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Sheldon Livestock Co. v. Western Engine Co.

SEPTEMBER 17, 1973.

SHELDON LIVESTOCK COMPANY, INC., PLAINTIFF-APPELLEE,

v.

WESTERN ENGINE COMPANY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Du Page County; the Hon. GEORGE W. UNVERZAGT, Judge, presiding.

MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:

The plaintiff, Sheldon Livestock Company, Inc., filed a three count complaint against Western Engine Company as agent, and Detroit Diesel Company as principal, seeking damages for repairs and loss of time and use of its truck-tractor as the result of an overhaul of the truck by Western Engine Company. Count I alleged negligent repair; Count II alleged breach of contract to perform in a workmanlike manner; and Count III alleged breach of express warranty. Detroit Diesel's motion for summary judgment was granted on the basis that Western Engine Company was not its agent. The case proceeded to trial, was submitted to the jury on only the first two counts, and resulted in a verdict for plaintiff in the amount of $5,350. Defendant appeals from the judgment entered on the verdict.

Defendant contends: (1) That the court erred in instructing the jury on both contract and negligent theories, claiming that this prejudicially allowed two avenues of recovery for breach of the same alleged duty of ordinary care; (2) that the testimony of plaintiff's expert witness on causation lacked proper foundation, and further, applied standards of care which were neither universal nor applicable for defendant's locality; (3) that plaintiff failed to prove freedom from contributory negligence by failure to produce evidence of proper use, maintenance or repair for the 90,000 miles the engine ran after defendant's overhaul; and (4) that undocumented evidence of loss of profits was improperly admitted.

The evidence shows that in December, 1969, defendant performed an overhaul on the Detroit Diesel engine of plaintiff's truck at a cost of $3,479.29. It is agreed by both parties that no main bearing stabilizers were installed during this repair. Approximately 10 months and 90,000 miles later, the truck broke down. Carroll Bole, the major stockholder and principal operating officer of plaintiff company, testified that the truck broke down on the highway, and was towed some 25 miles to the International Harvester dealer in Indianapolis, Indiana. Bole went there and saw the engine completely out of the frame, disassembled, and lying on the floor. He saw that the crankshaft was broken. The International Harvester dealer replaced broken flywheel bolts, but Bole did not know if they installed a new flywheel. He said the flywheel was not broken but the holes where the bolts went were worn to the point that they thought a new flywheel should be installed. (In plaintiff's briefs it is conceded that a new flywheel was installed.) The clutch was also overhauled. The truck was then towed to Nixon Detroit Diesel in Nashville, Tennessee, where the crankshaft was repaired at a cost of $5,265.52. Bole also testified that during the time between defendant's work and the later breakdown the truck was used for hauling livestock, as it had been before the repairs.

Among the exhibits admitted in evidence were photographs of the engine as it lay disassembled at the International Harvester shop together with a bill. The bill contained the legend "Removed broken flywheel bolts & studs. * * * Used new flywheel bolts and dial pins (flywheel furnished by customer)."

Lee Lovelady, the general service manager for Nixon Detroit Diesel, also testified for the plaintiff. He stated, over defendant's objection that there was no proof the engine was in the same condition as on the date of its breakdown, that he examined the engine at his shop and found that the main bearing bolt to the crankshaft was broken. He said there were no stabilizers and that in 1968, pursuant to Detroit Diesel Company publications dated December 1966 and January 1967, which stated that stabilizers "are being used" to increase the rigidity of the two main bearing caps, he did not do an overhaul without installing main bearing cap stabilizers. He stated that the purpose of main bearing cap stabilizers is to stabilize the two rear main bearings from vibrating and receiving undue stress. Over objection he stated his opinion that the broken bolt could and would be caused by defendant's failure to install the stabilizers during the overhaul. He said that without them the vibrations of the engine caused the main bearing cap to loosen, causing the bolts to break, and it is then a matter of time until the crankshaft breaks. He said that he did not remember the condition of the flywheel. Asked on direct examination whether the condition of the flywheel was important in regard to the cause of the crankshaft breaking, Lovelady testified:

"A. The condition of a loose flywheel being run along a period of time, it sets up a vibration which in turn would break the main bearing bolt and in turn would break the crank.

Q. Well, does the loosening of the flywheel, is there any causal relationship between the failure to have a main bearing cap stabilizer and the loosening of the flywheel?

A. It definitely would have a lot better chance if the stabilizer was on it.

Q. Why do you say that?

A. Well, here again you are stabilizing the top of your main bearings to the point where they are held more rigid on both sides. There was no working problem from one side to the other."

On cross-examination, Lovelady said that the bad clutch or loose flywheel could cause vibrations in the crankshaft, and that these were general maintenance items. The cross-examination continued:

"Q. The place where the crankshaft broke is over here at the left of the picture, isn't it? Three places removed, isn't that right?

A. There is loss of support here. The main bearing loosens up and the crank starts turning inside the block and there is no support all the way up. That's what caused it to break.

Q. Have you ever had occasion in your years of experience with these to have a crankshaft break and ...


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