APPEAL from the Circuit Court of Cook County; the Hon. P.A.
SORRENTINO, Judge, presiding.
MR. PRESIDING JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Defendants International Harvester (Harvester) and John Woods (Woods) appeal from a bench trial finding in strict liability and judgment for $125,000 for plaintiff Ronald Frisch (Frisch) for personal injuries sustained by Frisch in a fire while using a tractor manufactured and distributed by Harvester to Woods who sold it to Frisch. Harvester also appeals a judgment for Woods for $125,000 on his indemnity counterclaim against Harvester.
The following issues are presented for review:
(1) whether Frisch has proven defendants are liable in strict liability;
(2) whether Frisch is precluded from recovery by the doctrine of risk;
(3) whether errors occurred during the trial so as to preclude the defendants from receiving a fair trial;
(4) whether the finding in favor of Woods on his indemnity counterclaim against Harvester was error; and
(5) whether the judgment of $125,000 was excessive.
Frisch, in his complaint based on strict liability in tort, claimed that on May 4, 1959, while in the exercise of ordinary care for his own safety and using a McCormick Farmall 350 tractor, designed, manufactured and sold by Harvester to Woods, a spray of gasoline from the tractor ignited and burned him. Joined as co-defendants were Harvester and Woods, the latter who sold the tractor to Frisch as well as supplied accessories and serviced the tractor. Woods counterclaimed against Harvester for indemnification, based on breach of an implied warranty and strict liability in tort. Harvester counterclaimed against Woods on an active-passive theory *fn1 and also filed a third-party complaint against the company which manufactured and supplied the tractor fuel cap, but then moved to voluntarily dismiss the latter from the litigation.
The following is a summary of the pertinent evidence. To understand the condition of the tractor at the time of the incident, a description of the cap on the tractor at the time of the incident is essential. As originally delivered by Harvester to Woods, the tractor contained a flat cap. A Woods employee exchanged the cap for a fuel gauge previously obtained by Woods from a Harvester parts depot. It was the fuel gauge cap that was in use at the time of the incident.
In the center of the top of the cap is a fuel gauge. Two metal rods extend down through the cap and, when inserted through the filler neck of the tank, continue on into the tank. On the bottom of the cap is attached a piece of metal which narrows horizontally into two "tangs." *fn2 These "tangs," when the cap is inserted into the filler neck, drop into two openings in the rim of the neck. When the cap is turned clockwise, the tangs engage the rim until they encounter two vertical downward extensions. Just prior to these encounters, the rim rises slightly on both sides such that, when engaging, the tangs also rise. These rises in the rim were referred to at trial as "notches" or "detents" and constitute the locking mechanism on the tank.
Between the two metal rods extending downward from the cap is a cork floater which, by means of a spiralling rod in the center of the floater, registers on the gauge the amount of gas remaining in the tank. In the cap itself are four baffles, of which only the baffle closest to the top of the cap is at issue here. Around the gauge at the top of the cap is a small air vent hole and a legend reading "BUY CLEAN FUEL KEEP IT CLEAN." *fn3
The tractor in issue (Frisch tractor) was a McCormick Farmall 350 assembled by Harvester on April 25, 1957. Prior to shipment to Woods the following day Harvester alleges an inspector tightened a cap on the filler neck of the gas tank to determine if the locking mechanism had the "proper tension." Gasoline was also put in the tank and the entire tractor inspected. Upon arrival at Woods' shop, an employee also inspected the entire tractor. When the fuel gauge filler cap at issue (Frisch cap) arrived at Woods' parts department an employee examined it. It was subsequently installed on the Frisch tractor.
Frisch purchased the tractor from Woods on September 18, 1958. He was given an owner's manual which, Woods asserted, was the only information Frisch received concerning the operation and maintenance of the tractor. The manual contains no warnings that pressure or vibration could cause the cap to loosen or of the importance of securing the cap in a locked position while the tractor is in operation. Additionally, no legends appear on the cap or the tank warning potential users that pressure or vibration could cause the cap to loosen or of the importance of securing the cap in the locked position while the tractor is in operation.
For seven months, Frisch put the tractor to a variety of uses on the 160-acre farm he was leasing in Ottawa, Illinois. During this period, the tractor was serviced by Woods' shop at least five times. The repair closest related to the gas tank was performed by Frisch himself when, after receiving advice and instruction from one of Woods' employees, he repaired a leak in the sediment bowl located below the gas tank. An inspection after the accident showed this repair to have been completely effective and not at all involved in the accident.
Frisch observed on two or three occasions, during later March or April of 1959, that the fuel gauge filler cap had become "partially disengaged" to the extent of "approximately one inch" from the locked position. He noticed this disengagement due to the gauge not being in its normal position, and that when so disengaged the cap would "wobble a little bit." He allegedly corrected this problem each time by screwing the cap back to the locked position, after which, he testified, it remained locked.
On May 4, 1959, Frisch filled his tractor tank with gasoline from an overhead tank he maintained on the premises. From 6 to 9 a.m., he plowed ground corn with a three-bottom plow (the plow intended for a Farmall 350) without difficulty. After a half-hour break, he refueled observing at that time neither any unusual noises nor any fuel coming out of the tank. He testified he relaced the cap securely in the locked position. After plowing for 30 minutes, he met a neighbor, Charles Conger, at a mutual fence line. Both men turned off and disembarked their tractors, talking at the fence line for 15 to 20 minutes. At trial, Frisch testified he did not turn the gas cap but may have had his hand on it while talking to Conger. When he got back on the tractor he noticed nothing unusual about the position of the cap.
As Frisch resumed plowing, the weather was clear and the temperature was, according to various estimates, in the 90's, with a wind from the east. After Frisch proceeded down and up two "dips" in the land, during which the engine began sputtering and almost stopped, he observed he was plowing clay. While turned around to raise the plow out of the ground, he heard a small "click." Turning again to the front, he saw the gas cap was "fully extended" and "leaning slightly towards the left," apparently with the metal rods resting on the filler neck. A column of gas shot up 6 to 8 feet and spread out covering the top half of his body with raw gasoline. He testified he then shut off the motor and jumped from the tractor. Finding himself to be on fire, he rolled on the ground to put out the flames and ran home where his wife took him to the hospital.
Seeing black smoke, Conger and two neighbors drove to Frisch's farm in Conger's pick-up truck. Conger testified a flame of from three to four inches was arising from the filler neck. Finding no one at Frisch's house, Conger proceeded to the home of Earl Anderson, Frisch's father-in-law. Anderson testified he went out to the tractor and observed the gauge cap leaning on the rods on the neck out of which was burning a flame of about five to six inches. He removed the cap with his handkerchief, the flame came out with the cork floater, and he rolled the floater on the ground to extinguish the flame. He then wiped the back of the cap off and put it back in the tank.
Frisch called two employees of Harvester as section 60 witnesses. (Ill. Rev. Stat. 1967, ch. 110, par. 60.) Actually, one of the witnesses, Rudolph A. Holmberg, in charge of liason activities between Harvester and Rochester Manufacturing Company (manufacturer of the caps in issue) from 1955 to 1957, had ceased employment with Harvester just prior to his testifying. Holmberg testified that a test group at Harvester had designed both the baffles and the shell and had tested the cap after it had been developed by Rochester. He also testified to changes he had ordered in the alignment procedure and size of the vent holes, but that such changes did not extend to caps in the "territory." Thus the Frisch cap, already in the parts department at Woods' shop, was not so changed. An indication that Holmberg considered the previous procedure defective is found in the fact that he authorized the parts depots and tractor works to bill Rochester for the expenses of reworking the caps. In the course of examining Holmberg, plaintiff introduced into evidence letters of complaint and of various developments concerning pressure and vibration problems with Harvester gas tanks, which introductions defendant cites as error.
Richard Coleman, head of the test group referred to by Holmberg, was also called as a section 60 witness. He alleged he was "probably sure" a cap could not come loose with vibration, since none had done so in the various "torture" tests to which the tractors examined had been put and since tests conducted on a vibration table were unable to dislodge the cap from a locked position. No specific tests, however, were conducted on tractors as to this potentiality. Coleman also alleged various vent hole sizes had been tested and that the 1/16" size was found to be the "optimum for tractor operation." While he also alleged clearance between the shell and baffle made no difference in venting, he conceded the test group had recommended a clearance of 1/8 inch.
The characteristics of the Frisch cap were testified to by expert witnesses called by Frisch. It was undisputed that the vent hole size was .063" (about 1/16"), that "something solid" in the first baffle prevented a pin stuck through the hole in the shell from proceeding further, and that the clearance between the shell and baffle varied but was, at maximum distance, about .013 inches. The width of the tangs was variously measured as being between .368" and .375" and the notches or detents as between .33" and .408 inches. An expert witness for Frisch measured the height of the notches or detents as between .008" and .010" or the equivalent of three to four strands of hair. It was undisputed that there was no positive stopping device in the notches and that the tangs were, in fact, wider than the notches even with the variance in measurement testified to as noted above. Recommendations of the American Society of Engineers promulgated after the incident were introduced which suggested that the notches should be more than 1/2" and the tangs between 1/4" and 3/8" with the notches larger than the tangs so no question exists that the tangs are engaged. Harvester's witnesses contended at trial, however, that the fact the tangs were wider than the notches made no difference since, due to the curve of the tang, there was ...