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Lynch v. Precision Machine Shop

OPINION FILED DECEMBER 17, 1982.

RICHARD E. LYNCH, APPELLEE,

v.

PRECISION MACHINE SHOP, LTD., APPELLANT.



Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Perry County, the Hon. Robert Bastien, Judge, presiding.

JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:

Plaintiff, Richard E. Lynch, brought suit in the circuit court of Perry County to recover a money judgment allegedly due him from defendant, Precision Machine Shop, Ltd. The action arose out of repair work plaintiff performed for defendant on a river-barge transmission and on the gear box of a boring mill. Defendant counterclaimed for damage allegedly caused by plaintiff to the gear box and for additional sums expended while the mill was out of commission. Following a bench trial, the trial court entered final judgment in the sum of $2,270 to plaintiff for repairs performed on the barge transmission, but denied plaintiff recovery for his repairs on the boring mill. The court entered judgment in favor of defendant on its counterclaim in the amount of $9,033.76 for repair of the gear box and $3,300 for extra expenses incurred by defendant in completing a job without use of the mill. The appellate court affirmed the portion of the judgment pertaining to the barge transmission. With respect to the boring mill, a majority of the appellate court reversed the trial court's judgment on defendant's counterclaim and entered judgment for plaintiff of $2,441.32 for his work on the mill. 100 Ill. App.3d 771.

The questions before us relate only to plaintiff's repair work on the boring mill. They are: (1) Did defendant, as counterclaimant, establish the necessary elements of res ipsa loquitur to support its judgment for repair of the gear box? (2) Was defendant entitled to damages incurred during the period of repair of the gear box?

The facts reveal the boring-mill gear box is approximately three feet long, two feet high and one and one-half feet deep. It is made of cast iron and contains the gear mechanisms and clutches for the mill. The top quarter of the gear box is a solid cast-iron cover weighing between 400 and 500 pounds. It is attached by nine bolts and two dial pins; its removal requires a hoist and at least two people working several hours. The cover has some "oil openings" estimated at between 1/16 to 3/16 inches in diameter. A hole approximately 1 1/2 inches in diameter is located at the rear of the box. With the cover in position, it is unlikely that anything other than oil could be inserted into the gear box.

In 1975, the first year defendant was in possession of the boring mill, plaintiff performed some repair work on the machine. The record does not indicate that the cover was removed for that work. Then in July through September of 1976, plaintiff performed additional work on the machine that necessitated removal of the cover. Plaintiff testified that he was assisted in these repairs by several of defendant's employees. At the conclusion of the work, prior to replacing the cover, he inspected the gear box visually and manually and found no foreign objects. Plaintiff also stated that the cover would not fit if foreign materials were present.

From September 1976 to March 1977, the cover to the gear box was not removed. During this period, the mill was used to bore one or two wheels, each taking approximately six hours. The testimony indicated that this operation did not require full use of the feed mechanism.

In March 1977, plaintiff was called to install a transmission at the rear of the gear box, a job that required removal of the cover. He was assisted by at least one of defendant's employees and by a contractor he employed. The cover was removed by these employees just prior to his arrival. Plaintiff testified that before the cover was replaced at the conclusion of the job he inspected the interior of the gear box but did not reach down and check the oil pan "in explicit detail." He stated that he observed no foreign objects. Plaintiff tested the machine but did not run a workpiece on it. Precision paid Lynch for the 1976 work but not for the 1977 repairs.

Following installation of the transmission in March, the mill was used, without incident, to bore two wheels, each wheel taking between six and 12 hours. Subsequently, in November 1977 Larry Hays, defendant's machinist, was using the mill to rebore a large log loader. The task entailed use of the full feeding mechanism. At this time the mill made a "breaking sound" and stopped functioning 15 minutes into the job. Hays told the shop foreman, Clifford Browning, of the incident and, for the first time since plaintiff's previous repair work, the cover to the gear box was removed. The two men observed that six teeth were missing from one ring gear, another ring gear was broken, and the planetary gear housing was cracked. They discovered a chisel, a section of file and two brass washers in the oil reservoir at the bottom of the gear box. The chisel was chipped in a way that would suggest it might have been between the gears. The witnesses agreed that none of these objects should have been in the oil reservoir, although the two washers should have been attached to parts elsewhere in the gear box.

Plaintiff testified that the chisel and file could have caused the damage to the gear box but that other things, such as worn parts, also could have been responsible. He stated his belief that it would be nearly impossible for the oil in the pan to throw the chisel into the gear assembly. Hays testified that the 50-weight oil in the reservoir was so heavy that a light chisel would almost float in it. In his opinion, the gears operating at a fast rate of speed could cause enough turbulence for the oil to pick up the chisel and cause it to catch in the assembly's gears. Browning also testified that the churning action of the oil could pull the chisel from the bottom of the gear box.

Neither a chisel nor a file was used in removing the gear-box cover when the problem occurred in November 1977. Plaintiff did not remember using a chisel, but did testify that a file was used in repairing the gear box both in 1976 and in March 1977. Plaintiff, Hays, and Browning all testified to the effect that it would be very difficult, if not impossible, for the chisel and file to enter the oil reservoir without removal of the gear-box cover.

Browning also testified that defendant's employees repaired the boring mill at a cost of $9,033.76. He further stated that, because the mill was out of commission, the job in progress had to be performed with portable units. This resulted in 200 additional hours of work at $16.50 per hour. Based on these figures, the trial court made the above-stated awards on defendant's counterclaim.

As noted above, the first issue is whether res ipsa loquitur is applicable under the facts of this case. As has been repeatedly observed by this court, the res ipsa loquitur doctrine allows the trier of fact to draw an inference of negligence from circumstantial evidence. To avail itself of the doctrine, plaintiff (in our case, counterclaimant) must demonstrate that he was injured (1) in an occurrence that would not have occurred in the absence of negligence, (2) by an instrumentality or agency under the management or control of the defendant (here, counterdefendant), and (3) under circumstances indicating the injury was not due to any voluntary act or neglect on the part of the one claiming the doctrine. Kolakowski v. Voris (1980), 83 Ill.2d 388, 394; Spidle v. Steward (1980), 79 Ill.2d 1, 5; Metz v. Central Illinois Electric & Gas Co. (1965), 32 Ill.2d 446, 448-49.

The dispute in this case centers on factors (2) and (3). With respect to factor (2), defendant argues that it is not required to establish "exclusive" control on the part of plaintiff. Rather, defendant asserts, only "control or management" must be demonstrated. Plaintiff contends that control and exclusive control mean the same thing. That meaning, according to plaintiff, is control from which it can be inferred that the negligence was not caused by someone other than himself. Plaintiff posits that in order to ...


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