APPEAL from the Circuit Court of Peoria County; the Hon.
ALBERT PUCCI, Judge, presiding.
MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
Rehearing denied August 29, 1979.
This is an appeal from orders entered by the circuit court which granted the motions of the defendants McNeil Corporation and W.W. Richardson Equipment Sales Company, Inc., for a directed verdict against the plaintiff, Richard L. Smith, and denied plaintiff's motion for a directed verdict on the affirmative defense of assumption of risk filed by the defendants.
This case was commenced by the plaintiff filing an action against the defendants for injuries he received while using a press brake machine. The action was predicated on strict products liability against the manufacturer of the machine, the defendant McNeil Corporation, and the seller of the machine, the defendant Richardson Sales Company.
Several issues have been raised by the plaintiff in this appeal and we first direct our attention to his contention that the trial court committed reversible error in granting the defendants' motions for directed verdict during the presentation of their (the defendants') case.
In order to place this issue in the proper perspective it is necessary that there be set forth a narration of the events which transpired before the trial court. The plaintiff was injured on June 1, 1973, and his complaint was filed on May 30, 1975. After the filing of an amended complaint, and having had extensive discovery, consisting of some 16 depositions of the parties, witnesses and experts, as well as interrogatories and the filing of answers by the defendants, the matter finally came on for trial on June 12, 1978. At the conclusion of evidence on the fourth day of trial and near the end of the plaintiff's evidence, the defendant McNeil moved the court for leave to file an affirmative defense of assumption of risk. The affirmative defense desired to be filed read as follows:
"This defendant further states that the plaintiff assumed the risk of injury from the danger or unreasonably dangerous condition which caused his injury."
This was the first indication of the defendant's reliance upon the defense of assumption of risk. In spite of the extensive pretrial discovery conducted by the parties there was no affirmative defense of any kind pleaded in the answer of either of the defendants.
On the next day of trial, before the resumption of further evidence, the plaintiff moved to strike defendant McNeil's motion to amend. The plaintiff's motion to strike was denied and the defendant McNeil's motion to amend was allowed. The defendant Richardson then orally adopted the same affirmative defense of assumption of risk as part of its answer. At the close of the plaintiff's testimony both defendants moved for a directed verdict on the affirmative defense of assumption of risk. These motions were denied. At the close of plaintiff's evidence the defendants again moved for a directed verdict. At this time the plaintiff moved for a directed verdict in his favor and against the defendants on the defense of assumption of risk. The trial court reserved ruling on all of these motions. The defendant McNeil then proceeded to present his case in chief and the court heard testimony from three witnesses, including further cross-examination of the plaintiff under section 60 (Ill. Rev. Stat. 1977, ch. 110, par. 60). On the following day prior to receiving further evidence from the defendant McNeil the trial court, without any further motions from the parties, denied plaintiff's motion for directed verdict on the defense of assumption of risk filed by the defendants, but granted each of the defendants' motions for directed verdict which had been filed at the close of the plaintiff's evidence.
In order to determine whether the trial court had authority to grant the defendants' motion for directed verdicts it is necessary that we examine certain statutory provisions and the decisions of our reviewing courts> interpreting these provisions. The pertinent and only statutory authority which grants a trial court the right to grant motions for directed verdicts is found in the Civil Practice Act and reads as follows:
"If at the close of the evidence, and before the case is submitted to the jury, any party moves for a directed verdict the court may (a) grant the motion or (b) deny the motion or reserve its ruling thereon and submit the case to the jury. If the court denies the motion or reserves its ruling thereon, the motion is waived unless the request is renewed in the post-trial motion." Ill. Rev. Stat. 1977, ch. 110, par. 68.1(1).
Decisions from our reviewing courts> which construed the statutory provisions pertaining to directed verdicts are based upon a prior provision in our practice act. The language of that provision was as follows:
"Hereafter, in all civil actions at law, in courts> of record, if either party shall at the close of the testimony, and before the case is submitted to the jury, request the court for a directed verdict in his favor, the court may reserve his decision thereon, and submit the case to the jury under proper instructions as to the law applicable to such case." Ill. Rev. Stat. 1941, ch. 110, par. 192(3)(a).
The language in this latter quoted section is essentially the same as the provision first set forth and which is applicable in the instant case. The joint committee comments regarding section 68.1 of our present Civil Practice Act are to the effect that only minor language changes were made for the purpose of accuracy and economy of expression. ...