Standard Oil Co. v. Daniel Burkhartsmeier Cooperage Co.

• Decision Date: 16 February 1948
• Docket Number: Gen. No. 44235.
• Citation: 77 N.E.2d 526,333 Ill.App. 338
• Parties: STANDARD OIL CO. (of Indiana) v. DANIEL BURKHARTSMEIER COOPERAGE CO.
• Court: United States Appellate Court of Illinois

333 Ill.App. 338

77 N.E.2d 526

STANDARD OIL CO. (of Indiana)

v.DANIEL BURKHARTSMEIER COOPERAGE CO.

Gen. No. 44235.

Appellate Court of Illinois, First District, First Division.

Feb. 16, 1948.

Appeal from Superior Court, Cook County; John J. Lupe, Judge.

Action by Standard Oil Company (of Indiana), a corporation, against Daniel Burkhartsmeier Cooperage Company, a corporation, for breach of a written warranty. From the judgment, defendant appeals.

Reversed and remanded on conditions stated in opinion.Campbell, Clithero & Fischer, of Chicago, for appellant.

Erwin W. Roemer, James A. Velde and Stark Ritchie, all of Chicago (Gardner, Carton & Douglas, of Chicago, of counsel), for appellee.

NIEMEYER, Justice.

Defendant appeals from a judgment for $28,500 entered against it in plaintiff's action for alleged breach of a written warranty in the sale of a reconditioned steel barrel.

Plaintiff, a dealer in petroleum products, sold and delivered barrels for the storage of its products. Defendant's business included the cleaning and reconditioning of used steel barrels or drums and selling them at wholesale. On October 28, 1938, plaintiff, confirming a telephone order of the previous day, sent defendant a written order on its printed form for 1,200 55-gallon 18-gauge reconditioned steel barrels ‘To be thoroughly cleaned and painted. These barrels are to be entirely satisfactory in every respect or they will be returned for full credit at no expense to us. For resale.’ In conformity with this order defendant delivered 100 barrels to plaintiff's Cortland St. yard. Ten days later plaintiff sold and delivered a barrel, claimed by it to have been received from defendant, to a customer for the storage of fuel oil. Plaintiff's driver placed the barrel in the basement and returned to the truck for a wrench. In his absence Lawrence Veneigh, the 12-year-old son of the customer, lighted a match near the barrel, causing an explosion and serve injury to himself. When claims were made against plaintiff it tendered the defense to defendant and informed defendant that it would demand indemnification for any loss and expense incurred or to be incurred because of the injuries to the boy. Defendant refused to accept the tender. In 1939 the father of the boy, as next friend and on his own behalf, brought suit to recover damages sustained, charging plaintiff and defendant here with negligence in selling the barrel containing explosive substances, etc., and further charging plaintiff with breach of an express and implied warranty that the barrel would be safe and adequate for the storage of fuel oil and had been properly cleaned.

Further proceedings in that suit were as follows: The answer of plaintiff here denied the charges of negligence and breach of warranty and alleged that the barrel delivered by it had been received from defendant. Defendant here denied the charge of negligence and asserted that all barrels delivered by it to plaintiff had been thoroughly cleaned and that none contained explosive substances. The jury was instructed at the request of plaintiff here that if it believed the barrel in question was purchased by plaintiff from defendant, a reputable company; that the barrel was sold and received as being clean; that plaintiff here in the exercise of ordinary care could not know what the barrel had previously contained and that nothing was put into the barrel after it was received by plaintiff here out the barrel was delivered to plaintiff's customer in the same condition as when received from defendant, then the jury should find the plaintiff here not guilty. The jury was instructed at the request of defendant here that before it could find the issues against defendant it must find that the barrel in question was sold and delivered by defendant to plaintiff herein and that Veneigh's injury and damages were the natural and probable consequence of the negligence of defendant. By their general verdicts the jury found defendant not guilty and the plaintiff guilty. After remittitur judgments were entered against plaintiff herein for $22,500. These judgments were paid December 26, 1941. In 1942 plaintiff brought this action to recover from defendant the amount paid on the judgments and the money necessarily expended in defense of the Veneigh suit. No question is raised as to the sufficiency of the complaint.

Plaintiff's claim is based on an alleged breach of an express warranty in the contract of sale that the barrels were to be thoroughly cleaned. Defendant moved to dismiss the complaint under section 48 of the Civil Practice Act, Ill.Rev.Stat.1947, c. 110, § 172, ‘on the ground of estoppel by verdict, because the controlling question, i. e., whether or not defendant delivered to plaintiff the barrel involved in the accident had been decided adversely to plaintiff’ in the Veneigh suit. In support of the motion defendant filed the affidavit of John F. Arnold, one of its attorneys in the trial of the Veneigh suit, stating in substance the pleadings, instructions, verdicts and judgments in that suit as heretofore outlined. Attached to the affidavit were the pleadings and affidavits of 8 of the jurors. These affidavits are identical in form, each stating that one of the questions presented to the jury was whether the barrel involved in the accident was sold and delivered to plaintiff by defendant, and that in deciding the question it was affiant's opinion, and, he believed, the opinion of all the jurors trying the case, that the barrel was not sold and delivered to plaintiff by defendant, and that because of that opinion he, and in his opinion the other jurors, found the defendant not guilty. By order of court restoring lost files there is now in the record the affidavit of one of the jurors in the Veneigh case which counsel for plaintiff say was presented to the trial court with a memorandum of points in opposition to defendant's motion to dismiss. In this affidavit the affiant states that from the evidence she was conviced that the barrel involved in the accident had been sold and delivered to plaintiff by the defendant and that she found the plaintiff herein guilty because it had sold the barrel to Veneigh, and she believed at the time that it had a good claim against the defendant here. Defendant insists that the court erred in restoring this affidavit to the files. For reasons hereafter appearing we do not consider it necessary to decide that question. As said in People ex rel. v. Wyanet Electric Light Co., 306 Ill. 377, 383, 137 N.E. 834, 836, ‘It is absolutely necessary, in order that a former judgment should operate as an estoppel by verdict, that there shall have been a finding of a specific fact in such former judgment or record that is material and controlling in that case and also material and controlling in the pending case. It must also conclusively appear that the matter of fact was so in issue that it was necessarily determined by the court rendering the judgment interposed as a bar by reason of such estoppel. If there is any uncertainty on this point by reason of the fact that more than one distinct issue of fact is presented to the court, the will not be applied, and for reason that the court may have decided it upon one of the other issues of fact. Chicago Theological Seminary v. People, 189 Ill. 439, 59 N.E. 977;Kitson v. Farwell, 132 Ill. 327, 23 N.E. 1024;Sawyer v. Nelson, 160 Ill. 629, 43 N.E. 728.’ See also Haack v. Lindsay Light & Chemical Co., 393 Ill. 367, 66 N.E.2d 391. In the Veneigh case there was no specific finding of fact as to the origin of the barrel. Although warned that plaintiff herein would look to it for indemnification in the event of an adverse result in that suit, defendant did not request that a special interrogatory determining the origin of the barrel be submitted to the jury. Neither of the instructions, stated in substance in Arnold's affidavit, necessarily required a determination of the origin of the barrel. Under the instruction given at the request of plaintiff here the jury could have found that plaintiff received the barrel from the defendant, but that in the exercise of ordinary care plaintiff could have known what the barrel had previously contained. Under the instruction requested by defendant jury could have determined that defendant delivered the barrel to plaintiff but that Veneigh's injury and damages were not the natural and probable consequence of negligence of the defendant. It therefore does not appear from the record that the question of the origin of the barrel was determined by a finding of the specific fact, or necessarily determined by the jury in arriving at their verdicts upon the issues presented and under the instructions of the court. Defendant, however, contends that the affidavits of the 8 jurors show that this question was in fact determined by the jury. Plaintiff contends that the affidavits of the jurors are not competent to show the basis of the jury's verdict and that, if competent, they do not prove the fact by the clear, certain and convincing evidence required of a party asserting an estoppel by verdict. Chicago Theological Seminary v. People, 189 Ill. 439, 444, 59 N.E. 977. Plaintiff's contentions must be sustained. In People ex rel. Bear v. Burt, 267 Ill. 640, 108 N.E. 708, 709, cited by defendant, the court said: ‘Where a former recovery is relied on as a bar, parol evidence not contradictory of the record may be introduced to show what was included within and investigated on the trial of the issue. If the record does not show the full and true state of the controversy and matters investigated, parol evidence is admissible to supply what is not shown.’ It must be noted that the language quoted limits the parol evidence to that necessary to show ‘what was included within and investigated on the trial of the issue,’ and the ‘true state of the controversy and matters investigated.’ In Little v. Blue Goose Motor Coach Co., 346...