This is аn indemnity action which seeks recovery of sums paid in settlement to the estates of four individuals killed in a 1962 collision between the car in which they were riding and a truck operated by plaintiff’s insured. The case was tried upon a theory of strict liability in tort for the manufacture and sale of a defective product. After a bench trial judgment for plaintiff was entered in the stipulated amount of $39,000. Two contentions are raised on appeal: (1) that plaintiff’s failure to give notice to defendants prior to settling the initial litigation imposedupon
On August 29, 1962 a truck operated by an employee of the Pillsbury Company (hereinafter referred to as Pillsbury) collided head-on with an automobile occupied by four individuals, all of whom were
OPINION
Defendant’s first contention is that the settlement of the initial lawsuit, without notice to the prospective indemnitors, imposed upon plaintiff tire burden of proving that plaintiff’s insured was in fact liable to the four estates and that the settlement amounts were reasonable. It is asserted that this burden, in addition to the burden of proving the primary liability of the indemnitor, is assumed by any party who voluntarily pays a settlement without such notiсe. No direct authority is cited for this proposition, and our research has uncovered no case concerning the precise issue. It is a matter of first impression in Illinois.
We hold that, in addition to proving the primary liability of the indemnitor for the injury occasioning a settlement, an indemnitee who settles without notice to the prospective indemnitor need prove only that, by settling, he was responding to a reasonable anticipation of personal liability rather than acting as a mere volunteer. The reasonableness of the amounts paid in settlement is a matter bearing solely upon the issue of damages.
That a party in plaintiff’s posture need not prove his or his insured’s negligence, but need only establish potential liability, is supported by case law and by policy considerations. In Sleck v. Butler Brothers,
“[T]he third-party plaintiffs are not volunteers; a party may seek contribution even though it has not beеn judicially determined that it is liable to the injured party. The Sack and Gulf cases heretofore cited are in point. It is necessary only that the person seeking contribution has been subjected to liability because of the wrongful conduct of another. In Boston v. Old Orchard Business Dist., Inc.,26 Ill.App.2d 324 , 329,168 N.E.2d 52 (1960), the court stated:
‘Whether the legal principle upon which the third party complaint is based is contribution or indemnity, in either case the fact that a party against whom a legal liability is asserted made a fair settlement in good faith without a judgment having been entered against him does not prevent his seeking to enforce a claim for reimbursement against another person primarily respоnsible for the injury suffered by the plaintiff. * * *’
In the instant case the third-party plaintiffs were subjected to tort liability by the wrongful acts of the third-party defendant. Third-party plaintiffs Butler and Canal owned the building and had inspected the elevator before the third-party defendant began its work at the building. Third-party plaintiff Gallaher had contracted with the owners of the building to do the work in question and then subcontracted that work to the third-party defendant. These circumstances could reasonably be considered to create a question of fact as to whether the third-party plaintiffs were technically responsible for the work being done and technically liable to Sleek for failing to discharge a supervisory responsibility even though they were not guilty of any active common law negligence or any active violations of the Structural Work Act.”53 Ill.App.2d 7 , 17 — 18.
Defendants have offered no cogent reason why an indemnitee’s failure to give pre-settlement notice to a prospective indemnitor would warrant a different approach. See also, Allied Mutual Casualty Corp. v. General Motors Corp. (10th Cir.),
We see no way in which plaintiff’s settlement either did or could prejudice defendants by depriving them of any defenses, whether negative or affirmative, which would otherwise have been available to them; that situatiоn, of course, would be a very different matter. Our position is further supported by the established tenet that the law favors the amicable compromise and settlement of litigation. (I.L.P. Compromise
In the case at bar it is manifest that plaintiff’s insured was confronted with a reasonablе anticipation of liability. The pleadings filed on behalf of the decedents’ estates alleged facts and a variety of negligent acts and omissions by Pillsbury which could have supported a substantial judgment.
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Although we do not believe that it would be fatal to plaintiff’s action if those complaints had alleged only “active” negligence (Miller v. DeWitt,
Apart from the contentions discussed above, defendants have not disputed that plaintiff would be entitled to indemnification if it were established that the 1962 collision was occasioned by a blowout caused by a tire defect attributable to Michelin. This concession is well warranted. (Suvada v. White Motor Co.,
Defendants contend that the evidence required a finding in their favor, or, in the alternative, that the finding in favor of plaintiff was
. Plaintiff’s case consisted primarily of the testimony of John Reffnеr, an expert in the field of chemical analysis. He testified as follows: He was the assistant director of the Institute of Material Science at the University of Connecticut, with responsibilities divided between research in microscopical analysis and administration. In 1956 he received a degree in chemistry from the University of Akron, where he had taken some courses in rubber chemistry and technology. He was employed for two and one-half years by B. F. Goodrich Company, working in. their physical testing laboratory with products other than tires, and in the microscopic laboratory with the entire line of products, including tires. In the course of his employment with B. F. Goodrich he had occasion to cut up slightly less than twenty Michelin tires for the purpose of microscopic analysis. Between his years at B. F. Goodrich and his arrival at the University of Connecticut he studied chemical microscopy at the University of Colorado, was employed by a research consulting laboratory and received a masters degree from the Illinois Institute of Technology. At the request of plaintiff’s attorney, Mr. Reffner had conducted a visual and microscopic examination of the left front tire of the Pillsbury truck to determine the cause of its failure. His examination revealed an 18" rupture in the tread and underlying plies of the tire, in addition to other smaller cuts and abrasions. The rupture bore no signs of scuffing, whereas the other cuts showed external damage. He found signs of smoothing and polishing on the internal surfaces of the rupture; the rubber components were separated from the radial ply wires; and the
On cross-examination Mr. Refiner admitted that radial ply wires might reflect tension breaks even after a blowout caused by external penetration. He also acknowledged that there were cuts and other signs of external force at the base of the 18” rupture on the tread of the tire, and that the exterior appearance of the tire was compatible with the possibility of external penetration. However, he discounted that possibility because of the exclusive “necking down” configuration of the severed wires, which indicated a tension break rather than a traumatic break. He reiterated his opinion that the blowout resulted from an internal defect.
Plaintiff introduced a number of exhibits intо evidence. The Michelin tire was introduced in several pieces, one consisting of approximately 75% of the tire and the others consisting of cut-outs and cross-sections from the area of rupture. A series of photographs and photomicrographs of various portions of the tire were also introduced, but the record does not reflect the introduction by plaintiff of any photomicrographs of the severed radial ply wires.
Defendants relied primarily on the testimony of two expert witnesses. Mr. Robert G. Dunlop testified as follows: Since 1955 he had been president of Smithers Laboratories, an independent laboratory specializing in the testing of materials used in rubber compounds and in the testing of rubber products, including tires. Prior to assuming that position, he had spent 11 years with B. F. Goodrich Company engaged in all phases of tire manufacturing and testing. He had examined thousands of tires, some prior to distribution and some upon their return after field failures. Much of his testing experience involved intentionally induced tire failures with follow-up analyses and recommendations for improvements. He
On cross-examination Mr. Dunlop admitted that portions of his written rеport identified the presence of only tension breaks in the radial
Mr. Sidney Bloor testified on behalf of the defendants as follows: He had been employed by Michelin Tire Company for 18 years and presently served as general manager for tire North American market. In his career with Michelin he had examined and analyzed between 30,000 and 45,000 Michelin tires. He stated that there exist three categories of “ply separations.” The first is an internal sеparation of rubber components over a considerable length of time. It is manifested by a phenomenon known as “crumbling of the rubber,” in which the rubbing together of the detached surfaces produces a fine rubber powder and a void in the area of separation. The second type of “ply separation” is similar to the first, but occurs over a shorter period of time, and is identified by a tackiness in the rubber and a strong lingering odor. The third type is a splitting or detachment and is caused by an external shearing force. Mr. Bloor was asked to examine cross sections of the 18" rupture from the Michelin tire and to express an opinion as to thе category of separation present. He concluded that it was of the third type, a splitting by a shear force. There existed no voids, rubber powder or tackiness. The lines of shear were clearly visible and, when they were aligned, it created a “beautiful fit.” There also existed surface gouges and scratches leading to the point of rupture. In his opinion, the cause of the rupture was penetration by a blunt foreign object.
On cross-examination and in response to the trial judge’s inquiries Mr. Bloor stated that he had examined thousands of Michelin tires which had been returned as defective. He asserted that he did not discover a single manufаcturing defect in any of those tires. This assertion was supported by the subsequent testimony of Michelin’s vice-president.
Defendants also introduced into evidence photographs and photomicrographs. Included among these were photomicrographs of the ends of the severed radial ply wires, with the contrasting configurations highlighted.
Defendants contend that the trial court should have found in their favor at the close of all the evidence. They contend that neither the proof of a blowout nor the testimony of plaintiff’s expert witness established prima facie the presence of a manufacturing defect in the Michelin tire. Alternаtively, it is contended that, assuming arguendo that plaintiff’s evidence established a prima facie case, defendants’ contrary evidence so preponderated that all the evidence, even when viewed in its aspects most favorable to plaintiff, so overwhelmingly favored defendants
We have accepted as undisputed that the immediate cause of the 1962 collision was a blowout in the Michelin tire on the Pillsbury track. However, proof of the occurrence of a tire blowout carries no implication of product defectiveness. The term “blowout” is merely descriptive of a sudden, forceful expulsion of air, usually from a pneumatic tire. It in no way suggests the cause for the expulsion, nor whether that cause is of internal rather than external origin. See Shramek v. General Motors Corp.,
In order to establish a prima facie case, plaintiff was obligated to prove by additional evidence that the blowout was caused by a defect in the Michelin tire which existed at the time the tire left the manufacturers control. (Suvada v. White Motor Co., supra.) To this end, plaintiff presented an expert witness, Mr. John Reffner, who expressed the opinion that the Michelin tire rupturеd as a direct consequence of an internal “ply separation,” resulting from a defect in the manufacturing process. This opinion was based on the following facts: (1) the area of rupture bore no evidence of scuffing or other external damage; (2) the radial ply wires had been split in a “necking down” fashion, characteristic of a break due to tension rather than to shearing; (3) the internal surfaces of the rupture showed signs of smoothing and polishing; (4) other “ply separations” and blisters were found inside the tire. On cross-examination, however, Mr. Reffner abandoned his first supportive finding and qualified his second. He acknowledged the presenсe of cuts and gouges at the base of the 18" rupture, and admitted that an externally induced blowout might also result in-a tension breakage of radial ply wires. He also agreed that the exterior appearance of the tire was compatible with the possibility of external penetration. Nonetheless, he held to the opinion that this blowout was of internal origin and, in support, cited the total absence of externally sheared wires in the area of rupture.
On the basis of Mr. Reffner’s testimony and his apparent expertise in the field of microscopic analysis; we conclude that plaintiff established a prima facie case in strict products liability. We recognize that the term “ply separation” was never precisely defined; it is unclear whether it constitutes a disengagement of layers of bonded rubber plies, a decomposition of rubber components, or something else.
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However,
“[DJirect оr circumstantial evidence which tends to prove that the product failed to perform in the manner reasonably to be expected in the light of its nature and intended function, such as proof of a malfunction which tends to exclude other extrinsic causes, is sufficient to make a prima facie case on this issue.”130 Ill.App.2d 844 , 851.
In Bollmeier the plaintiff had been involved in a one-car accident, allegedly as a result of a failure in the steering system. He introduced testimony that there existed in his car a malfunction which was manifested by a vibration in the steering; that such vibration could cause a metal failure or loosening of bolts in the steering mechanism; and that the car failed to respond when plaintiff attempted to turn a corner. The court held that this evidence was sufficient to present a jury question on the issue of the defectiveness of the automobile.
In the case at bar plaintiff has relied on expert testimony and physical exhibits. Although Mr. Refiner’s experience in the field of tire analysis was limited, and his presentation was admittedly conflicting in some parts and weak in others, when that testimony is viewed in its aspects most favorably to plaintiff, we believe that it suffices to establish a prima facie case.
Our conclusion that plaintiffs evidence established a prima facie casе does not dispose of defendants’ contention that the trial court should have found in their favor at the close of all the evidence. This contention requires an analysis of all the evidence in the context of the standard enunciated by Pedrick v. Peoria & Eastern R.R., supra.
We have already alluded to certain weaknesses and contradictions in the testimony of plaintiff’s expert witness. These assume greater proportion when contrasted with the expert testimony and physical exhibits introduced by defendants. Defendants’ first expert witness, Mr. Dunlop, was president of an independent laboratory specializing in the testing . and analysis of rubber products. His exрertise in the diagnosis and analysis of tire failures was unimpeachable. His testimony totally undermined the factual basis upon which plaintiff’s expert had concluded that the tire rupture was of internal origin. He located cuts and gouges on the tread of the Michelin tire and traced them to the base of the 18” rupture. Photomicrographs of the ends of the severed radial ply wires were introduced into evidence to illustrate the presence of sheared wires in addition to wires broken by tension. He referred to cross sections of the rupture to show the absence of voids, polishing or smoothing.
Plaintiff presented the testimony of one expert witness; defendant presented the testimony of two. Although the number of witnesses for each side is a factor to be considered, it is not determinative. (Miller v. Green,
Defendants, too, may develop their theories through circumstantial evidence; it would impose an equally unwarranted burden on defendants in this case to require production of the instrument which punctured the exterior of the Michelin tire. It is sufficient for defendants if, by expert opinion and/or circumstantial evidence, it appears more probable than not that the product in question did not сontain a defect when it left the manufacturer’s control, or that the injury was caused
Judgment reversed.
LEIGHTON and HAYES, JJ„ concur.
Notes
Davis v. Lebschier, 63 S 8799, Allen v. Pillsbury Company, 64 L 1005 and Gore v. Lebschier, 63 S 22352.
Plaintiff failed to introduce the complaints into evidence, but we have chosen to take judicial notice of their contents. See State Farm Mutual Automobile Ins. Co. v. Grebner,
This confusion was compounded by defendants’ expert testimony that the tire in question was a single ply tire.