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03/17/89 Mitchell Wheeler, v. Sunbelt Tool Company

March 17, 1989

MITCHELL WHEELER, PLAINTIFF-APPELLANT AND CROSS-APPELLEE

v.

SUNBELT TOOL COMPANY, INC., ET AL., DEFENDANTS-APPELLEES AND CROSS-APPELLANTS (EVANS IMPLEMENT COMPANY, DEFENDANT)



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

537 N.E.2d 1332, 181 Ill. App. 3d 1088, 130 Ill. Dec. 863 1989.IL.335

Appeal from the Circuit Court of McLean County; the Hon. Ronald C. Dozier, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE McCULLOUGH delivered the opinion of the court. SPITZ and GREEN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

Mitchell Wheeler, plaintiff, was injured while using a "Chain-A-Part" tool to break a gathering chain on his employer's combine. A fragment of metal entered plaintiff's left eye after the punch on the tool broke. Plaintiff sued defendants, alleging the tool was unreasonably dangerous and alleging defendants had breached a warranty that the punch would not break. The jury returned a verdict for defendants on the products liability count and returned a verdict for plaintiff and against Sunbelt Tool Company, Inc. (Sunbelt), and Smith Tool Company, Inc. (Smith Tool), on the warranty count. However, the jury reduced plaintiff's damages award by 80% due to a finding that he misused the product.

Plaintiff appeals, arguing: (1) misuse is not an affirmative defense in a products liability action based upon breach of warranty; (2) a product cannot be misused when it is used for the purpose intended by the manufacturer; (3) the trial court erred in its rulings on instructions concerning misuse; (4) the trial court committed prejudicial error in failing to give a form of the verdict which required itemization of damages; (5) the trial court erred in restricting examination of a witness to show bias; (6) the trial court erred in allowing Smith Tool to amend its answer; (7) plaintiff was entitled to judgment notwithstanding the verdict on count VII; and (8) the trial court erred in finding no jury trial was available on count VII.

Defendants cross-appeal, arguing they are entitled to judgment notwithstanding the verdict on the warranty count and alternatively arguing the trial court erred in refusing their special interrogatory.

We affirm.

Sunbelt and its successor corporation, Smith Tool, manufactured the tool involved in the instant case. Lloyd Smith, the retired chief executive officer of Smith Tool, stated Rains Manufacturing Company (Rains) developed a rivet tool. Rains became S/V Tool Company (S/V Tool), which modified the Rains tool into the Chain-A-Part. S/V Tool Company was incorporated as Sunbelt. Smith Tool had assumed the assets and liabilities of Sunbelt. Subsequently, Smith sold his stock in Smith Tool to Center Industries.

The purpose of the Chain-A-Part tool is to break apart old and new roller chain. Roller chain consists of a series of outer and inner plates with cylinders at each end of the link. Bicycle chain is roller chain. The links are held together by chain pins, rivets, running through the holes in the cylinders, which are pressed against the outer plates, but are free on the inner plate. The chain pin protrudes over the outer plate. The size of roller chain is measured by the distance between the pins. Size 50 chain has five-eighths of an inch from the center of the first pin to the center of the next. Size 60 chain measures six-eighths of an inch between chain pins. Size 80 chain measures one inch between the centers of the chain pins. Pin size is standard for each dimension of chain. Size 80 chain would have a larger pin than size 60 chain. New roller chain is tight with very little lateral movement as no spaces exist between the parts. As the chain wears, spaces develop and the chain loosens. Roller chain will not function correctly if it is too loose. Therefore, it is necessary to remove links to ensure a proper fit.

The Chain-A-Part was designed to remove the chain pins. The body is iron. The top of each end of the tool contains a bolt screw, punch, and cylinder. The bottom of each end has a hole through which the broken chain pin falls, when punched out of the chain. One end of the tool is stamped 50/60; the other end of the tool is stamped 80.

Terry Michael Bender testified plaintiff was repairing a chain on a cornhead of a combine and needed to remove a section of the chain to shorten it. Plaintiff placed the chain in between the tool slot and centered the punch over the top of the chain pin. Plaintiff used a crescent wrench to screw the punch down to break the rivet. He had turned the top bolt six times when the injury occurred.

Bender stated no noise preceded the incident. He saw the chain tool fall to the ground and saw plaintiff grab his eye. Bender observed the tool the following morning and noticed the punch was broken. The punch was not broken when he and plaintiff started to use the tool the preceding day. Bender did not remember seeing any instructions for the tool's use. He never saw anyone show plaintiff how to use the tool. Bender stated he never saw plaintiff turn the sleeve (cylinder) down to the chain. However, he was sure plaintiff did so. Bender examined a chain which he believed was the chain involved in the incident. One chain pin had been partially pushed through the links, tightening the loose spaces. Bender stated the chain appeared to be larger than size 80 chain. Plaintiff was using the 50/60 end of the tool.

Dale Evans, plaintiff's employer, stated he saved the chain involved in the incident, but forgot it until an employee reminded him of it. Evans and his father own Evans Implement Company (Evans Implement). The tool belonged to the company. Evans stated to the best of his knowledge, the company had an open house in January, February, or March 1980. He believed the tool was a gift from one of the representatives who participated, Fesco Equipment Company (Fesco). Evans could not verify the date of the open house. He did not show plaintiff how to use the tool, which was packaged when received. He had not read any instructions associated with the tool. Evans further stated that he had no idea at which open house the tool was given to the implement company. There was no way to be sure which year the open house was held in.

Plaintiff testified he worked for Evans Implement setting up and repairing farm machinery. Prior to the instant incident, he had used the Chain-A-Part tool two or three times. No one had demonstrated for him how to use the tool. He did not see any instructions. At approximately 11:30 a.m., he and Bender were repairing a combine with a cornhead. The gathering chain on the cornhead was too loose for proper adjustment. He thought it would be a good chance to show Bender how to use the tool. Plaintiff put the chain in the tool and ran the punch out of the barrel (cylinder) approximately one-eighth of an inch. Then, he lowered the cylinder until the punch touched the chain pin. He started to push the chain pin through. After three, one-quarter turns he felt something hit him in the eye. Plaintiff stated he used the 50/60 end of the tool. He did not know the sleeve's (cylinder's) purpose was to protect and support the punch. Plaintiff admitted that he may have made a contrary statement during a deposition. Plaintiff agreed that if the 50/60 end was used to break size 80 chain, and if the size 80 chain pin was bigger than the hole in the tool, the chain pin would have no place to go. Plaintiff never saw anything which said to tighten the cylinder to prevent injury if the punch broke.

Dennis Lockhart, an ophthalmologist, treated plaintiff after the injury to his left eye. The piece of metal could not be removed from the eye without causing greater injury. The metal had passed completely through plaintiff's eye, which was now nonfunctional. The eye is deteriorating, and eventually, plaintiff may elect to have the eye removed, with a prosthesis implanted.

Lloyd Smith, retired president of Smith Tool, testified that he had a financial interest in tools sold by Center Industries. In buying Smith Tool, Center Industries was paying him a percentage of the gross sales price of the tools. The trial court sustained defendants' objection to questions asking how much per month Smith was receiving from Center Industries.

Smith stated the punch size on a newer tool handles sizes 50 to 80 chain. It is the same size punch as that on the tool plaintiff used. In 1970, Smith was the chief executive of S/V Tool. Plaintiff's exhibit 19 was printed in 1970 and used as a package insert through 1984. Smith never ordered it redrafted or changed. The package insert stated the tool was designed for size 50, 60, and 80 chains. S/V Tool always knew the tool would be used on old chain. They sold the tool to dealers and to those who repaired machinery. The sleeve, cylinder, holds the chain still while pressure is applied to the top of the chain pin. The punch pushes the chain pin through the link in the chain. There will be no movement between the chain pin and the top plate until all slack is taken out of the chain. Smith agreed the promotional material stated the punch would not break.

Smith believed that before any pressure is put on the punch, the clamping sleeve, cylinder, should be turned down to the chain. If done with new chain, the cylinder would remain in contact with the top plate of the chain even as the pin is driven through the chain. If done with old chain, as soon as the punch starts moving the chain pin through the bottom plate, it would move the top plate away from the cylinder until all slack is out of the link. Smith stated that S/V Tool tested old and new chain.

Smith did not draft the material provided in the package but believed the sales manager did so. The "won't break" language was inserted out of enthusiasm. In comparison with other tools, breakage did not happen. However, he believed the drafters of the promotional literature were "carried away" with enthusiasm. However, when the tool was properly used in his tests, the punch did not break. When punches broke, the company assumed the tool was used improperly. Punches broke occasionally. The instructions and promotional literature were not changed as a result. The manufacturer knew that some people were not placing the cylinder all the way down to the chain, because when they received returned tools, the punches looked as if this had occurred.

Smith stated the manufacturer did not warn of the possible consequences of improper use. It should have been obvious to an experienced person that the sleeve (cylinder) served as a clamping device and a protective device. When the manufacturer first sold the tool, it knew a broken fragment could go anywhere if the cylinder were not down. However, the punch would bend before it broke. Smith knew of another case where a person alleged the Chain-A-Part punch had fractured and a piece had entered his eye. The instructions with the package say to bring the sleeve all the way down to the chain.

On cross-examination, Smith stated he designed the rivet tool and the Chain-A-Part tool. The punch on the instant tool bent before it broke. This was consistent with the way it was supposed to perform. Each package contained a promotional-instruction page. The back part of the page contained instructions for the use of the tool. ...


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