Williams v. Brown Mfg. Co., SOMERVILLE-ILLINOIS

• Decision Date: 27 March 1968
• Docket Number: Gen. No. 67--58,SOMERVILLE-ILLINOIS
• Citation: 93 Ill.App.2d 334,236 N.E.2d 125
• Parties: James WILLIAMS, Plaintiff-Appellee, v. BROWN MANUFACTURING COMPANY, Inc., a Corporation, Defendant-Appellant, Illinois Power Company, Defendant. BROWN MANUFACTURING COMPANY, Inc., a Corporation, Third-Party Plaintiff-Appellant, v.COMPANY, a Corporation, Third-Party Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 125

236 N.E.2d 125

93 Ill.App.2d 334

James WILLIAMS, Plaintiff-Appellee, v. BROWN MANUFACTURING COMPANY, Inc., a Corporation, Defendant-Appellant, Illinois Power Company, Defendant.

BROWN MANUFACTURING COMPANY, Inc., a Corporation, Third-Party Plaintiff-Appellant, v. SOMERVILLE-ILLINOIS COMPANY, a Corporation, Third-Party

Defendant-Appellee.

Gen. No. 67--58.

Appellate Court of Illinois, Fifth District.

March 27, 1968.

Martin J. Corbell, Sonnemann & Corbell, Vandalia, Gordon Burroughs, Burroughs, Simpson & Burroughs, Edwardsville, for defendant-appellant

William W. Schooley, Beatty, Schooley & Theis, Granite City, for plaintiff-appellee.

GOLDENHERSH, Justice.

Defendant, Brown Manufacturing Company, Inc., appeals from the judgment of the Circuit Court of Madison County entered upon a jury verdict in the amount of $40,000.00.

In his fourth amended complaint plaintiff alleges that defendant was a manufacturer of trenching machines, that plaintiff, in the course of his employment by Somerville-Illinois Company, was operating a trencher manufactured by defendant, that the machine bucked, jumped a number of feet to the rear, knocking plaintiff to the ground and running over him, causing him to suffer serious injuries. Plaintiff alleges that the injuries were suffered as the direct and proximate result of 'an unreasonably dangerous condition' of the trencher, and the condition existed at the time the trencher left the control of the defendant. Plaintiff alleges further that the trencher was in an unreasonably dangerous condition when it left the control of defendant in one or more of several respects which will be later enumerated and discussed.

Defendant answered, denying the material allegations of the complaint, and asserted as 'affirmative defenses', (a) that the action was barred by the provisions of Chapter 83, sections 13 and 15, Ill.Rev.Stat., and (b) the plaintiff had 'assumed all risk in relation to use and operation' of the trencher. Defendant filed a Third Party Complaint directed against plaintiff's employer, Somerville-Illinois Company, alleging that any 'injury to plaintiff, if any, was proximately, primarily and actively caused by negligence of Somerville-Illinois Company' and praying judgment indemnifying defendant against any judgment rendered against it in plaintiff's action.

Somerville-Illinois, and plaintiff, filed separate motions for severance of the third party action, the motions were allowed and the cause proceeded to trial.

Defendant has briefed and argued numerous grounds for reversal. The first assignment of error to be considered is that the trial court erred in denying defendant's motion for a change of venue from Madison to Bond County.

Illinois Power Company was named as a party defendant in plaintiff's original complaint. The occurrence out of which the suit arises took place in Bond County. Defendant filed a motion for change of venue, supported by affidavit of counsel, alleging that venue exists, if at all, in Bond County, that defendant, Illinois Power Company, was joined solely for the purpose of fixing venue in Madison County, and not in good faith, nor with the expectation of obtaining judgment against Illinois Power Company, that Illinois Power Company would be dismissed at close of plaintiff's case and such dismissal would be highly prejudicial to defendant. As predicted by defendant, at the close of plaintiff's case the court allowed the motion of Illinois Power Company for a directed verdict.

A review of the record shows that defendant, in a special and limited appearance supported by affidavit, alleges it is an Iowa corporation, not authorized to transact business in Illinois. Section 6(1) of the Civil Practice Act (Ch. 110, sec. 6(1), Ill.Rev.Stat.1965) provides in part--'A foreign corporation not authorized to transact business in this State is a nonresident of this State'. Section 5 of the Civil Practice Act provides that if all defendants are nonresidents of Illinois, an action may be commenced in any county.

Nothing in this record supports defendant's contention that the joinder of Illinois Power Company as a defendant was not in good faith. Assuming, arguendo, that such joinder was not in good faith, defendant, as a foreign corporation not authorized to do business in Illinois, could properly be sued in any county, and the trial court did not err in its denial of the motion for change of venue.

We shall next consider defendant's contention that the trial court erred in allowing the motions of plaintiff and third party defendant for severance of the third party action.

Defendant argues that it has been put to substantial expense in the defense of plaintiff's action, and if defendant is ultimately held liable, it will be put to additional expense in pursuing its action for indemnity. It contends that it was entitled to have the issues of its liability and its right to indemnity determined in a single trial. It argues further that it was deprived of certain tactical trial advantages in presentation of evidence, and would have been entitled to benefits of 'automatic discovery not otherwise available to defendant'.

As to the latter contention defendant has not pointed out, nor does this court perceive, in what manner its discovery was limited by the order of severance.

Whether, and under what circumstances, a trial court should order severance of third party actions, has presented a difficult issue to both our trial and reviewing courts. The complexity of the problem is pointed up in the excellent summaries prepared by Judge Hallett and Professor Vitullo (Report of The Twelfth Annual Illinois Judicial Conference 1965 pp. 88--89) and an excellent and comprehensive article in the Summer edition of the Law Forum (Feirich--Third Party Practice, Summer Volume 1967 page 236, l.c. 268, The University of Illinois Law Forum).

Upon reviewing the authorities, we conclude that a motion to sever a third party action, like other motions to sever, is addressed to the sound discretion of the trial court, Mount v. Dusing, 414 Ill. 361, 111 N.E.2d 502, and the trial court's ruling should not be disturbed unless a reviewing court can say that the trial court abused its discretion. Johnson v. Johnson, 5 Ill.App.2d 453, 125 N.E.2d 843.

This action was pleaded and tried on a theory of strict liability in tort (Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182), and under this theory plaintiff was not required to prove negligence. Defendant's third party complaint charges the third party defendant with a number of acts of negligence and examination of the pleadings shows that trial of the third party action Defendant contends that the trial court erred in denying its motion for directed verdict based upon its affirmative defense that plaintiff's cause of action was barred by the provisions of Ch. 83, secs. 13 and 15, Ill.Rev.Stat. Plaintiff's original complaint was filed May 10, 1963 alleging injuries as the result of an occurrence on May 19, 1961. At the close of all the evidence, prior to submission of the case to the jury, the parties stipulated that the evidence shows that the trencher was designed, manufactured, sold and out of the control and possession of the manufacturer more than 2 years before the complaint was filed. Defendant moved for directed verdict, and the motion was denied.

along with the principal suit might well have presented many problems. The number of points briefed and argued by the parties demonstrates the complexity of the trial of the issues in the principal cause of action. Defendant has not demonstrated that the order of severance prejudiced any of its 'substantial rights', and from our review of the record we cannot say that the trial court abused its discretion.

Neither party has cited, nor has this court found, an opinion of an Illinois court of review in which the precise issue presented here is decided or discussed. Counsel have cited numerous authorities in support of their contentions including 4 A.L.R.3rd 821, wherein many cases are gathered and discussed. The pattern which evolves from a review of the cases is that a distinction is made between causes of action which arise from a breach of warranty and those which are the result of a sudden trauma and sound in tort. Illinois has followed the rule that when the cause of action accrues as the result of a sudden trauma and is in tort, the statute of limitations runs from the day on which the injury is done. Gray v. American Radiator & Standard Sanitary Corporation, 22 Ill.2d 432, 176 N.E.2d 761.

The doctrine of strict liability in tort, as enunciated in Suvada, does not depend upon either negligence or warranty as the basis for liability. The action is in tort and it appears to us that the same rule should apply in this type of tort as would be applicable in an action in tort based upon negligence. In Gray v. American Radiator, supra, the Supreme Court said, at page 435, 176 N.E.2d at page 762: 'The wrong in the case at bar did not originate in the conduct of a servant physically present here, but arose instead from acts performed at the place of manufacture. Only the consequences occurred in Illinois. It is well established, however, that in law the place of a wrong is where the last event takes place which is necessary to render the actor liable. Restatement, Conflict of Laws, sec. 377. A second indication that the place of injury is the determining factor is found in rules governing the time within which an action must be brought. In applying statutes of limitation our court has computed the period from the time when the injury is done. Madison v. Wedron Silica Co., 352 Ill. 60, 184 N.E.2d 901; Leroy v. City of Springfield, 81 Ill. 114. We think it is clear that the alleged negligence in manufacturing the valve cannot be separated from the resulting injury; and that for present purposes, like those of liability and limitations, the tort was committed in...