*1
grant
after default. To
interven
to the real estate
ship
respect
with
awarded to
growing crops
an interest in that
ing
portion
bank
the land
would
the effect of
defendants
farm
plaintiff
permitting
have
Therefore, we de
of another rent free. This result
decline to permit.
we
Code does not alter
termine that article 9 of the Uniform Commercial
Procedure,
of section 9—105 of the Code of Civil
provisions
lien in case of default
Fullers in
grants plaintiff
statutory
contract.
real estate sales
Co.
(Cf. Dwyer
Cooksville Grain
Brothers,
HARRISON and concur. HOLMES, COMPANY, Plaintiff-Appellee, v. SAHARA COAL GARY Third-Party Counterdefendant-Appel- Plaintiff and Defendant-Appellant and Third-Party Counterplain- (Caterpillar Company, lee Tractor Defendant and tiff-Appellant).
Fifth District No. 5 — 83—0809 11, 1985. 13, 1985. Rehearing April denied Opinion filed March *3 KASSERMAN, J., dissenting. Brandon, Carbondale, Mitchell, Schmidt,
William Kent Brandon & appellant for Caterpillar Company. Tractor
Harris, Wilson, Marion, Gary & for appellee Lambert Holmes. Lord, Brook, Jelliffe, Chicago, Morris, Bissell & and Ferrell & Ferrell, Harrisburg (Hugh counsel), C. Griffin and V. Donald for Sahara Company. Coal
JUSTICE opinion HARRISON delivered the of the court: Sahara Coal Company (Sahara) Caterpillar Tractor Company a (Caterpillar) appeal judgment entered circuit court of William- son The action County. brought by Gary was Holmes to re- (plaintiff) cover for personal injuries. against Plaintiff’s action Sahara was pred- icated theory negligence. on a Plaintiff’s action against Caterpillar was predicated theory a of strict Sahara filed a liability. counter- claim indemnity against for Caterpillar, and filed an Caterpillar action trial, contribution Sahara. a Following jury judgment was entered in favor of plaintiff against $183,000. Sahara in the amount of Judgment was entered in favor of plaintiff against $200,000. amount of returned a verdict in favor of Caterpil- lar on Sahara’s action for Sahara was indemnity. found liable in con- to Caterpillar, tribution was judgment entered in the amount of $120,000.
Plaintiff was as a employed by field mechanic Fabick Machinery On Company. November plaintiff was sent to a repair Cater- pillar model 637D owned tractor-scraper, by Sahara. After arriving at site, Sahara’s mining plaintiff to the proceeded working area. Plaintiff accompanied by Sahara Denzel Butler. employee The tractor- scraper need of repair operated by Deon Upon being Wallace. approached by plaintiff Butler, and Mr. Mr. turned off Wallace the ma- chine and left the Plaintiff operator’s proceeded to compartment. work on the After 15 to 20 tractor-scraper. approximately minutes, that Mr. requested engine. Wallace start As Mr. Wallace started the engine, piece (the bail) of metal located at the front of rose pinched plaintiff’s leg against the bail cylinder. at trial testimony established that the bail is controlled
lever operates three positions. engine When is started with the lever in two of (the these “cushion ride-bail positions up” *4 and “lock up” positions), down-bail the bail rises automatically. When the is started with the engine remaining (the lever the position “lock down-bail down” position), the bail remains down. A decal above the lever bail warned that the lever should in the placed be “lock down-bail down” the position when machine was or be- parked the serviced, working cylin- under bail injury persons and that ing if started with the lever the “bail engine could result the were der were warnings printed Additional and instructions up” position. A decal in the directed operator’s compartment manual. operator’s the manual to lower all raised be- operator equipment read the fore the starting engine.
Deon he not recall the reading Wallace testified that could warn- accident, decal near the lever to the and that he had ing prior bail knew, however, never read the manual. Mr. that operator’s Wallace the if the were started with the engine bail would rise automatically bail the “lock down-bail down” Mr. Wallace any position. lever but “if all starting engine, testified that he asked before clear,” that he thought plaintiff affirmatively. answered the model 637D trac-
Plaintiff testified that he was familiar with that the rise if the were tor-scraper engine knew bail lever would started with the lever in the “bail or “cushion ride” up” posi- bail nothing starting tions. He stated that Deon Wallace said before at and that it had not engine plaintiff’s request, necessary po- been sition his the bail and in order to (plaintiff’s) leg cylinder between bail repair machine. testi- Hrodey, design engineer employed by Caterpillar,
Thomas fied that an of the have design pre- alternative would vented The installation of a heavier in the bail plaintiff’s injury. spring operating mechanism, according Hrodey, prevented to Mr. would have from Mr. estimated the cost of the rising. Hrodey bail mechanism spring at $25. that the trial court erred in Cat
Caterpillar alleges denying for erpillar’s judgment notwithstanding motion verdict. the model 637D tractor-
argues evidence established was, law, unreasonably as a matter of neither defective nor scraper warnings operator to the ma dangerous light Caterpillar’s however, does warning, The fact that a manufacturer supplies chine. in is to shift or reduce risk warning adequate not mean that Distributing dangerous (Palmer Corp. herent in a v. Aveo product. 211, 221-22, 412 This determination is A221.) for the Ill. 2d warn jury. (82 of fact generally question if it does not ing found may inadequate, example, be specify too small or inap if its size or presented product, print risk if to reach foreseeable users placed, unlikely or it is propriately case, the In the reasona product. (82 221-22.) Ill. 2d instant compartment in the operating inferred that the decals bly could have with the starting engine danger did not accurately specify
671 the decals were that up” position, in the ride-bail bail level “cushion inappropriately decals were size, of or even that the insufficient warnings that the op also have inferred placed. could users such as manual to warn foreseeable inadequate erator’s were be en notwithstanding the verdict should Judgment Deon Wallace. the in most favorable aspect tered where all the evidence viewed only the that no favors movant con opponent to the so overwhelmingly (Pedrick could ever verdict based on the evidence stand. trary 494, 510, 229 Peoria & Eastern R.R. Co. movant in the not so favor the overwhelmingly evidence did instant case. refusing in
Caterpillar alleges that the trial court erred Cater pillar’s (as originally tendered) allowing No. 5 jury instruction 5 original Sahara’s instruction No. 10. instruction No. Caterpillar’s concerned the use of verdict forms reference to Caterpil with both against claim for Sahara and to Sahara’s claim for lar’s contribution gave The court that instruc indemnity Caterpillar. portion Caterpillar’s place tion No. 5 to claim for pertaining contribution. of that portion instruction No. 5 to Sahara’s claim for pertaining the court 10. indemnity, substituted Sahara’s instruction No. Sahara’s Instructions, Civil, No. No. (Illinois Jury instruction 10 Pattern 500.24 1977))contained the same as (Supp. language portion Caterpil lar’s instruction No. 5 which the refused. Caterpillar court neverthe less that the argues separation regarding the instructions contribu support tion and served to We no indemnity jury. confuse find the record for assertion. this that the alleges admitting testimony court erred in 1974 as contact with occurring person’s
an accident a result of a a cross-examina- tractor-scraper. Following Caterpillar’s similar model Bill Ollis, during tion of Fabick mechanic which Ollis stated he involving plaintiff, was unaware of accidents similar to the one any plaintiff’s portion counsel read into a permitted evidence The following questions discovery Hrodey. Thomas deposition answers were read:
“Q: warnings Do know reasons for contained you machine identified as placed decals to be Exhibit for those testified, have what reason warn- you about which ings was? — a size vehicle it A: was another incident on There — of mechanic getting to this a happened accident prior bail pinched cylinder. under the
Q: in down po- What circumstances occurred? Was bail and the started? A similar set of engine sition facts? Yes.
A: Or Do Q: you long what? know how that event you to which — place alluded took to the just prior say prior let’s this when machine manufactured?
IA: believe somewhere in 1974. that,
Q: How did learn of I am call you going what 1974 incident?
A: We an of man report getting pinched. heard of incident Now we possibly up realized mechanics could be there they around bail started and he engine got pinched in there.”
Evidence of
similar
prior
occurrences
admissible for the
*6
purpose
demonstrating
of
that a
possessed
manufacturer
knowledge
of a
in a particular product
defect
to the
prior
litigated
accident in the
(Moore
case.
v. Remington
(1981),
Arms
100 Ill.
1102,
Co.
3d
App.
1110-11,
608.)
427 N.E.2d
knowledge
issue
Caterpillar’s
the
product’s dangerous
court,
propensity
properly
before the
since
Caterpillar’s
liability
strict
in
its
upon
alleged
tort rested
failure to
provide adequate warning
danger.
A manufacturer’s knowledge
of a product’s dangerous condition must be
in order to im
established
pose strict
for failure to warn.
liability
Woodill v. Parke Davis & Co.
(1980),
26, 33,
2d
79 Ill.
Caterpillar argues that the 1974 is “totally accident dissim ilar” in to that instant case because the accident prior involved a model not, 657 as in tractor-scraper accident, a plaintiff’s model 637D. The of whether a is question prior occurrence simi sufficiently lar to the subsequent occurrence is a generally determination within Amereo, sound discretion court. (Johnson trial v. Inc. (1980), App. 299.) 87 Ill. 3d It is not necessary that the facts and surrounding circumstances the accidents be identi cal; (Rucker substantial is all is similarity required. that & Norfolk 434, 440-41, 534.) Western Co. 77 Ill. Ry. (1979), 2d 396 N.E.2d Plain tiff’s similarity accident instant case substantial to the bore which of Mr. subject Hrodey’s accident was the deposition. alleged dissimilarity is undermined Mr. equipment Hrodey’s that involving admission the accident a model 657 tractor-scraper prompted Caterpillar place warnings operator’s in the cab and manual of the model 637D.
Both allege Sahara and trial court erred Caterpillar rulings certain evidence regarding admissibility of demonstrat ing Caterpillar’s post-occurrence adoption design of a modification. of an alternate de- trial, feasibility
Before Caterpillar stipulated in- prevented plaintiff’s which would have tractor-scraper sign the intro- motion in limine Caterpillar precluding then offered a jury. modification of the regarding duction of evidence erred injury. Sahara contends that the court subsequent plaintiff’s Caterpillar’s motion in limine. contends granting admitting plaintiff’s (a Caterpillar court erred exhibit No. selector regarding proposed service letter modifications of bail testi- valve) together valve control with certain cross-examination modifications, thus mony regarding violating Thomas such Hrodey the court’s own in limine order. an
Although post-occurrence allegedly evidence of modification of negli defective in an action product predicated not admissible where, case, gence, such evidence is admissible as the instant (Burke action is on a of strict v. Illinois predicated theory liability. Power 57 Ill. Plain Co. Hrodey’s tiff’s exhibit No. 32 and Thomas cross-examination testi were, then, admitted for the mony properly purpose demonstrating that Caterpillar’s original design defective, notwithstanding Cat erpillar’s stipulation regarding the of an alternate feasibility design. it Caterpillar’s stipulation that was feasible to design tractor-scraper upon would not have been injured cannot reasonably be characterized as a that Caterpillar’s design concession actual re rather, sulted in a product; defective conceded Caterpillar’s stipulation but one element of Nevertheless, determination. necessarily complex we error, cannot view the court’s order in limine as since reversible evidence only product’s post-occurrence modification which was offered at trial was admitted the erroneous in limine or despite *7 der. alleges
Sahara that the trial court erred in directing the to find that Deon not the Wallace was “loaned servant” of Fa bick. The loaned-servant doctrine a maxim of rec agency is law which or ognizes agent principal that the of one in fact be employee may of a employee principal come second when is loaned employee (Heinrich Peabody to the second for some v. principal special purpose. 344, 351, 935.) 2d The Corp. (1984), International 99 Ill. 459 N.E.2d essential criterion for the existence a loaned-servant determining (Kristensen is that of control over the v. relationship employee. 1075, 1079, F. Meyne (1982), App. Gerhardt Co. 104 3d 433 1050.) The control depend upon N.E.2d determination of will such fac hired, tors as context which the the manner in employee which the employee according to which the em- paid, procedure ployee discharged, be in which the may way employee’s work . is directed or Bituminous supervised. Casualty Corp. v Wilson 454, (1983), 460, 119 Ill. 3d App. N.E.2d 696.
The of a allegation loaned-servant relationship usually will for present question jury. (119 454, fact Ill. App. 460.) 3d case, however, the instant there was no evidence that Mr. Wallace was hired in a context control suggesting by Fabick. Neither was suggesting there evidence was responsible Fabick Mr. paying Wallace, nor that Fabick possessed authority discharge him. These control, then, essential elements of were not by established the testi at trial. Mr. mony starting Wallace’s act the machine at plaintiff’s not, itself, behest was sufficient to establish Fabick’s control over Mr. Wallace. mere fact that an employee course of a special responds service to directions or signals given by a purported second does not make the principal a loaned employee (Richard servant. Illinois Bell Telephone (1978), 825, 832, Co. 66 Ill. 3d App. case, In the 1242.) N.E.2d instant the evidence did not demonstrate of a requisites loaned-servant relationship, and facts were not subject to inferences which would allow a finding reasoned of such a relationship. The trial court did not abuse its discretion by directing a plaintiff verdict for on this issue.
Sahara that the alleges finding that jury’s only negli 8.5% gence be against should allocated the manifest weight A presented evidence at trial. verdict is “the manifest weight of the evidence” an only opposite when conclusion is clearly or when the apparent finding jury appears arbitrary and unsub (Goodrick stantiated evidence. v. Bassick Co. (1978), 58 Ill. 447, 454, App. 1262.) reviewing 3d A court will not over unless, turn a all jury’s considering verdict evidence in the light most trial, favorable to the at party prevailed who the jury’s conclusion is palpably erroneous and wholly (Lynch unwarranted. v. Board Edu (1979), cation 72 Ill. 390 J.E.2d affd case, In the instant substantial evi presented dence was in support of plaintiff’s allegations Deon negligent Wallace was in his operation tractor-scraper, and that itself was an unreasonably dangerous product. allocation of the fault in of all the precise parties’ light evidence was a matter upon disagree. which reasonable could persons Upon reviewing record, we cannot characterize the as jury’s finding arbitrary or erroneous. palpably alleges
Sahara that the jury’s special answer No. interrogatory 2 entitled Sahara to both judgment against Caterpillar on Sahara’s
675 The for contribution. claim Caterpillar’s claim for and on indemnity jury following: question asked machine de- tractor-scraper No. 2: the 637D “Question Was the con- at the time it left unreasonably dangerous fective and unreasonably dangerous trol which defective Caterpillar, damages injuries cause of proximate condition was Holmes?” by Gary sustained The had jury the affirmative.
The answered the question instructed that if it should find that been time it left condition at the unreasonably dangerous an or defective control, a then be entered favor verdict should Caterpillar’s Caterpillar argues Sahara’s action for indemnity. Sahara on action, concept implied to state a cause of since the Sahara failed adoption superseded by Assembly’s has been General indemnity 1981, (Ill. Tortfeasors Act Rev. Stat. Among Joint Contribution event, 70, and, ch. 301 et is entitled seq.) any par. alleged proved matter neither nor judgment as a of law since Sahara Caterpillar. necessary pre-tort between Sahara relationship The intended question Assembly of whether the General sup Act to rather than Among replace Contribution Joint Tortfeasors generated the common has plement concept implied indemnity law Anich, Skin Indemnity considerable discussion. [E.g., Implied After Stand ner & the Illinois Contribution Act: The Case for Uniform ard, Michael, (1983); 14 U. Chi. L. & Contribution Loy. Appel J. 531 Among Opportunity Legislative Joint in Illinois: An Tortfeasors for 169, (1979); & Judicial L. 192-93 Fer Cooperation, Loy. 10 U. Chi. J. — rini, Question The Evolution A Indemnity Contribution from Future, (1978).) 59 Chi. Bar. Rec. 254 While Any, Indemnity, If de debate, thus far has acknowledging Supreme the Illinois Court (Heinrich Peabody Corp. clined to resolve the issue. International 935; v. Union 344, 350-51, 2d 459 N.E.2d Simmons (1984), Ill. court, in a 444, 453-54.) Electric Co. (1984), appellate that the Contri held thorough disposition, recently and well-reasoned indem implied bution Act has in fact actions based extinguished v. Laverdure nity, “possible]” (Morizzo with two exceptions. 653.) exceptions Ill. 3d App. possible some relation involving pre-tort noted the court were cases either (e.g, for another vicariously one liable ship whereby party becomes owner-lessee, or, an master-servant), “upstream” employer-employee, dangerous claim or defective liability unreasonably of strict an court of the Morizzo product. (127 justice 3d One Ill. App. (127 reasoned that these are unfounded. proposed exceptions J., concurring).) passage (Downing, specially “[W]ith stated, Act,” “it is reasonable to Downing Justice Contribution that, im intended legislature qualification, conclude that the without to distinguish should no exist. I see no reason plied indemnity longer *9 cases, alleging in tort or cases liability, indemnity between vicarious 767, 775.) (127 agree. strict We ‘upstream’ liability.” each whereby The of a mechanism right provides contribution according responsi the to his may defendant in a tort action bear loss the comple for the tortious act. This of burden bility apportionment fault negligence comparative the of principles comparative ments measure of recov indemnity, our court. by supreme enunciated Peabody Corp. International nothing. (Heinrich all ery or (the one tortfeasor indem 935.) Allowing nitee) (the indemnitor) imposes upon to shift the entire to another loss to the indemni necessarily disproportionate the indemnitor a burden in the so-called imposition tor’s for the Such an responsibility injury. which a tortfeasor’s according creates a scheme to exceptional cases in cases in no direct relation his burden of loss culpability bears to or strict while necessar volving liability “upstream” liability, vicarious The effect in all other cases. ily determining tortfeasor’s burden re degree of equitable equation of this scheme is to nullify of for the harm act and the burden loss sponsibility for tortious of inflicted, right which undermining upon thus basis thereby contribution, comparative negligence of principles as well as the cannot, fault, legislative history of such comparative light rest. We in en an intention Assembly as to the General possess, we attribute to appear with what would acting the Act inconsistent Contribution It the Act. is our principles by judgment be the furthered implied indemnity, Act has all actions for extinguished Contribution to state a cause of action. and that thus failed complaint Sahara’s in fa that the contribution alleges judgment Sahara Finally, plaintiff’s 8.5% to account for by vor of should be reduced Caterpillar that plaintiff’s fails to realize comparative negligence. allegation This negligence, against theory was predicated action Sahara theory on a against Caterpillar predicated action plaintiff’s to negligence and that attribution 8.5% liability, jury’s strict Sahara’s to nor liability plaintiff neither plaintiff Caterpillar’s affects found that specifically The liability Caterpillar. to I plaintiff’s complaint, to count negligence regard guilty with i.e., found that jury specifically The against Sahara. plaintiff’s action unreasonably the risk of defective plaintiff did not assume plain- II of alleged count dangerous condition of the i.e., jury- plaintiffs against Caterpillar. tiffs action complaint, Caterpillar’s contribution following finding regard made the with action Sahara. against
“We, is entitled to contribu- Caterpillar found that jury, the following: tion from Sahara and further find fault of Assuming that 100% the total combined represents contribution, we find Sahara and on the claim for Caterpillar to Sahara is percentage percent, of fault attributable 60% Caterpillar which should receive contribution.” The trial court entered Sahara correctly judgment $120,000, amount reflecting Caterpillar’s obligation 60% plaintiff. Caterpillar’s liability plain- It was judgment regarding tiff, upon unaffected plaintiff’s negligence, from sought contribution Sahara. of the trial court is affirmed. judgment
Affirmed. *10 J.,
WELCH, concurs.
KASSERMAN, J., dissenting:
I conclude, am to majority, unable as does the the Illinois 1981, Contribution Joint Among (Ill. Tortfeasors Act Rev. Stat. ch. 70, par. seq.) 301 et all extinguishes implied indemnity; actions therefore, I respectfully dissent. adopting in special concurring opinion Downing Justice 767, 653,
Morizzo v. Laverdure 127 Ill. 3d (1984), App. in the majority case at bar overrules the of the court in majority Morizzo in its decision certain causes of for implied action indem nity extinguished are not the Contribution Act. The court in Mor did, fact, in Illi ijdemnity izzo determine that is still viable implied nois with respect involving pre-tort relationship cases some parties between which rise to a such as those gives duty indemnify, involving (lessor-lessee; vicarious owner liability employer-employee; lessee; master and claims in a strict lia servant) “upstream” action. bility bar,
In the case at is an against Caterpillar Sahara’s counterclaim em- and, claim in a strict action “upstream” liability consequently, one the Morizzo braced within instances specified court found that still exists. Such a claim falls implied indemnity within the announced in Lowe v. & squarely ambit rule Norfolk 80, 97, 792, 805, Ry. (1984), App. Western Co. Ill. 3d 463 N.E.2d which this court stated that the Act Illinois Contribution does not pro hibit an action for “upstream” cases. indemnity products liability
Applying above rationale to the instant it is conclu appeal, my sion that Sahara’s counterclaim stated a cause of action Caterpil Furthermore, lar for implied indemnity. in its special answer 2No. found that interrogatory Caterpillar placed defective and unrea sonably dangerous product stream of commerce and that such de fective dangerous proximate condition was the the injuries cause of Therefore, by plaintiff. sustained Sahara would have been entitled to a on its counterclaim and al judgment against Caterpillar indemnity; “downstream” has though indemnity generally prohibited, Caterpil been lar should be to seek contribution from Sahara to establish permitted that it is entitled to contribution on the that Sahara misused or as basis of the defective product. sumed risk Lowe v. & Western Cf. Norfolk Ry. Co. 805. reasons, For the I would the decision of the trial foregoing reverse court and remand this cause for a new trial consistent with this dissent. ILLINOIS, Plaintiff-Appellee,
THE THE STATE OF PEOPLE OF WREN, SR., Defendant-Appellant. RONALD Fifth District No. 5 — 83—0680 20, 1985. Rehearing denied March Opinion February filed 1985.