APPEAL from the Circuit Court of Cook County; the Hon. HERBERT
A. ELLIS, Judge, presiding.
MR. JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:
In this case there are three appeals from judgments and orders entered in the Circuit Court of Cook County as follows: (1) defendants Service Machine Company and Web Machinery Company appeal from the verdict and judgment for plaintiff against them in the sum of $800,000; (2) plaintiff, Irene Wells, appeals from the judgment entered upon a directed verdict in favor of defendant Honeywell, Inc., and defendant Revere Electric Supply; (3) defendant Web Machinery Company appeals from the orders dismissing its counterclaims against defendant Honeywell, Inc., and defendant Revere Electric Supply, and the order dismissing its third-party complaint against third-party defendant R.D. Werner Company, Inc.
The numerous issues presented for review are discussed hereinafter.
This is an action originally brought by the plaintiff for damages resulting from injuries to her hands on March 1, 1967, in the operation of a punch press. The defendants named were Service Machine Company ("Service"), the manufacturer of the punch press; Web Machinery Company ("Web"), the distributor of the press; Honeywell, Inc. ("Honeywell"), the manufacturer of a component part of the press; and Revere Electric Supply ("Revere"), Honeywell's distributor.
Plaintiff's initial complaint was in two counts raising the theories of negligence and strict liability. With leave of court, plaintiff later amended the complaint alleging breaches of warranty, both express and implied.
In due course in this litigation several cross-actions were filed among the various defendants. Web filed counterclaims against Service, Honeywell and Revere for implied indemnity alleging theories of negligence, implied warranty and strict liability. Web also filed a third-party complaint against the plaintiff's employer, R.D. Werner, Inc. ("Werner") for indemnity on a theory of negligence. Revere also filed a counterclaim against Honeywell for indemnity alleging theories of negligence and strict liability. Service filed a third-party action against Werner.
Following trial of this cause, a verdict was returned in favor of the plaintiff against Service and Web in the amount of $800,000. Motions for a directed verdict by Honeywell and Revere were granted and judgment was entered thereon. Judgment was also entered for Web on its counterclaim against Service. Prior to trial, Web's counterclaim against Honeywell and Revere had been dismissed by the motion court and at the time of trial the trial judge denied Web's motion to vacate that order. The third-party complaints of Service and Web against Werner were also dismissed following the entry of the verdict and judgment in favor of the plaintiff and against Service and Web.
The various appeals taken from the proceedings in the trial court are set forth above.
It does not appear that Service has appealed from the judgment entered against it and in favor of Web on indemnity, nor from the order dismissing Service's third-party complaint against Werner.
The pertinent facts are somewhat complex. On March 1, 1967, the plaintiff suffered severe and disabling injuries to her hands while forming ladder steps for Werner on a Rousselle punch press. The ladder steps were formed by the ram of the press which was set in single cycle operation. It is undisputed that the plaintiff was free from any misconduct on her part which would defeat her cause of action.
The punch press in question was manufactured by Service in 1965 and was shipped to Web, its distributor, on April 16, 1965. The original design of the press, and specifically the electrical circuitry on the press, was formulated in 1953 solely by William Heim, the president of Service at that time.
In its single-cycle operation, the punch press is activated by the pressing of two palm buttons by the operator. This action initiates the downward movement of the ram, which comes down to exert a pressure of 60 tons against the die in the bed of the press. As the press continues its single cycle operation, the ram returns to an up position and is supposed to stop at the top by the action of a limit switch. The design of the press is such that a triangular shaped ram, mounted on the crankshaft, presses in the actuator arm of the limit switch causing the actuator arm to depress a plunger of the switch, which in turn interrupts the electrical current causing the machine to stop. In the event there is no interaction of the actuator arm there would be no interruption of the electrical current and the press would continue to cycle, that is, the ram would continue to go up and down until the electrical circuit was interrupted by some other means.
On the day prior to the occurrence in question, Werner's maintenance man, Pat Scotti, was ordered by his foreman, Noel Peters, to replace the limit switch which was originally placed on the press by Service. This original switch bore the tradename "Licon" and was manufactured by the Illinois Tool Works, a firm not a party to the lawsuit. The switch which was replaced bore the tradename "Microswitch" and was manufactured by Honeywell. It is undisputed that these two types of switches were interchangeable on the press involved.
The next day, March 1, 1967, at about 8 A.M., the plaintiff set the press for single cycle operation and had worked with it for some 6 hours with no problems. About 2 in the afternoon in the process of her work, she had placed an aluminum form in the bed of the press and then activated the press by pressing the palm buttons so that the ram came down to bend the aluminum into a step and then went back up. She then reached into the bed of the press to remove the step when, without warning, the ram came down and caught her hands. It continued to cycle and strike her hands causing severe injuries to them. She was taken immediately to the hospital.
After the accident, Werner's foreman, Noel Peters, made an examination of the press to determine what had occurred and discovered that part of the actuator arm on the microswitch was missing. Consequently there was no way to interrupt the electrical current when the ram reached the top of its stroke and the ram would therefore continue operating although set for single cycle operation. Peters removed the switch from the press and dismantled it in the presence of Robert Werner, vice-president of Werner. They determined that there was nothing else wrong with the switch other than the broken actuator arm.
Plaintiff offered substantial evidence of the defective design of the press.
Under cross-examination as an adverse witness, William Heim, Service's former president and the only person in the employ of Service who had anything to do with design of the press and its electrical circuitry, testified that his formal education ended with graduation from Tilden High School. He started with Service in 1943 or 1944, and prior to the design of the press involved in 1953, had no formal education with respect to the design of presses or the electrical circuitry in presses. The original design by him in 1953, which he stated could have been copied from some other manufacturer's circuitry, provided for a closed circuitry wiring. This meant that there would be electrical current to maintain the circuitry until the current was broken by action of a limit switch.
Heim further testified that the original design of the circuitry remained unchanged to the date of the occurrence. Heim admitted that in 1953 he knew that if the circuitry was designed in a closed position rather than open, the failure of a single limit switch would have stopped the press. He was also aware as early as 1955 that Honeywell was marketing a trip control containing two limit switches and in 1960 or 1961 he knew that other manufacturers of presses or component parts such as Munster and Niagara, like Honeywell, offered a tandem limit switch control, wherein, if one switch failed, a second or third switch would keep the machine operating properly and prevent recycle in a single cycle operation. He admitted those designs were safer and, despite this awareness, he did nothing to change the design of the press or the circuitry.
In 1963, Heim caused certain information to customers to be placed in the Service Instruction Book, a manual accompanying the sale of a press, stating the reason for the failure of the press to stop or to recycle while in single cycle operation was either the limit switch was not properly positioned or was defective. He admitted that in the event of a recycling on a single cycle operation, the ram could catch the hands of a person while hand-setting something in the die area. Heim further stated that the Service presses were advertised as being fail-safe; however, he admitted that the fact the press would recycle in the event of the failure of the single limit switch in single cycle operation means that the machine was not designed in a fail-safe manner.
Robert E. Janis, the present president of Service who was sales manager on the date of the sale of the machine to Werner in 1966, also identified the customer information in Service's 1963 customer instruction manual relative to the possibility of recycling because of a defective limit switch. He stated in 1963 he and the company were aware of this possibility of recycling while the machine was on single-stroke setting, but to his knowledge no change in the design was made thereafter to the date of the occurrence. He also testified that Heim was the only person within Service who would make any change in the design of the press or its electric circuitry.
Eugene Scheiblauer, a mechanical engineer employed by Honeywell, testified that as early as 1954 Honeywell had developed a control package for power presses which contained a minimum of two and sometimes three limit switches and which was sold nationally. This design, termed a tandem or redundant control system, protected against the recycling of the ram in the event of a failure in one limit switch. The second switch would respond in the event of such a failure and would maintain the control and not recycle and it also contained a means of stopping the press even if both limit switches failed.
In response to a hypothetical question, Scheiblauer stated the design of the press in question was unsatisfactory because the press depended on a single limit switch on every stroke to operate correctly. This limit switch was subject to wear and would eventually fail and in its usage, "it was virtually assured that the press ...