that no prejudicial error resulted with regard to the production of documents under the subpoenas. There are several examples which plaintiff has emphasized as proof of the prejudice alleged. Plaintiff argues that defense counsel denied the existence of any prior litigation involving similar machinery of the defendants. The subpoena called for all relevant data from the defendants' records concerning failures or lawsuits resulting from defendants' hoists that had occurred prior to September 30, 1960, the date of plaintiff's injuries. Defense counsel stated his clients had no such records, but his search had found a file with defendants' insurance company. This was produced, but plaintiff's counsel did not use this at the trial. Subsequently, the local sales manager of Manning, ...


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