Appeal from the Circuit Court of Winnebago County; the Hon.
Alford R. Penniman, Judge, presiding.
JUSTICE SCHNAKE DELIVERED THE OPINION OF THE COURT:
The plaintiff, Mitchell J. Mazanek, an employee of General Electric Company (GE), was injured in an electrical fire while cleaning a switchgear at a manufacturing plant of Rockford Drop Forge Company (RDF). GE had manufactured the switchgear and had sold it to RDF.
Mazanek brought a negligence action against RDF, seeking to recover damages for his injuries. RDF, in turn, filed a third-party action for indemnity against GE and one of its divisions, General Electric Supply Company (GESCO). The actions were tried simultaneously before a jury. During the trial Mazanek entered into an agreement with GE whereby, in return for $65,000 and a separate settlement of his claim against GE under the Workers' Compensation Act, Mazanek agreed to indemnify GE for any judgment rendered against it in the third-party action. In the underlying negligence action, the jury returned a verdict in favor of Mazanek and against RDF in the amount of $540,000. In the third-party action the jury found that RDF was entitled to indemnity from GE, but that such indemnity had been limited by a service contract to the cost of cleaning the switchgear, or $2,721.22. Judgment was entered on these verdicts, and RDF appealed.
In Mazanek v. Rockford Drop Forge Co. (1981), 98 Ill. App.3d 956, 424 N.E.2d 1271 (Mazanek I), this court held that the $540,000 judgment in favor of Mazanek and against RDF should be reduced by $65,000 to reflect the money paid to Mazanek by GE under their settlement agreement. In all other respects that judgment was affirmed. Concerning the third-party action, this court held that the jury should not have been called upon to construe the service contract, and that the limitation of liability clause in the contract was inapplicable. The judgment in the third-party action was, therefore, reversed, and that action was remanded for a new trial. Both Mazanek and GE had argued that RDF was barred from any indemnity, as a matter of law, because RDF was guilty of active negligence. This court declined to address that issue, however, concluding that it did not have jurisdiction to do so because neither Mazanek nor GE had filed a cross-appeal.
On remand counsel for Mazanek entered his appearance as additional counsel for GE in order to protect Mazanek's interests in the outcome of the third-party action. The matter was tried before a jury which found that RDF was entitled to indemnity from GE. Judgment was entered on this verdict in the amount of $646,950.28, representing the amount of the original judgment reduced according to this court's opinion in Mazanek I, plus interest and costs. GE has appealed, bringing the case before this court for the second time.
GE reasserts the argument it made during the first appeal, that RDF is barred from recovering indemnity, as a matter of law, because it was guilty of active negligence. GE maintains, alternatively, that various trial errors require reversal and remandment for a new trial. Finally, GE contends that there was no proper statutory basis for the award of a certain portion of the interest included in the judgment. Under the view we take of this case, it will be necessary to address only the first issue.
RDF purchased the switchgear involved in this case, an AKD-5 Powermaster, from GE in 1962, and it was installed in RDF's plant in 1963. The device was used to control the use of electricity in different locations in the plant. This control was achieved by circuit breakers which would trip open when too much current was drawn by the particular equipment involved. The circuit breakers were enclosed in compartments and were connected to stabs, or metal prongs, located at the back of the compartments. The stabs were extensions of bus bars which were located in separate bus compartments behind the circuit breaker compartments. Behind the bus compartments were the cable compartments at the back of the switchgear.
The switchgear was installed in the compressor room at RDF's plant. The room was not free of dust, but neither was it excessively dusty. The parties presented conflicting testimony regarding whether the AKD-5 Powermaster, which was not "dust-secure" equipment, was appropriate for that location. In 1963 dust-secure switchgears were available from GE. Walter Fulton, RDF's plant engineer from 1960 until 1977, testified that RDF selected the AKD-5 Powermaster for that location on the recommendation of Edmund Brown, an application engineer and sales representative for GE.
Along with the switchgear, GE provided RDF with a manual describing its construction and operation, and explaining installation and maintenance. The section on maintenance began as follows:
"A periodic maintenance schedule must be established to obtain the best service from the switchgear. An annual check and overall maintenance procedure for the switchgear devices and all connections, must be followed as a minimum requirement. Equipment subject to highly repetitive operation may require more frequent maintenance.
A permanent record of all maintenance work must be kept."
Underneath this introductory message there were separate headings for each of the different compartments of the switchgear. Under the heading "BUS COMPARTMENT" appeared the following entries, among others:
"a. Inspect the busses and connections carefully for evidence of over-heating or weakening of ...