Housman v. C. A. Dawson & Co.

• Decision Date: 20 February 1969
• Docket Number: Gen. No. 10955
• Citation: 106 Ill.App.2d 225,245 N.E.2d 886
• Court: United States Appellate Court of Illinois
• Parties: Fred H. HOUSMAN, Plaintiff-Appellant, v. C.A. DAWSON & CO., a Corporation, Defendant-Appellee.

Page 886

245 N.E.2d 886

106 Ill.App.2d 225

Fred H. HOUSMAN, Plaintiff-Appellant, v. C.A. DAWSON & CO., a Corporation, Defendant-Appellee.

Gen. No. 10955.

Appellate Court of Illinois, Fourth District.

Feb. 20, 1969.

Thomas F. Londrigan, Robert Weiner, Springfield, for plaintiff-appellant.

Foreman, Rammelkamp, Bradney & Hall, Jacksonville, for defendant-appellee.

CRAVEN, Justice.

This is an appeal from the judgment of the circuit court of Menard County entered upon a directed verdict for the defendant and against the plaintiff at the close of the plaintiff's evidence in an action alleged to have been caused by defective lumber sold to the plaintiff's employer by the defendant.

Initially, this appeal was filed in the Supreme Court, it being the position of the appellant that the Supreme Court had jurisdiction on direct appeal because the action of the trial court in directing a verdict deprived the plaintiff-appellant of his right to a jury trial as guaranteed by the state and federal constitutions. The Supreme Court, on motion, transferred the case to this court and in its order of transfer determined that the issue presented on this appeal does not involve a substantial constitutional question as to the right to a trial by jury.

In Pedrick v. Peoria & Eastern R. R., 37 Ill.2d 494, 229 N.E.2d 504 (1967), the Supreme Court observed that it is wellsettled that trial courts may constitutionally direct verdicts and that minor variations in the rules governing such action can scarcely render the action unconstitutional. In view of the observation there made and the language of the order of transfer, we believe the issue raised as to the denial of a jury trial by a directed verdict in this case is not a constitutionally debatable issue in the appeal.

We turn now to the merits of this, an essentially products-liability case. The complaint, in three counts, sought to recover from C.A. Dawson & Co. for the injuries incurred. One count stated a cause of action in strict tort liability, one a cause of action in implied warranty, and the other a cause of action in negligence. The issues presented and argued on the pleadings were essentially disposed of by the trial court in its ruling on certain motions to strike and dismiss and amendments to the complaint. As we view this record, the ruling of the trial court on the motion for a directed verdict at the close of the plaintiff's case reaises an evidentiary question--not one of pleadings--and we will so treat it.

The plaintiff, an employee or 'hired man' of one Raymond Wilken, fell and suffered injuries when a two-by-four piece of lumber purchased from the defendant broke under his weight while the plaintiff was constructing a lean-to next to a machine shed on his employer's farm. The plaintiff had had no experience in building this type of structure nor had he had any prior carpentry experience. His employer wanted to construct the lean-to on one side of a dome-type shed. The lean-to was of pole construction and the structure was described to an employee of the defendant at the time of the purchase of the materials. The two-by-fours were to be used as purlins to support the roof of the structure. Two-by-fours, 14 feet long, were placed over and perpendicular to two-by-six rafters. The rafters were some 39 inches from center to center. The poies and rafters were in place at the time of the injury and the plaintiff was on top of the structure and the two-by-fours had been handed to him. He was nailing them in place, standing for support on a two-by-four between two rafters. The two-by-four broke. The plaintiff fell and was injured.

William A. Oliver, professor of civil engineering at the University of Illinois, was called as a witness for the plaintiff. The witness was a registered structural engineer, a member of the American Society for Testing and Materials, and qualified as an expert as to wood structures and lumber standards. This witness described the two-by-four which broke under the weight of the plaintiff as a piece of variable grade material with a knot cluster. He described the knot cluster in the material and the reasons that the existence of a knot cluster would reduce the strength of the wood. As to the two-by-four under discussion, the witness stated that there was a reduction in strength resulting from the knot caused by cross-graining. He described the two-by-four as of such low strength that it would take a very small load to cause it to fail or to cause it to break. He further stated that upon breaking there would be a sudden break, unlike the breaking of normal wood which breaks with a splintering failure--a slow breaking and one that would give a warning.

Upon cross-examination this witness further stated that a...