Creeco Co. v. Northern Illinois Gas Co.

• Citation: 73 Ill.App.2d 218,219 N.E.2d 257
• Decision Date: 21 July 1966
• Docket Number: Gen. No. 65--99
• Parties: , 24 A.L.R.3d 310 REECO COMPANY, a corporation, and Lillibridge Manufacturing Company, a corporation, Appellants, v. NORTHERN ILLINOIS GAS COMPANY, a corporation, and Porter Contracting Company, a corporation, Appellees.
• Court: United States Appellate Court of Illinois

Page 257

219 N.E.2d 257

73 Ill.App.2d 218, 24 A.L.R.3d 310

REECO COMPANY, a corporation, and Lillibridge Manufacturing

Company, a corporation, Appellants, v. NORTHERN ILLINOIS GAS COMPANY, a corporation, and Porter

Contracting Company, a corporation, Appellees.

Gen. No. 65--99.

Appellate Court of Illinois, Second District.

July 21, 1966.

Rehearing Denied Sept. 7, 1966.

Clausen, Hirsh, Miller & Gorman, Robert J. Rafferty, Chicago, for appellants.

Carroll, Leali & Gitlin, Woodstock, Robert C. Liston, Wheaton, for appellees.

THOMAS J. MORAN, Presiding Justice.

Plaintiffs appeal from orders entered in favor of the defendants dismissing the complaint on the grounds of estoppel by verdict.

Plaintiffs Creeco Company, a corporation, herein referred to as Creeco, and Lillibridge Manufacturing Company, a corporation, herein referred to as Lillibridge, sued Northern Illinois Gas Company, herein referred to as Northern, and Porter Contracting Company, a corporation, herein referred to as Porter. The complaint filed in the circuit court of McHenry County charges Northern and Porter with both negligence and wilful and wanton misconduct in causing an explosion and resultant fire in a building owned by Creeco and occupied by Lillibridge. Creeco sued for damages to the building and Lillibridge sued for damages to the contents.

In a prior action arising out of the same explosion, one Mildred Peterson filed suit in Kane County charging Creeco, Lillibridge, Northern and Porter with negligence. The various defendants filed answers but no cross-pleadings or counterclaims were filed. Creeco was voluntarily dismissed as a defendant. Northern and Lillibridge were found guilty of negligence and Porter was found not guilty.

During the Peterson trial it was established that one D. F. Creedon was President of both Lillibridge and Creeco; that the other officers were identical in both corporations and that there was some common ownership of the shares of the two corporations. During the Peterson trial Mr. Creedon testified that he had observed a gas leak in the vicinity of the plant and had mentioned it to an employee of Northern and had also observed Porter doing excavating work in the area. A witness named Valine who is an employee only of Lillibridge also testified to having detected gas odors prior to the explosion. Creedon and Valine were both cross-examined extensively by the attorneys for Northern and Porter and it is alleged that Valine was impeached in certain aspects of his testimony. In the instant case the motions for judgment contained transcripts of the testimony of both Creedon and Valine in the prior case and the defendants successfully contended in the trial court that they were entitled to judgment on the basis of estoppel by verdict.

The rules pertaining to estoppel by verdict have been stated on numerous occasions by Illinois courts of appeal. The most recent statements were by this court in Chas. Ind Co. v. Cecil B. Wood, Inc., 56 Ill.App.2d 30, 205 N.E.2d 786 (1965), and by the First District Appellate Court in Lynch v. Chicago Transit Authority, 62 Ill.App.2d 220, 210 N.E.2d 792 (1965).

Briefly stated the doctrine of estoppel by verdict is that when some specific fact or question has been actually and directly an issue and has been adjudicated in a former suit and the same fact or question is again put in issue in a subsequent suit between the parties or their privies who were parties in a former suit, the determination of that fact or question in the former suit, if properly presented and relied on, is conclusive upon the parties and their privies in the latter suit, without regard to whether or not the cause of action is the same in both suits. It is not necessary that the parties in the prior litigation were on opposite sides or that the issues between them were raised by pleadings so long as the parties were adversaries in fact.

The Ind case arose after a motorist had struck a concrete traffic signal which was being constructed on a traffic island in Rockford. The motorist sued the general contractor Ind, the sub-contractor Wood and the City of Rockford. Ind was found guilty and Wood and the City of Rockford were found not guilty. Thereafter, Ind filed an action for indemnity against Wood charging that Wood was guilty of active negligence and that Ind was guilty only of passive negligence. In reviewing the proceedings in that case we came to the conclusion that the plaintiffs in the first suit earnestly sought to impose liability on the three defendants and that Ind, in conducting the defense, actively sought to establish the negligence of Wood. We held that Ind, having actively sought in the first suit to establish responsibility on Wood and having failed to do so, was estopped from making the same claim in the second case.

In the Lynch case the litigation involved a collision between an automobile driven by Lynch and a bus. In the first case a bus passenger sued both Lynch and the Transit Authority. Lynch was charged with negligence. The plaintiff obtained a verdict against both parties. In the second case Lynch sued the...