Moore v. Jewel Tea Co.

• Citation: 263 N.E.2d 103,46 Ill.2d 288
• Decision Date: 29 September 1970
• Docket Number: No. 42802,42803,42802
• Parties: Frances L. MOORE et al., Appellees, v. JEWEL TEA COMPANY et al., Drackett Products Company et al., Appellants.
• Court: Supreme Court of Illinois

Page 103

263 N.E.2d 103

46 Ill.2d 288

Frances L. MOORE et al., Appellees, v. JEWEL TEA COMPANY et al., Drackett Products Company et al.,

Appellants.

No. 42802, 42803.

Supreme Court of Illinois.

Sept. 29, 1970.

Wildman, Harrold, Allen & Dixon, and Jon R. Waltz, Chicago (Max Wildman, Harold W. Huff and Howard T. Brinton, Chicago, of counsel) for appellants.

James A. Dooley, Chicago, for appellees.

CULBERTSON, Justice.

On November 22, 1959, Frances L. Moore sustained loss of sight in both eyes as the result of the explosion of a can of Drano, a product used to open clogged drains, which she had purchased the day before at Jewel Tea store. Joined by her husband, Donald G. Moore, whose cause of action arose out of marital relationship, she subsequently brought suit for damages against Jewel Tea; Heekin Can Company, manufacturer of the container; The Drackett Company (Drackett), the manufacturer of Drano; and The Drackett Products Company (Products), the latter, as admitted in the joint answer of the two companies to the complaint on which the cause was tried, being a wholly owned subsidiary of Drackett through which its products were sold. After an extended trial, judgment was entered against Drackett and Products on jury verdicts which awarded $900,000 in compensatory damages to Mrs. Moore, $20,000 to Donald G. Moore, and an additional $10,000 in punitive damages to Mrs. Moore. By other verdicts, defendants Jewel Tea and Heekin Can were found not liable. On separate appeals by Drackett and Products to the appellate court, in whose opinion the facts and circumstances of trial may be found in greater detail, the judgment was affirmed. (Moore v. Jewel Tea Co., 116 Ill.App.2d 109, 253 N.E.2d 636.) We have granted and consolidated separate petitions for leave to appeal to this court largely to consider attacks of defendants which center on the opinion of the appellate court.

It may be said at the outset that we are in basic accord with the trial and appellate courts insofar as they found and concluded: That the evidence was sufficient to support the verdicts against these defendants; that the cause was, despite the separate appeals, litigated as if the Drackett companies were a single entity; that the theory of Res ipsa loquitur was properly submitted to the jury; and that it was proper to permit plaintiffs' allegations of wilful and wanton conduct to remain in the case. Further, unless otherwise treated upon herein, we find no reason to disagree with the appellate court's disposition of errors claimed to have occurred in respect to the admission or refusal of evidence by the trial court, or with its determination that the argument of plaintiffs' counsel did not exceed the bounds of propriety. As to such matters we see not useful purpose or compelling necessity which would justify a repetition of the facts, authorities and judicial reasoning which support the judgment of the appellate court. Accordingly, we shall confine ourselves principally to those issues which defendants advance as 'arising primarily from the decision of the Appellate Court.'

We are first met by contentions of Drackett, accompanied by assertions that the appellate court ignored and misconstrued the record, that plaintiffs' actions against it were barred by the two-year statute of limitations applicable to the commencement of damage actions for injury to the person. (Ill.Rev.Stat.1965, ch. 83, par. 15.) In this regard, the record shows that plaintiffs filed a second amended complaint within the statutory period wherein only Jewel Tea and Products were named as defendants. This complaint alleged that Products manufactured and distributed for sale the product known as Drano, and these allegations were admitted in the answer of Products by its failure to deny. (See: Ill.Rev.Stat.1959, ch. 110, par. 40 (2).) Still within the statutory period, plaintiffs filed a third amended complaint, adding Heekin Can as a defendant, and repeated its allegations that Drano was manufactured and distributed for sale by Products; however, after the period of limitations expired, Products filed an answer denying these allegations it had previously admitted. With the pleadings in this state, plaintiffs then filed a fourth amended complaint naming Drackett as an additional defendant and alleging that Drackett 'and/or' Products manufactured and sold Drano. Pleading only the statute, Drackett presented a motion that the cause be dismissed as to it; however, the motion was denied after hearing and Drackett ordered to answer. Whether or not the motion was heard on its merits cannot be determined from the excerpts of record filed here; but, in any event, Drackett thereafter pleaded the statute as an affirmative defense in its answer and continued to do so in its answer to a fifth amended complaint subsequently filed. (See: Ill.Rev.Stat.1963, ch. 110, pars. 48(3) and (4).) Inconsistently, however, as shall later be detailed, it permitted the cause to be tried and submitted to the jury as if it and Products were a single entity.

Plaintiffs contend, and the appellate court so held, that the issue of limitations is not open to review due to the failure of Drackett to raise the matter in its post-trial motion. The appellate court considered this contention and held that the limitations issue had not been preserved for review. However, in spite of this holding, that court went on to decide the merits of the limitation defense and ruled that the Statute of Limitations was not a bar to the action against Drackett. In this posture of the appeal, we think it is appropriate to also consider the merits of the defense.

Section 46(4) of the Civil Practice Act. (Ill.Rev.Stat.1963, ch. 110, par. 46(1)) provides that a cause of action against a person not originally named as a defendant is not bound by lapse of time under certain circumstances. It is unnecessary, in this opinion to set forth the detailed requirements of the section, nor the evidence which, in our opinion, brings the case within the section. These details were fully discussed in the opinion of the appellate court. It is sufficient to say that we agree with the finding of the appellate court that Drackett can be deemed to have known from the beginning that plaintiffs were seeking to enforce a claim against it. Under these circumstances, together with the other evidence set forth in the opinion of the appellate Court, the Statute of Limitations was not a bar to the action against Drackett. See Roth v. Northern Assurance Co.,32 Ill.2d 40, 49, 203 N.E.2d 415.

Count I of the ultimate complaint charged all defendants with strict tort liability for having placed an unsafe and defective product on the market, and, as to such count, one of the plaintiffs' instructions to the jury was as follows: 'You are instructed that under Count I of the complaint of Frances L. Moore, any person who sells or manfactures a product or a component part thereof in a defective condition which is unreasonably dangerous to the user or consumer is subject to liability for any physical harm which is proximately caused by such defective or dangerous condition; and this applies without reference to the care used by the seller or manufacturer.' As noted, the verdicts of the jury exonerated the defendants Jewel Tea and Heekin Can, but found in favor of plaintiffs against Drackett and Products. It is now contended by the latter defendants, who intemperately charge the appellate court with having deliberately ignored the point, that the finding in favor of Jewel Tea, (the ultimate party in the line of production and marketing through which the product reached Mrs. Moore,) necessarily carries with it a finding in favor of Drackett and Products on the issue of strict liability. Or, to put it another way, they interpret the instruction as telling the jury that all or none of the defendants would be liable under the strict liability count, and assert that since the jury exculpated Jewel Tea, it must also have exculpated Drackett and Products.

No citation of authority has accompanied this theory and position, either here or in the appellate court (see: Village of Roxana v. Costanzo,41 Ill.2d 423, 426, 243 N.E.2d 242; Hirschfeld v. Barrett, 40 Ill.2d 224, 232, 239 N.E.2d 831; 2 I.L.P., Appeal and Error, § 556), and we also note that it was not advanced as grounds for reversal in the appellate court, but merely as an assumption on the part of these defendants which purportedly gave them justification for limiting their arguments to the issues of negligence and wilful and wanton conduct. But even if it be conceded for the purpose of argument that this theory of defendant finds support in the law and the record, they are not aided thereby. It overlooks that a general verdict was returned against them and erroneously assumes a finding by the jury only on the issue of strict liability. There were, however, three counts in the complaint against these defendants, Viz., negligence, strict liability, and wilful and wanton conduct, all of which were submitted to the jury under proper instructions. It is settled law that where several causes of actions are charged and a general verdict results, the verdict will be sustained if there are one or more good causes of action or counts to support it. (City of Litchfield v. Thorworth, 337 Ill. 469, 169 N.E. 265; Wolford Morris Sales, Inc. v. Weiner, 75 Ill.App.2d 238, 221 N.E.2d 308; 35 I.L.P., Trial, § 316.) Here, despite contention of defendants to the contrary, there was, as found by the courts below, sufficient evidence to support each count. Furthermore, as aptly pointed out by the appellate court, had these defendants desired to ascertain upon which count or counts the jury returned its verdicts, they could have done so by submitting a separate form of verdict as to each count. (See: Ill.Rev.Stat.1965, ch. 110, par. 68(3).) Not having done so, they cannot complain or seek to take advantage of their failure....