author: Mr. PRESIDING JUSTICE SULLIVAN

text:
    Board of Education, South Stickney School District 111, Plaintiff-Appellee, v. Karlene Johnson et al., Defendants-Appellants.
    (No. 59191;
    First District (5th Division)
    April 11, 1974.

      Modified upon denial of rehearing May 17, 1974.

      Kleiman, Cornfield and Feldman, of Chicago (Gilbert Feldman, of counsel), for appellants.
    Scariano and Gubbins, of Chicago (Bruce C. Mackey, of counsel), for appellee.
   Mr. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

Defendants appeal from the entry of a summary judgment in plaintiff’s favor and from the denial of their motion for summary judgment.

This action involves a collective bargaining agreement (agreement) entered into between the Board of Education (plaintiff) and the teachers’ union (union), wherein plaintiff recognized the union as the sole and exclusive bargaining agent for teaching employees. Article III of the agreement provides a definition and criteria for grievance procedures, which, in the event of continued impasse, culminate with the submission of disputes to final and binding arbitration.

In its complaint, plaintiff sought, in part, a stay of arbitration from the grievance filed by ICarlene Johnson (Johnson), a member of the bargaining unit. Johnson, in her answer, stated that plaintiff, in violation of the agreement, transferred her to another school and refused to assign her to an open class at her school. Plaintiff assigned two reasons for the requested stay: (1) should the dispute go to arbitration, plaintiff could not be bound by the decision of the arbitrator; and (2) the matter in dispute was one vested within the discretion of plaintiff and could not be submitted to binding arbitration. Plaintiff, therefore, prayed that the court under section 57.1 of the Civil Practice Act declare the arbitration provision contained in the agreement null and void, or that the arbitration provision was null and void to the extent that it required arbitration of transfers and assignments of members of the bargaining unit.

In Count II of the complaint, plaintiff sought the same relief noted above but with respect to a different grievance. Defendants Laura Creighton and Shirley Hackel (Creighton-Hackel), members of the bargaining unit, filed a grievance in which they complained that they were required to do the clerical work of writing student names on monthly attendance cards. This grievance, unlike the one above, had been submitted to arbitration with an award in favor of Creighton-Hackel. Plaintiff contends that: (1) the grievance was not one which should have been arbitrated; and (2) the decision of the arbitrator was not binding, inasmuch as the grievance was a matter within plaintiff’s discretion and not delegable to an arbitrator.

Both parties filed motions for summary judgment. The principal facts set forth in the memorandums in support of the motions were as follows: Plaintiff operates the public schools in Stickney Township in grades K through 8, and the union is the bargaining representative for the teachers employed by the plaintiff. The Johnson grievance concerned a purported violation by the plaintiff of Article IV of the agreement, dealing with transfers of teachers from one school to another. According to a memo signed by the chairman of the grievance committee, and included as part of the record, Johnson, who was certified to teach grades K through 8, applied for a fifth-grade position in her school after her first-grade class was closed. Plaintiff instead transferred a fourth grade teacher to the fifth grade position and assigned Johnson to teach first grade in another school in the district. Johnson contended that a first-year teacher then teaching second grade should have been assigned to the other school and Johnson, having seniority, should have been retained to teach second grade in her school. After exhausting the grievance procedures outlined in the agreement, the union sought to have the dispute arbitrated. Thereafter, plaintiff filed its complaint seeking to have the arbitration stayed and the arbitration provision itself declared null and void in its entirety or to the extent that it required arbitration for the transference and assignment of teachers.

The Creighton-Hackel grievance concerned a purported violation by plaintiff of article IX of the agreement in that teachers were required to write in the names of their students on monthly attendance cards. This grievance reached arbitration and after a discussion of the arbitrability issue, the arbitrator rendered an award favorable to the grievant. It was from this award that plaintiff filed Count II of their complaint, seeking to set it aside, asserting that it could not be bound by an arbitration award, and that plaintiff cannot submit to arbitration matters of discretion vested in it as specifically granted by the legislature vis-a-vis the Illinois School Code.

The trial court, after considering the motions for summary judgment and their supportive documents, found in favor of plaintiff, holding:

“That the Karlene Johnson grievance and demand for arbitration constitutes an attempt to invade the discretion vested in the Board of Education and, as such, is not arbitrable. (Board of Education v. Rockford Education Association, 3 Ill.App.3d 1090).
That the Creighton-Hackel grievances and arbitration, including the ‘Award of Arbitration’ constitutes an attempt to contravene the express mandatory requirements of the Illinois School Code. (Ill. Rev. Stats., ch. 122, par. 24 — 18 and par. 18 — 12) (Teachers shall keep, etc.) (School Boards shall require, etc.) and, as such are not arbitrable grievances.”

On appeal, the following issues were raised: (1) does Illinois statutory or case law specifically exempt from collective bargaining or binding arbitration the subject matter of the grievances in the instant case; and (2) is the decision of the Illinois Appellate Court, Second District, in Board of Education v. Rockford Education Association, Inc. 3 Ill.App. 3d 1090, 280 N.E.2d 286, reconcilable with the decision of this court in Chicago Division of the Illinois Education Association v. Board of Education, 76 Ill.App.2d 456, 222 N.E.2d 243.

OPINION

I.

Presented here is the issue of whether the specific grievances heretofore enumerated can be the subject matter of binding arbitration. The significant question involved, however, is whether submission of disputes to binding arbitration pursuant to a collective bargaining agreement constitutes an illegal delegation of the duties reposed in plaintiff by the Illinois School Code (Ill. Rev. Stat. 1971, ch. 122, par. 10 — 1 et seq.).

In the resolution of the problem presented here, we have examined the cases and authorities governing the various aspects of public sector collective bargaining. Chicago Division of the Illinois Education Association v. Board of Education, 76 Ill.App.2d 456, 222 N.E.2d 243, is significant. In Chicago Division the question of permissive collective bargaining for school boards and teachers’ unions was reached for the first time. In the absence of any legislative expression on the matter and in the light of their apparent belief that the agreement was a practical expedient to the handling of public employment labor relations, the board and the union sought judicial approval of the agreement. The court necessarily confined itself to the factual issue presented to it and held that if a board chose to enter into a collective bargaining agreement the court would, in the absence of any legislative directives to the contrary, sanction such an agreement as a natural extension of the board’s powers. An intervenor in that case argued that in the absence of a statute, collective bargaining was an impermissible delegation of the board’s duties. The court, however, was not persuaded by this argument, although unbridled collective bargaining was not, in our understanding of the case, intended. In affirming the lower court’s decree, the court attempted to limit by judicial action the effect of the collective bargaining agreement by holding that “* * * if negotiations should fail to resolve differences, the decision of the Board of Education should be final”; a position we believe to be irreconcilable with collective bargaining agreements. (See Miller, The Alice-in-Wonderland World of Public Employee Bargaining, 50 Chic. B. Rec. 223 (1969).) We agree with the position taken by Miller on page 225 in regard to the impact of the Chicago Division holding:

"The Appellate Court thus affirmed the lower court’s decree which sanctions bargaining but appears to leave the decision on all negotiated matters up to the school board — a condition which any experienced negotiator in the private sector quickly recognizes as being totally inconsistent with both the concept and the practice of collective bargaining.”

Nevertheless, we support the action taken by the court in attempting to formulate policy consistent with labor practices prevalent in both the public and private sector; that the court limited the scope of the holding can only be attributed to the implicit limitations placed upon any court in passing upon specific facts presented to it.

Defendants argue that Chicago Division and the recent case of Board of Education v. Rockford Education Association, Inc., 3 Ill.App.3d 1090, 280 N.E.2d 286, are irreconcilable. In Rockford, Getts, a member of the collective bargaining unit, applied for an administrative position created by the board. After the board rejected his and all other applicatíons and left the position unfilled, Getts filed a grievance pursuant to the collective bargaining agreement. Getts exhausted all of the procedural steps provided for in the agreement and as a terminal step demanded the grievance be submitted to binding arbitration. The board maintained that selection or employment of employees was not intended to fall within the ambit of the collective bargaining agreement and, in any event, the matter was something that could not be delegated by the board to a third-party arbitrator. The court, in sustaining the board’s position, recognized that Chicago Division sanctioned school board/ union collective bargaining agreements. However, the court went on to hold that such agreements were restricted by the dictates of die Illinois School Code (Ill. Rev. Stat. 1971, ch. 122, par. 10 et seq.), which provides that certain matters are to be decided by the board alone. The finding of the court in this regard is entirely consistent with Chicago Division, in which the court, as a policy matter and as it construed the School Code, decided that boards were not precluded from entering into collective bargaining agreements. Rockford simply stated that certain decisional matters, although contained in the terms of a collective bargaining agreement, could not be delegated.

The argument has been raised that once a board has entered into an agreement that is a partial delegation of its responsibility and, therefore, a further delegation of the resolution of minor disputes under the agreement to an arbitrator is merely a necessary step to implement the agreement. In most of the cases which develop this argument, public employment legislation has been enacted calling for collective bargaining between public employers and employees. While Illinois has no such statute, Chicago Division stands as authority in this state for collective bargaining. Corollary thereto is the question of whether binding arbitration of grievances, limited of course by the mandates of the School Code, is a natural concommitant to the agreement itself and therefore enforceable. In order to resolve this question, we will review some of the cases in other jurisdictions dealing with this issue.

In Local 1226, AFSCME v. City of Rhinelander, 35 Wis.2d 209, 151 N.W.2d 30 (1967), where a grievance arbitration was involved, the applicable state statute specifically provided that collective bargaining agreements between municipal employers and labor organizations “shall be binding” if they contain express language to that effect. The court in upholding the validity of binding arbitration found: “it is illogical to hold in this case that the arbitration provisions are valid but that the court is powerless to enforce them 888 especially in the light of the legislative enactment 8 8 8 that ‘such agreements shall be binding’.” “The legislature has passed statutes doubtless of statewide concern which provide that the city’s agreement to arbitrate grievances is binding on the city.”

In City of Auburn v. Nash, 312 N.Y.S.2d 700, 34 App.Div.2d 345 (1970), involving an appeal from an order granting a stay of arbitration of a grievance filed by an employee, the court upheld the enforceability of arbitration for minor disputes. There a statute provided for collective bargaining between public employers and employees and a recent amendment thereto established a panel of qualified persons to serve as arbitrators. In addition, a governor’s report encouraged the use of terminal arbitration. The court held, on page 705, “that the State itself is not insulated against the operation of an arbitration clause in a contract because the power to contract implies the power to assent to the settlement of disputes by means of arbitration.”

In Tremblay v. Berlin Police Union, 108 N.H. 416, 237 A.2d 668 (1968), where a statute provided for collective bargaining, the grievance procedure clause of a collective bargaining contract was attacked as an unlawful delegation of municipal authority. The court, in sustaining the validity of the arbitration provision, held it was “subordinated to New Hampshire law” (which, among other things, included a statute that provides a party may give notice that it will not be bound by an arbitrator’s decision).

In Oakland County Sheriffs Department v. Local 23, AFSCME (Mich. S.L.M.B., Jan. 8, 1968), where a public employment statute was in effect, it was determined that if a public employer has the duty to bargain and sign a contract with a union, it logically follows that he should have the power to allow an arbitrator to interpret an existing contract. See Note, Arbitration and, Agency Shops as Mandatory Subjects of Bargaining, 14 Wayne L.R. 1238 (1968).

In Central School District No. 1 v. Litz, 304 N.Y.S.2d 372, 60 Misc.2d 1009 (1969), where there was a statute authorizing arbitration, the court determined, on page 376, “[T]he statute authorizes arbitration, the contract delimits the arbitrator’s powers to rule in accordance with law and the court retains power to confirm or reject the decision. * * * Under the circumstances, there is no illegal delegation of power.”

In Local 1518, AFSCME v. St. Clair County Board of Commissioners, 43 Misc.App. 342, 204 N.W.2d 369 (1972), involving a grievance procedure and where an arbitration statute was in force, the court determined, on page 345, “It would be most incongruous if the Legislature, in providing for compulsory arbitration of such matters, traditionally the subject of mutual agreement, did not at least permit compulsory arbitration of the comparatively minor disputes bound to arise from time to time in the administration of the contract.”

In Local 958, AFSCME v. School District, 66 LRRM 2420, the court recognized:

“(1) the collective bargaining agreement in issue was voluntarily entered into by both parties to this suit, and presumably both benefited therefrom, and (2) the provision * * * for binding arbitration provides that while the decision of the arbitrator is final and binding on both parties, the arbitrator’s jurisdiction is “limited” to the interpretation of the meaning of the provisions of this agreement * *

The court concluded that because there was a statute providing for collective bargaining, the right to arbitrate minor disputes was to be implied from the statute, stating: “Certainly giving the power to’ enter into a contract would include the power to settle disputes arising under the terms of such contract * *

Finally, in Gary Teachers Union No. 4 v. School City, 284 N.E.2d 108, 114 (Ind.App. 1972), where, in the absence of any public employment statute, the court sanctioned collective bargaining between a public employer and a teachers’ union and approved binding arbitration, in holding that the School Act there gives the public school authority a broad grant of power, the court stated:

“We believe that the Indiana General School Powers Act passed in 1965 and the Uniform Arbitration Act passed in 1969 together are broad enough to permit the governing bodies of school corporations in the State of Indiana to exercise, as one of many options, the type of agreement here involved. We hold that such broad policy option is implicit in both of the above cited statutes.”

In principle, we agree with the above cases and recognize the salutory effect that binding arbitration has in the resolution of minor matters. However, in those cases, with the exception of the Gary Teachers case, the legislatures of the respective states have expressly provided for public employment labor legislation and, as a consequence, arbitration has a basis in the enabling statutes. In the absence of such a statute here, we cannot say that all disputes arising from the collective bargaining agreement are proper subjects for binding arbitration. In fact, a line of cases has held that certain matters found in the School Code are not to be delegated to an outside party.

However, we are of the opinion that arbitration of certain “minor” disputes pursuant to a collective bargaining agreement does not constitute a delegation by the board, and we believe they should be submitted to binding arbitration in the event of impasse. Tacit approval has apparently been given to this concept by the court in Board of Education v. Champaign Education Association, 15 Ill.App.3d 335, 304 N.E.2d 138 (4th Dist.), wherein the defendants, pursuant to their collective bargaining agreement, filed a “grievance” claiming “specific violations of School Code 24.9 by Unit 4 (plaintiff) and deprivation of equal protection under the law of individual teachers and groups of teachers as guaranteed by Section IIIA(l) of the contract.” This grievance was ultimately submitted to binding arbitration, where the plaintiff filed a motion to dismiss the claim (1) for want of jurisdiction; and (2) on the basis that the grievance was based solely on an alleged violation of the School Code and not on a violation of the agreement in which arbitration is provided. The arbitrator found for defendants, and plaintiff thereafter moved to vacate the award and the trial court set it aside, basing its decision on the fact that the arbitrator had exceeded his power because the agreement did not provide for the grievance raised by defendants. This court affirmed the decision and concluded that the specific grievance was one not encompassed by the terms of the agreement. It recognized, however, that arbitration was an acceptable method of resolving disputes arising out of an agreement, when it stated on page 341:

“Had their [defendants] contention been that they were receiving a lunch period of less than 30 minutes the issue clearly would have been arbitrable, since it would have constituted a claim that the contract provision was being violated and thus a “grievance” within the provisions of Section II A.”

The problem inherent in our deciding that certain “minor” disputes are arbitrable is that standards are necessary to determine which disputes are minor. In the absence of any legislative expression, such standards are lacking in this State.

In this regard, we note that certain matters are specifically reserved to the board by the Illinois School Code and cannot, until such time as the legislature acts, be the subject of binding arbitration. Thus, we believe that only those terms in collective bargaining agreements which are not in contravention of the Code are arbitrable. For example, the School Code provides that the board has the duty “To appoint all teachers * * *” (Ill. Rev. Stat. 1971, ch. 122, pars. 10 — 20, 10 — 20.7) and the cases have held that this power cannot be delegated or limited by contract. (Elder v. Board of Education, 60 Ill.App.2d 56, 208 N.E.2d 423; Stroh v. Casner, 201 Ill.App. 281; Lindblad v. Board of Education, 221 Ill. 261, 77 N.E. 450.) Beyond this negative definition, it becomes impossible in the abstract to contemplate which contract disputes will be minor in nature and therefore arbitrable. Accordingly, we hold that the decision of whether a dispute is arbitrable (i.e., minor in nature) should be left to the respective parties and the arbitrator(s). By so providing, we would allow a third party to make the initial decision of arbitrability in disputes arising out of and in the contemplation of the collective bargaining agreement.

Further, we see no reason why the dictates of the Illinois Arbitration Act (Ill. Rev. Stat. 1971, ch. 10, par. 101 et seq.) should not apply and govern the resolution of minor disputes. In this way, although the initial determination is left to the arbitrator, the court retains the power to vacate an arbitrator’s award under section 12(e) of the Act if the issue is one that is not arbitrable or if the arbitrator has exceeded his power. See Champaign Education Association, supra, where it was stated:

“ ‘Where there is an agreement to arbitrate and its scope is reasonable in doubt, the issue of arbitrability should be initially determined by the arbitrators, subject to the protective reservations of Section 12 of the Act — under which the court may vacate an award under the varying conditions therein specified.’ ”

We would hope by this method of resolving minor disputes the following benefits, as discussed in 54 Cornell L.R. 129, 135-136, might follow:

“Binding arbitration of grievances, however, has much to commend it. First, the collective bargaining agreement is more meaningful because the confidence of the workers in the equity of the agreement is strengthened when they know that any dispute over the meaning of the contract may be submitted to an impartial third party for decision. Second, it encourages more careful decision making by the government employer. If he knows that his actions may be subjected to the scrutiny of an arbitrator whose decision will be binding, he wiU be less likely to make hasty decisions and more likely to calculate the effect of his order. Third, it would create pressure to settle grievances at lower levels. The natural reluctance of management officials to have their decisions reviewed by outside parties reduces the tendency of upper-level management to uphold unjust decisions made by lower-level management. Fourth, if the parties must bear the cost of arbitration by outside parties, they are likely to attempt to resolve their differences before such expense is incurred.”

II.

The Johnson grievance. Johnson contends that her involuntary transfer from one school to another was in disregard of her contractual seniority rights as provided for in the agreement and therefore her grievance should have been submitted to arbitration.

The collective bargaining agreement provides that on the question of involuntary transfers or reassignments, plaintiff shall determine, among other things, the transferee’s qualifications for the position. The agreement further provides that the administration “shall use” certain guidelines in interpreting a teacher’s qualifications (set forth in footnote 4 of this opinion). Johnson argues that the administration here either failed to consider her seniority or did not accord satisfactory weight to it in interpreting her qualifications. She contends that an arbitrator should be allowed to determine whether compliance was had with the guidelines set forth in the agreement. In this regard, it is noted that although the agreement requires the administration “shall use” the guidelines, it does not inform us as to the manner in which they should be used nor does it indicate the weight to be accorded each guideline.

Thus, it appears that the administration, in interpreting a teacher’s qualifications, makes a determination of the weight to be given- each. Under these circumstances, to allow an arbitrator to review the decision of the administration would permit the substitution of the arbitrator’s judgment as to the relative importance of each guideline in the ultimate decision. This, in effect, would result in the arbitrator determining the teacher’s qualifications and, as has been clearly stated and agreed to by the parties here, both in their briefs and in the agreement, that decision is to be made by the school administration. As stated in Rockford, on page 1094:

“The ultimate determination of ‘qualification’ was not, nor could it be, delegated by the Board to any outside agency including the American Arbitration Association.”

In fact, the collective bargaining agreement here recognizes that plaintiff has certain inherent duties and responsibilities that are reserved to it. Accordingly, we conclude that the right to determine qualifications is one that cannot be delegated and is not, therefore, a proper subject for arbitration.

We.realize that in the earlier portion of this opinion we decided that the initial question of arbitrability should be decided by an arbitrator. We also held that only those items not in contravention of the Code would be subject to arbitration but, because we have held that the determination of qualifications rests with the school administration and is not arbitrable, and since the Johnson grievance involves the question of her qualification, it would serve no useful purpose here to remand this case for a determination of its arbitrability.

III.

The Creighton-Hackel grievance. The Creighton-Hackel grievance involves an alleged violation of the collective bargaining agreement which sought to disengage teachers from performing functions allegedly “clerical in nature.” Specifically, the above grievants complained that they were required to write in the names of their students on monthly attendance cards; a job theretofore done by the school clerk. The dispute was submitted to arbitration with an award in favor of the grievants.

What concerns us here, consistent with the above portions of this opinion, is whether the grievance involved is arbitrable as a “minor” dispute contemplated by the express terms of the contract, or whether arbitration is precluded because the specific grievance is governed by a provision of the School Code (by our definition, therefore, not a “minor” dispute).

Our first analysis must therefore concern itself with the provisions of the School Code cited as applicable by the grievants; sections 18 — 12 and 24 — 18 (Ill. Rev. Stat. 1971, ch. 122, pars. 18 — 12, 24 — 18). Section 24 — 18 provides that teachers “shall keep daily registers # * *. Such registers shall be furnished by the school directors * * This section mandates that teachers are required to keep daily records on forms given to them by their respective administrations. It is our opinion that this statutory section says no more than that, and the question of whether or not the students’ names were to be filled in by the school clerk or by the individual teacher was seemingly not within the contemplation of the drafters of this section. We believe, therefore, that as to this grievance, there is no specific statutory language invalidating its inclusion in the agreement nor governing its resolution. Moreover, we do not construe the statute to provide for the filling in of students’ names on a monthly basis; rather, we believe the statute refers only to the mechanical function of filling in, on a daily basis, the attendance spaces provided on the form. There being no governing statutory authority and the submission to arbitration not being a delegation of the plaintiff’s duties as provided for by statute, the dispute was one, certainly minor in nature, that could have been submitted to arbitration pursuant to a collective bargaining agreement. Since the grievance was one specifically provided for within the agreement, the arbitrator did not exceed his authority in determining the grievance to be arbitrable, nor did he, in our opinion, render an incorrect award.

We conclude that as to the Creighton-Hackel grievance, the grievance was one that was arbitrable pursuant to the provisions of the collective bargaining agreement and that it was a violation by plaintiff of that agreement.

Accordingly, the judgment of the trial court as to the Johnson grievance is affirmed and the judgment as to the Creighton-Hackel grievance is reversed.

Affirmed in part.

Reversed in part.

DRTJCKER and LORENZ, IT-, concur..

        “SECTION 1. Definition: A grievance shall mean a specific grievance in writing.
      (a) That there has been a violation, misinterpretation, or misapplication of any provision of this agreement and/or policy of this School District; or
      (b) That a teacher has been treated unfairly or inequitably by reason of any act or condition which is contrary to established policy or practice governing or affecting teachers.”

        “SECTION 5. Fourth Stage. If the grievance is not resolved satisfactorily to the union within five (5) days of the hearing before the Board (Third Stage), there shall be available a fourth step of impartial arbitration. The union may submit, in writing, a request to enter into such arbitration. The arbitration proceeding shall be conducted by an arbitrator to be selected by the two parties within seven (7) days after said notice is given. If the parties fail to reach agreement on an arbitrator, the selection of the arbitrator will be made in accordance with the rules of the American Arbitration Association."

       Ill. Rev. Stat. 1971, ch. 110, par. 57.

       “ARTICLE IV

        SECTION 2. It is agreed that:
      (b) When involuntary transfer or reassignment is necessary, volunteers from those teachers affected will be transferred or reassigned first. A teacher’s qualification, length of service in School District 111 and personal preference shall be major criteria in determining such transfers or reassignments;
      (c) The administration, in interpreting teacher qualifications, shall use the following guidelines:
      1. Certification;
      2. Area of specialization (including degrees, research, publications, etc.);

        3. Pertinent experience (educational and vocational); and
      4. Teacher’s ability as reflected by the whole of the teacher’s written evaluation in the District.
      see

        SECTION 9. Transfers made because of decreased pupil enrollment in the building shall be based on seniority. If it is necessary to move the teacher out of the school, the teacher with the least building seniority within the classification being reduced shall he the first transferred, and so on * *

        SECTION 4. No teacher shall be assigned duties that are principally clerical in nature, such as * * * the compilation of monthly and yearly attendance records, provided that reasonable notice of clerical assistance requirements is given by the teacher to the Building Principal or his designee.

       Ill. Rev. Stat. 1971, ch. 122, par. 24 — 18:
      “Teacher shall keep daily registers showing the name, age and attendance of each pupil, the day of the week, month and year. Registers shall be in the form prescribed by the Superintendent of Public Instruction.
      Such registers shall be furnished by the school directors, and each teacher shall, at the end of his term of school, return his register to the clerk or secretary of the school board. No teacher shall be paid any part of the school funds unless he has accurately kept and returned such a register.”

        See Derber, Labor-Management Policy For Public Employees in Illinois: The Experience of the Governor’s Commission, 1966-67, 21 Ind. and Lab. Rel. Rev. 541 (1968) ; Clark, Public Employee Labor Legislation: A Study of the Unsuccessful Attempt to Enact a Public Employee Bargaining Statute in Illinois, 20 Lab. L.J. 164 (1969) .

        See Chicago High School Assistant Principals Association v. Board of Education of Chicago, 5 Ill.App.3d 672, 284 N.E.2d 14.

       "Only one significant decision rendered by an Illinois court of appeals, has held that a public employer has the authority, in a non-proprietary area and absent a statute, to engage in private-sector-type collective bargaining * e o " Edwards, The Emerging Duty to Bargain in the Public Sector, 71 Mich. L.Rev. 885, 890 (1973).

       3 Ill.App.3d 1093:
      “It has been held that a board of education does not require legislative authority to enter into a collective bargaining agreement and that such an agreement is not against public policy [Citation.] However, a board may not, through a coUective bargaining agreement or otherwise, delegate to another party those matters of discretion that are vested in the board by statute.”

         The arbitration dealt with in both Rockford and in the instant case is referred to as "grievance” arbitration as opposed to “interest” arbitration. Grievance arbitration involves interpretation or application of laws, agreements or customary practices of the agreement; whereas, disputes as to ‘interests’ involve the question of what shall be the basic terms and conditions of employment. (See Note, Legality and Propriety of Agreements to Arbitrate Major and Minor Disputes in Public Employment, 54 Cor. L.R. 129 (1968); Killingsworth, Grievance Adjudication in Public Employment, 13 Arb. J. 3 (1958).) In the agreement here, the jurisdiction of the arbitrator is limited to grievance arbitration, and in this opinion we are addressing ourselves only to grievance arbitration.

        See WeUington and Winter, Structuring Collective Bargaining in Public Employment, 79 Yale L.J. 805, 834 (1970); Note, Collective Bargaining for Public Employees and the Prevention of Strikes in the Public Sector, 68 Mich. L.R. 2,60, 286 (1969).

        See Ill. Rev. Stat. 1971, ch. 111%, par. 328a; calling for collective bargaining agreements and for the arbitration of disputes between labor unions and the Chicago Transit Authority. See Ill. Rev. Stat. 1971, ch. 24, par. 10 — 3 — 8; providing for arbitration between firemen and municipalities.

         Cf. McCormick v. Burt, 95 Ill. 263; Lindblad v. Board of Education of Normal School District, 221 Ill. 261, 77 N.E. 450; Pearson v. Board of Education, 12 Ill.App. 2d 44, 138 N.E.2d 326.

      “The terms of this agreement shall not apply where inconsistent with constitutional, statutory or other legal provisions.
      e # e
      The Union recognizes that the Board of Education has full authority and1 responsibility under the laws of the State of Illinois for making decisions as; to employment, tenure or discharge of any of its employees. The Union recog-, nizes that in the operation of the schools the Board is guided by the policies,, regulations and criteria for the approval, recognition and accrediting of schools: as promulgated by the Superintendent of Public Instruction of the State of.' Illinois * * * and the laws of the State of Illinois. The Union recognizes: the Board’s right to direct the operation of the schools.”

       The arbitrator finding, in pertinent part:

        “a 9 e the arbitrator concludes that Section 24 — 18 does not require teachers to write pupils’ names on the attendance sheets. The issue of who. should do so is not, therefore, inarbitrable. It is arbitrable.”


source: Caselaw Access Project

author: Mr. JUSTICE STAMOS

license: Public Domain

text:
    Donna Ballard, Plaintiff-Appellee, v. Charles K. Jones, Defendant—( The City of Chicago, Defendant-Appellant.)
    (No. 59083;
    First District (2nd Division)
    June 25, 1974.

      Rehearing denied August 15, 1974.

      Richard L. Curry, Corporation Counsel, of Chicago (Daniel Pascale and Jerome A. Siegan, Assistant Corporation Counsel, of counsel), for appellant.
    Harold A. Liebenson, of Chicago, for appellee.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

This is an action by Donna Ballard against Charles K. Jones and the City of Chicago alleging that their negligent actions either jointly or individually caused injuries she received as a result of an automobile accident. Subsequent to a jury verdict, the Circuit Court entered judgment in favor of defendant Jones and against defendant City of Chicago in the amount of $350,000. The City of Chicago appeals, and, in urging reversal of the judgment, contends that the trial court erred in failing to direct a verdict in its favor, or alternatively, that it is entitled to a new trial based upon certain evidentiary and instructional errors.

Since no question of damages is raised, the foHowing summary is Hmited to evidence on the issue of Hability. On the evening of August 23, 1969, plaintiff, Donna Ballard, accompanied by her husband, Ronald, and four out-of-town relatives and friends, went for a tour of Chicago in the Ballards’ car. At approximately 1 A.M. on August 24, 1969, the BaHard party stopped at a lounge. One hour later, the entire party left the lounge by car and traveled south on Paulina Street attempting to find Diversey Avenue. Ronald was driving. The evening was clear and dry. As Ronald approached the intersection of Diversey and Paulina he slowed down; his highest speed prior to reaching Diversey was between 20 and 25 mph; he had never traveled through this intersection before. Mr. BaHard testified that he did not see the stop sign on the northwest comer of the street, nor did he notice any sign indicating that he was approaching Diversey. When the front of his vehicle was even with the crosswalk, he glanced to his left, and then to his right, for approaching vehicles; he saw none. When he looked to his left again, he saw only the parking lights of a vehicle being driven by Charles Jones in a westerly direction on Diversey. Immediately thereafter, the BaHard car was struck •by the Jones car in the middle of the Paufine-Diversey intersection. As a result of the occurrence, Mrs. Ballard, who was facing the rear of the car at the time of the collision, became a paraplegic.

Diversey is a major east-west street lighted by 800-watt mercury vapor lamps, while Pauline is a north-south side street lighted by 175-watt lamps. There are stop signs to halt traffic on Paulina located on the northwest and southeast corners of the intersection. Buddings are situated on all four comers of the intersection and Paulina is lined by trees on both sides. Plaintiff’s photographic evidence tends to indicate that the stop sign located at the northwest corner of the intersection to halt traffic southbound on Paulina was hidden by fohage from trees located in the parkway between the curb and the sidewalk. The stop sign and the trees were under the control and maintenance of the City of Chicago.

Plaintiff sought recovery grounded on the theory that Mr. Jones was negligent for driving with only his parking lights on, and that the City of Chicago was negligent in that it permitted foliage of a parkway tree to obstruct the stop sign on the northwest comer of Paulina.

Defendant’s initial contention is that the trial court erred in failing to direct a verdict in favor of defendant on the issue of proximate cause. Relying upon the weU-settled proposition that the operator of a vehicle, regardless of the right-of-way, has a duty to maintain a proper lookout for other vehicles (e.g., Homka v. Chicago Transit Authority, 2 Ill.App.3d 334, 276 N.E.2d 351), defendant argues that the following evidence overwhelmingly demonstrates that the sole proximate cause of the collision was the failure of Ronald Ballard to keep a proper lookout. Ronald testified that he was traveling south on Paulina while looking for Diversey Avenue; that although he noticed the intersection and slowed down, he failed to see both the street sign that he was looking for and the stop sign; that he also failed to notice that the street he was approaching was brighter and wider than Paulina, and failed to see the vehicle driven by Jones.

The supreme court, in Pedrick v. Peoria & Eastern R. R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504, set forth the standard that a court must use in considering a motion for a directed verdict:

“In our judgment verdicts ought to be directed * * * only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.”

Viewing the present matter under the Pedrick Rule, we initially note that the entire thrust of defendant’s argument addresses itself to the commissive conduct of a third party while neglecting any comment upon its own omissive conduct. Even assuming that the conduct of Ronald Ballard contributed to the injuries, if the reasonable inferences which might be drawn from the evidence could also support the finding that defendant’s negligence by omission was a contributing proximate cause, it is no defense that the injuries would not have occurred without the concurring active misconduct of another person. (Chmielewski v. Marich, 2 Ill.2d 568, 119 N.E.2d 247; Crowe Name Plate & Manufacturing Co. v. Dammerich, 279 Ill.App. 103.) The question of what is the proximate cause of an injury is ordinarily a question of fact (Ney v. Yellow Cab Co., 2 Ill.2d 74, 117 N.E.2d 74), and in order for a court to say as a matter of law that the omissions of a party constitute a passive condition rather than a contributing proximate cause, there can be no room for any other reasonable inference from the facts. Cohn v. Petroleum Heat & Power Co., 44 Ill.App.2d 23, 194 N.E.2d 29.

Turning from these general principles to the present case, the record reveals that Ronald Ballard, upon approaching the intersection, looked to his right (on the northwest corner) for a sign identifying the intersecting street; he saw neither a street sign nor a stop sign, but only trees. Plaintiff’s photographs indicate that the stop sign located on the northwest corner was obscured by the foliage of trees located on the parkway. Considering this evidence, it is not unreasonable to infer that had the stop sign been visible, the collision would not have occurred. Accordingly, it was proper for the trial court to deny a directed verdict on the issue of proximate cause.

Defendant also contends that the trial court erred in failing to direct a verdict in favor of defendant on the issue of contributory negligence. Defendant argues that at the time of the occurrence plaintiff was facing the rear seat of the automobile talking to her relatives, and therefore, as a matter of law, failed to exercise care for her own safety. Like proximate cause, the question of contributory negligence ordinarily and preeminently presents a question of fact. (Lasko v. Meier, 394 Ill. 71, 67 N.E.2d 162.) A passenger riding in an automobile is only required to exercise such care as the exigencies of the situation require. (Hatcher v. New York Central R. R. Co., 17 Ill.2d 587, 162 N.E.2d 362.) In the absence of circumstances which would ordinarily cause a reasonable man to act, a passenger is not necessarily contributorily negligent because of inaction or failure to give advice. (Zonk v. Chicago, Rock Island & Pacific R. R. Co., 17 Ill.2d 473, 161 N.E.2d 848; Goldstein v. Hertz Corp., 16 Ill. App.3d 89, 305 N.E.2d 617.) If the circumstances are such that a passenger is not required to act, mere inattentiveness need not preclude recovery. Gillan v. Chicago North Shore & Milwaukee Ry. Co., 1 Ill.App.2d 466, 117 N.E.2d 833.

Here there is evidence that the Ballard vehicle was being driven at a normal rate of speed, the streets were dry, and the night was clear. There is nothing in the record which demonstrates that either the conditions of travel or the manner in which the vehicle was being driven were such that the inattentiveness of plaintiff constituted contributory negligence as a matter of law. Under the rule of Pedrick, the question was properly presented to the jury.

It is next contended that the court erred in refusing to allow defendant to inquire if Ronald Ballard had consumed intoxicants prior to the accident. On the cross-examination of Ronald Ballard, defense counsel attempted to elicit whether the witness had any alcoholic beverages to drink at the lounge the Ballard party had previously visited. Counsel for plaintiff objected. The trial judge stated that he would sustain plaintiff’s objection unless defense counsel could demonstrate the relevancy of the question. As a side-bar conference defense counsel, in arguing that the reason the witness did not see the stop sign might have been due to his use of alcohol, stated: “It may have been alcohol, I don’t know. I don’t know what he is going to say but I am going to ask him.” The trial judge responded by stating that he would not allow defense counsel to go on a fishing expedition in the absence of a showing of relevancy. No offer of proof was made.

Again, during defendant’s case, Police Officer Hugh Versteegh stated: “I asked him (Ronald Ballard) if he had anything to drink of an alcoholic nature.” Objection was made, and at the side-bar conference the officer stated that although he had smelled alcohol on Mr. Ballard’s breath, he could not say that he was under the influence of alcohol. Because the officer could form no opinion as to Ballard’s sobriety, the objection was sustained and the jury was instructed to disregard the statement. On appeal, defendant argues that it was prevented from introducing evidence that had a direct bearing on the credibility of Ronald Ballard’s testimony.

Evidence of intoxication is admissible in a personal injury action as tending to show the negligence of one of the parties. (South Chicago City Ry. Co. v. Dufresne, 200 Ill. 456, 65 N.E. 1075.) We think it likewise admissible when, as in the present case, it tends to show that the sole proximate cause of the injuries was the conduct of a third party. However, drinking, standing alone, cannot be equated with intoxication, nor can the use of alcoholic liquor, standing alone, characterize a person as intoxicated. (Shore v. Turman, 63 Ill.App.2d 315, 210 N.E.2d 232.) Accordingly, questions cannot be asked which intimate to the jury that a party was intoxicated at the time of the accident unless there is supporting evidence (Clarke v. Rochford, 79 Ill.App.2d 336, 224 N.E.2d 679.); in the absence of supporting evidence, testimony concerning the drinking of intoxicants should be stricken (Warp v. Whitmore, 123 Ill.App.2d 157, 260 N.E.2d 45.), and under certain circumstances, may constitute reversible error notwithstanding a sustained objection. Miller v. Chicago Transit Authority, 3 Ill.App.2d 223, 121 N.E.2d 348.

In the present case, the ruling of the trial judge was imminently proper. In his attempt to elicit evidence of intoxication from Ronald Ballard, defense counsel could offer no supporting evidence, nor did he make an offer of proof. In the second instance, although an offer of proof was made, it clearly demonstrated the officer’s testimony would only unfairly intimate the intoxication of Ronald Ballard.

The defendant next assigns as error the trial court’s refusal of the following instruction based on IPI 5.01:

“If a party to this case has failed to produce a witness within her power to produce, you may infer that the testimony of the witness would be adverse to that party if you believe each of the following elements:
1. The witness was under the control of the party and could have been produced by the exercise of reasonable diligence.
2. The witness was not equally available to an adverse party.
3. A reasonably prudent person under the same or similar circumstances would have produced the witness if she believed the testimony would be favorable to her.
4. No reasonable excuse for the failure has been shown.”

Defendant argues that the absence, at trial, of three of the passengers in the Ballard vehicle, when coupled with an inadequate explanation of their absence, provided a sufficient basis for giving the instruction. The record reveals that of the six occupants of the Ballard car, three testified; the other three were out-of-state residents, although two were related to the Baliards. During plaintiff’s opening statement, counsel stated that three of the passengers would not be present to testify; two could not get off work, and one had suffered a nervous breakdown. However, at trial, the testimony only indicated that the- three out-of-state witnesses were unavailable.

Under the rule of the tendered instruction, a party is not bound to introduce every witness who might know something about the matter at issue at the risk of being burdened with an unfavorable inference because of his failure to do so. (See People v. Moore, 52 Ill.App.2d 27, 201 N.E.2d 619; 20 Am. Jur. Evidence sec. 187.) When there are multiple occurrence witnesses, (not all of whom testify, the granting of this instruction should be within the sound discretion of the trial court. See Hildebrand v. Baltimore & Ohio R. R. Co., 41 Ill.App.2d 217, 190 N.E.2d 630.

Three of the six passengers of the Ballard vehicle testified to the occurrence, in addition to an independent occurrence witness who was brought in, at plaintiffs expense, from California. Therefore, the testimony of both plaintiff and her husband was corroborated. Furthermore, although no competent explanation was given for the unavailability of the remaining three, they were out-of-state residents. Given these considerations, we think the trial court did not abuse its discretion in refusing the instruction.

It is lastly contended that the court erroneously allowed into evidence the opinion of a witness on an ultimate issue in the case. Officer Versteegh testified for defendant that he did not observe anything obstructing the stop sign on the northwest corner of Diversey and Paulina. He further testified that he had never made an examination of any foliage in the parkway of Diversey and Paulina to determine its relative position with respect to the stop sign. During cross-examination, plaintiff was permitted, over objection, to read the following statement, signed by the officer, for purposes of impeachment: “The BaUard car going south on Paulina, the car, the driver could not see stop sign because of foliage and darkness.” On redirect examination, in an endeavor to rehabilitate the witness, it was adduced that the statement had been prepared by plaintiffs investigator and that the witness had signed it, but had done so only on the basis of photographs of the intersection which had been shown to him approximately a month after the occurrence. He reiterated that he had not personally examined the parkway foliage at Diversey and Paulina. Defense counsel renewed his objection and moved for a mistrial. The trial court held the statement to be proper impeachment.

Defendant initially argues that the statement was not proper impeachment in that it did not contradict the testimony that the officer had never personally made an examination of the foliage in the parkway. Moreover, defendant asserts, assuming the presence of an inconsistency, it is error to admit statements of opinion on the ultimate issue in a case even though introduced solely for impeachment purposes. Defendant refers us to Allen v. Yancy, 57 Ill.App.2d 50, 60, 206 N.E.2d 452, wherein the court stated:

“Our courts have held that admission of this kind of testimony is error. In order to preserve the independence of the jury, it has been held that a witness may not give his opinion on an ultimate issue in the case. Wawryszyn v. Illinois Cent. R. Co., 10 Ill.App.2d 394, 135 N.E.2d 154; Gillette v. Chicago, 396 Ill. 619, 72 N.E.2d 326. * * *
These rules apply to the admissibility of prior statements in an attempted impeachment. It is error to admit statements of opinion on the ultimate issue in a case whether they are introduced on cross-examination of the impeached witness (Central R. Co. v. Allmon, 147 Ill. 471, 35 N.E. 725) or whether they are introduced on examination of the impeaching witness (Northern Milling Co. v. Mackey, 99 Ill.App. 57, affd 210 Ill. 115, 71 N.E. 448).”

We agree that the previous statement of Officer Versteegh not only failed to impeach his testimony, but also improperly allowed into evidence an opinion of the witness. Whether, as defendant urges, the previous statement may be characterized as an opinion on an ultimate issue, or is merely improper opinion evidence, is not singularly decisive; it was error in either case and warrants, in our opinion, reversal of the judgment. In so holding, we are not unmindful that the object of review by this court is not to determine whether the record is completely free of error, but to ascertain whether upon the trial there has been such error as might prejudice the rights of a party. Nelson v. Union Wire Rope Corp., 31 Ill.2d 69, 199 N.E.2d 769.

It was incumbent upon plaintiff to prove that defendant breached a duty owed to plaintiff, and under the allegations of the complaint, plaintiff had the burden to establish that the stop sign was obscure by foliage from one driving in a reasonable manner. At trial, the issue of whether the stop sign was obscured by foliage from the view of Ronald Ballard was crucial. As earlier noted, defendant disputed the weight to be given plaintiffs photographic evidence of the intersection because the photographs were taken from a point far higher than that of one seated in an automobile, thus resulting in a distortion of perspective. Defendant presented an expert witness on this point, and also submitted photographs taken at a lower elevation which depicted the stop sign as being discernible.

In view of the contradictory photographic evidence, the previous statement of Officer Versteegh affirmatively interpreted the causal relationship between the conduct of Ronald Ballard and the visibility of the stop sign. Its effect was to establish that the City of Chicago breached a duty owed to Donna Ballard.

The prejudicial effect of the improper impeachment, substantial in itself, was compounded by the fact that the statement of opinion was made by a police officer who was both an employee of defendant and one of its witnesses. During closing argument, counsel for plaintiff was allowed to emphasize that point:

“The officer at the time we took it, his statement, didn’t know the City of Chicago was a party, so he said it was dark there and the foliage obstructed the stop sign. A month after the accident. DEFENSE COUNSEL: Objection, Your Honor.
THE COURT: Overruled, proceed.
At the trial he tried to change his story because then his employer was a party to the suit.”

In view of the foregoing, we cannot say that the error was harmless. Accordingly, the judgment is reversed and remanded for a new trial.

Reversed and remanded.

HAYES, P. J., and DOWNING, J., concur.

       The weight to be given plaintiffs photographs was contested. Defendant had an expert testify that the perspective of the picture was taken from a point higher than the position of one sitting in an automobile. With a change of perspective in height or angle, the relationship of the tree branches to the stop sign is necessarily altered. Defendant introduced into evidence photographs which depicted the visibility of the stop sign,

       Generally, evidence is admissible to demonstrate the defects of the witness’s sensory or mental capacity. However, we recognize that at the present time only the following cases support evidence of drinking in the absence of further evidence of intoxication: Maland v. Tesdall, 232 Iowa 959, 5 N.W.2d 327; Labrecque v. Donham, 236 Mass. 10, 127 N.E. 537; Sanders v. Armour & Co. (Mo. App.), 292 S.W. 443; Goettelman v. Stoen (Iowa), 182 N.W.2d 415.


author: Mr. PRESIDING JUSTICE HAYES

text:
    Jeanne Meggison, Plaintiff-Appellee, v. Arthur R. Stevens, Defendant—(Helen M. Stevens, Supplemental Defendant-Appellant.)
    (No. 58185;
    First District (2nd Division)
    June 28, 1974.

      Rehearing denied August 7, 1974.

      Alvin W. Block, of Block, Levy & Becker, of Chicago, for appellant.
    Wolf and Axelrod, of Chicago (J. Henry Wolf, Carl Cipolla, and Philip J. McGuire, of counsel), for appellee.
   Mr. PRESIDING JUSTICE HAYES

delivered the opinion of the court:

Between January, 1959, and April, 1962, Arthur Stevens signed and delivered three confession promissory notes totalling $11,612 to Jeanne Meggison. Each note represented his obligation to repay a loan of money made to him by Jeanne Meggison. Arthur’s wife, Helen, was not a party either to the loans or to the notes.

During this period of time Arthur Stevens and his wife, Helen, held record legal title to their home in fee simple as joint tenants with right of survivorship, subject to a mortgage. Testimony of Arthur and of Helen, given in citation examinations in 1972 (which testimony will hereinafter be related in more detail), established that, in September of 1964, Arthur and Helen gratuitously conveyed their respective interests in their home to the American National Bank as trustee of a certain land trust No. 20709, of which Helen was the sole beneficiary. At the time of this transfer, the three notes made by Arthur to Jeanne Meggison were due and payable, but none had been reduced to judgment.

On 12 May 1965, judgment by confession was entered in favor of Jeanne Meggison against Arthur Stevens on the three notes. On 16 February 1966, the judgment by confession was opened and the matter was set for trial. On 15 June 1970, after a jury trial, judgment was entered in favor of plaintiff against defendant in the sum of $15,000 plus costs. No appeal was taken from that judgment.

In February, 1972, separate citations to discover assets, pursuant to Supreme Court Rule 277 (Ill. Rev. Stat. 1971, ch. 110A, par. 277), were issued against Helen and Arthur Stevens. Both Arthur and Helen appeared and were examined on different days; but the full transcript of their testimony has not been included in the record before us. Shortly thereafter, plaintiff filed a verified petition for relief against Arthur and Helen, to which petition three pages of the transcripts of the citation proceedings were attached, being excerpts from the examinations of Arthur and Helen. Plaintiff’s petition alleged that the conveyance by Arthur to American National Bank was a fraudulent transfer, the fraud being evident from the testimony of Helen herself as set forth in the attached pages of transcript. In her prayer for relief, plaintiff asked that the conveyance by Arthur to the American National Bank be set aside and that Helen be ordered to convey 50% of her right, title, and interest in the beneficial interest in the land trust to the Sheriff of Cook County and that he be directed to levy upon and sell the property in satisfaction of plaintiff’s judgment claim. Defendants filed a verified answer simply denying that the conveyance was fraudulent and further alleging that at the time of the conveyance Arthur was not insolvent and that the conveyance did not cause him to become insolvent.

As noted, the three pages of transcript attached to the petition are excerpts from the testimony of Arthur and of Helen in their respective citation examinations. Both testified that Arthur had twice renegotiated the mortgage on their home in order to procure a new and larger loan from a new lender for the purpose of paying debts which Arthur had incurred in various unsuccessful business ventures of his. Helen, who was and had been contributing to the mortgage payments from her salary, reluctantly joined in the renegotiations. But the second renegotiation had placed a severe strain on the marital tie, because Helen could not see why she should be paying for their home “twice over” simply for the benefit of Arthur’s creditors; and, despite Arthur’s protestations, she predicted that Arthur would do the same tiring a third time. To resolve the marital discord, Arthur offered to disable himself from doing the same thing a third time by transferring his interest to her. On the advice of Arthur’s attorney, this objective was achieved in September of 1964 by having Arthur and Helen convey their respective interests in the residence property to the American National Bank as trustee of Land Trust No. 20709, of which Helen was the sole beneficiary. No pecuniary consideration was paid by Helen to Arthur for this transfer.

In response to further examination by counsel for plaintiff, Helen testified that her concern had been over Arthur’s existing and future creditors’ seizing Arthur’s fractional interest in the joint tenancy, thereby reducing her fractional interest below the value of her contributions to the mortgage payments, which she had made and would make.

At the hearing on the petition and answer, supported by the full transcripts of the citation examinations, the trial judge was about to enter his findings and order, when defense counsel objected that he had not as yet had any opportunity to present his defense, and he asked the court for leave to put a witness for Helen on the stand. The witness turned out to be Arthur. The court took the position that counsel had participated in the citation examination of Arthur, where he had had full opportunity further to examine Arthur to obtain his testimony for the defense, but counsel had elected not to do so. Counsel for the Stevens’ protested that it was not the practice for a third-party citation examinee to put in at the citation examination his or her defense to the subsequent petition for relief which might be filed by the judgment creditor on the basis of the citation examination. Counsel pointed out that, under the applicable statutes (Ill. Rev. Stat. 1971, ch. 110, par. 73(5)), as supplemented by Supreme Court Rule 277(e) (Ill. Rev. Stat. 1971, ch. 110A, par. 277(e)); and sections 10 and 11 of the act regarding garnishment (Ill. Rev. Stat. 1971, ch. 62, pars. 42, 43), a third party whose alleged property rights would be adversely affected by the relief sought in this subsequent petition was entitled to a trial on the issues raised by the petition and answer. The court appears to have taken the position that Arthur had testified fully at the citation examination as to what his intent had been in making the transfer of his interest in the home, and could have nothing to add to that testimony. In addition, the judge referred to his impression that the matter had been submitted to him by the parties for his disposition on the pleadings and the citation examinations, which he had read and reread. Defense counsel denied any such intent or agreement on his part.

After this extended colloquy, the trial judge denied defense counsel’s request to put Arthur on the stand to testify in defense of Helen’s alleged property rights and proceeded to announce his findings and order. He found that the conveyance by Arthur to the American National Bank was not real but was in fact a fraudulent transfer made with the intention of defrauding plaintiff as a creditor of Arthur Stevens. The judge then ordered Helen to execute an assignment of 50 percent of her right, title, and interest in the beneficial interest in tire land trust to the' Sheriff of Cook County. From that order, Helen Stevens appeals.

The gist of Helen’s position is that, when the trial judge refused to permit Arthur to testify, she was denied the opportunity to establish her defense to plaintiffs petition for relief, and that the evidence before the trial judge (namely, the full transcripts of the citation examinations) was insufficient to support the finding that the conveyance by Arthur was fraudulent.

Since Helen (hereinafter appellant) has not seen fit to provide us with the full transcripts of the citation examinations, we are not in a position to determine the validity of her second contention on appeal.

But we think her first contention must be sustained. The statutes and rules which govern supplementary proceedings all contemplate that a third party claiming an interest in the property involved must be given a “trial # * * as in other civil cases”; hence, must be given a full opportunity to present and maintain his or her claim. (See Ill. Rev. Stat. 1971, ch. 110, par. 73(5); ch. U0A, par. 277(e); ch. 62, pars. 42, 43.) As a third-party citation respondent and a defendant in plaintiff’s subsequent petition for relief, appellant is in the position of a garnishee asserting her own property right in the subject premises.

The record in this case shows that appellant was not afforded such an opportunity despite her request for it. Her citation examination does not itself constitute such an opportunity since such examination is simply a preliminary discovery proceeding which might elicit facts which could serve as the basis for a subsequent petition for relief, which, as to the third party, would constitute the initial pleading in the nature of a complaint. Appellant filed an answer which put the cause at issue.

While the parties by agreement may stipulate the pleadings, citation examinations and evidence which may be considered by the court in resolving the issues before the court, the record in this case contains no evidence of any such agreement by the parties or their counsel, and trial counsel for appellant denied any such agreement and expressly asked to put on a witness for the appellant. We think it was error to refuse to permit him to do so, because such refusal denied appellant as a third party a “trial # # ” as in other civil cases”. See Roy Strom Excavating & Grading Co. v. National Bank (1972), 4 Ill.App.3d 561, 281 N.E.2d 427.

For the foregoing reasons, the judgment order of 27 July 1972 is reversed and the cause is remanded for such further proceedings as are not inconsistent with this opinion.

Judgment reversed and remanded.

STAMOS and DOWNING, JJ., concur.


text:
    Liberty Mutual Insurance Company, as Subrogee of Charles Machine Works, Inc., Plaintiff-Appellee, v. Williams Machine & Tool Co., Defendant-Appellant.
    (No. 57887;
    First District (5th Division)
    June 7, 1974.

      Modified upon denial of rehearing September 6, 1974.

      Howard & French, of Chicago (Richard G. French and Stuart N. Lit-win, of counsel), for appellant.
    Gerard E. Grashorn, of Chicago (Edward J. Wendrow, Frank L. Butler, and Winston & Strawn, of counsel), for appellee.
   Mr. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court as modified upon denial of petition for rehearing:

Defendant appeals from a judgment on a verdict for damages of $69,800 entered in plaintiff’s favor. Plaintiff, as subrogee for its insured, Charles Machine Works, Inc. (Charles), had sued defendant, the manufacturer of a hydraulic pump which was a component part of a work platform manufactured by Charles, for monies paid in settlement as the result of an action brought by American Glass Co. and six of its employees for injuries sustained while using the work platform.

Charles manufactures a hydraulic work platform marketed under the name of a “Slcywitch.” This platform elevates workmen and material to heights of up to 24 feet. Lifting is accomplished by an electric motor which powers two cylinders with piston rods driven by the hydraulic pump. The lifting device contains two safety features designed to prevent the platform from lifting when overloaded or blocked by an obstruction. The first of these safety features is the electric motor which powers the hydraulic pump and it "engages” at the beginning of the lifting process when the weight load capacity of the particular model is exceeded. Should there be excess weight, the motor "cuts out”, shutting off. power to the hydraulic pump and thus preventing the elevation of the platform.

The second safety feature is the defendant’s hydraulic pump unit which becomes operative in the event the platform, once it begins its ascent, becomes overloaded or encounters an obstruction or impediment. The hydraulic pump contains a relief valve, which is preset to respond to the amount of pressure introduced into the system, and when the amount of hydraulic pressure needed to sustain the lifting movement exceeds the setting on the relief valve, the valve activates and releases oil into a reservoir, so that it no longer flows into the cylinders. This release relieves the pressure on the piston rods and causes the platform to cease elevating.

In January, 1961, Charles purchased eight hydraulic pump units from the defendant, all of which were to have the relief valve preset at 2000 pounds per square inch (“psi”), thereby providing for the relief valve to engage whenever the amount of pressure in the hydraulic system exceeded 2000 psi. The record indicates that defendant was familiar with the Skywitch and the nature of its normal uses.

Defendant’s pump was installed by Charles in the Skywitch involved herein. The subject Skywitch had a lifting capacity of 2000 pounds, was 21 feet in length, elevated to a height of 24 feet, was 5 feet wide, weighed approximately 6000 pounds and stood 6 feet high in its lowered position. It was equipped with removable guardrails which fitted into sockets on the side of the work platform, four leveling jacks and two outriggers used for leveling and stabilizing the unit, and was mounted on four rubber tires.

Charles did not perform any tests on the hydraulic pump purchased from defendant, but did test the Skywitch after assembly. The record reveals that Charles, by its foreman, loaded the Skywitch up to its rated capacity (2000 pounds), raised and lowered it two or three times and stopped it at intermediate positions.

In February, 1961, the subject Skywitch was delivered to Murphy’s Contractors Equipment (Murphy), Charles’ distributor, who in turn sold the Skywitch to the American Glass Co. (American). Upon receipt from Charles, Frank Murphy, president of Murphy, ran the platform up and down and delivered the Skywitch to American on the following day.

American purchased the Skywitch to use in the installation of glass at two terminal buildings at O’Hare Airport. American intended to use the Skywitch to lift their workmen and materials alongside the exterior portions of the terminal. Upon receipt of the Skywitch, American placed an aluminum scaffold, which consisted of three sections and weighed approximately 500 pounds, on top of the work platform. In addition to the scaffold, American placed eight to ten men on the platform and raised and lowered the platform approximately four times. According to the testimony of American’s engineer, the unit worked satisfactorily. Prior to this testing, American’s engineer discussed the intended use of the Skywitch with, among others, the president of Charles and Frank Murphy and decided to utilize the scaffold on the Skywitch only after receiving their assurances that this plan was feasible. Additionally, there was uncontradicted opinion testimony by the president of Charles that, in the absence of additional base support, the risk of the Skywitch toppling over increased in proportion to the amount of additional weight added to it.

In March, 1961, American transported the Skywitch to the job site at O’Hare Airport and reassembled the scaffolding on the work platform of the Skywitch. The Skywitch was used without incident for 3 days. On the fourth day of its use the Skywitch collapsed, injuring the workmen on it. The following testimony was adduced with respect to that accident: The Skywitch was placed on wooden planks, approximately 2 to 6 inches from the building as measured by the second floor which, because of the extension of the second floor ledge, was 4 to 5 feet away from the base of the building. The outriggers were apparently placed down, although Charles’ president testified that when he observed the Skywitch the following day, the outriggers were down on only one side. Six workers boarded the scaffold while the Skywitch was fully retracted and, in addition to the weight of the scaffold and these workers, two pieces of glass, weighing approximately 100 pounds, were added. This brought the total weight on the Skywitch to approximately 1750 pounds, well within the rated weight capacity of the Skywitch (2000 pounds). The motor was toned on and the platform, with scaffold, workers and glass, began to ascend. When it reached halfway to the second floor, it stopped and remained motionless for 5 minutes, apparently because of an electrical problem. Thereafter, the platform continued its climb until it reached within a foot of the working level and then suddenly collapsed in accordion-like fashion injuring the workmen.

Charles’ president visited the site on the following day and found the Skywitch covered with a tarpaulin. He testified that he observed the two cylinder rods which extend the platform were bent in a “U” shape and also that the top deck of the platform was “deformed.” In addition, he found a small aluminum shaving or chip on the Skywitch, and he then noticed that an aluminum column of the building directly above the left corner of the Skywitch had a 6- or 7-inch gouge in it about 20 feet above ground level. The gouge was deeper at its top than at the bottom. He concluded that the gouge was made by the Skywitch while it ascended. Subsequent testing revealed that the aluminum chip found by Charles’ president could have come from the gouged column and that the paint particles found on the chip matched the paint on the Skywitch.

The Skywitch was transported from O’Hare Airport to American’s parking lot, where it was once again covered with a tarpaulin. In May, 1961, the Skywitch was examined in the parking lot by representatives of the parties involved in a lawsuit arising out of the accident. This group included three engineers, a representative of American, and the president of Charles. Their trial testimony indicated that the Skywitch was in the same condition it had been in on the day following the accident. At this examination, the bent piston rods were removed and various measurements and observations were made with respect to them, as well as the rest of the Skywitch.

The Skywitch remained covered in American’s lot and was next examined in January, 1966. Testimony indicated that the electric motor and hydraulic pump appeared to be in the same condition as when last observed in 1961. After testing the cylinder and piston rods, other tests were run on a similar Skywitch unit. The purpose of these other tests were said to be threefold: first, to perform a stress analysis of the Sky-witch; second, to test the Skywitch with an overload; and third, to duplicate the 1961 accident. The stress analysis test consisted of running the Skywitch under different loading conditions and measuring the amount of stress present in the piston rods. The overload test was done by loading the platform with 3000 pounds, 1000 pounds over its rated capacity. When the platform began to rise, the motor cut out and would not lift the load.

In an effort to duplicate the 1961 accident, a similar Skywitch was loaded eccentrically with 2000 pounds (the weight on the platform being distributed unequally) and one corner of the platform being restrained so that it could not raise over 16 feet. When the platform reached the 16 foot mark and could go no further, the hydraulic pressure reached 2200 psi. The relief valve within the pump then began to operate so that the hypdraulic pressure remained the same, and the Skywitch remained stationary, indicating that the properly set relief valve operated to minimize the amount of pressure transmitted to the cylinder and piston rods.

After this test, the experts went to the American yard to test whether the hydraulic system on the subject Skywitch would relieve the pressure at 2000 psi, the presetting requested by plaintiff. The experts testified that to their knowledge the hydraulic pump was in substantially the same condition as when they last saw it in 1961. They then tested the electric motor and pump with a pressure gauge and found the readings went as high as 4300 psi. Following this, the relief valve was removed from the pump, and the experts noted that the seal placed on the valve at the defendant’s factory was unbroken. Further, verification tests were run on the pump and the relief valve by the use of an accumulator and these tests showed that the relief valve did not operate when the pressure reached as high as 3600 psi. One of the testing experts testified that in his opinion the hydraulic relief valve was not set to limit the pressure at 2000 psi. Moreover, at trial, one of the testing experts in response to a hypothetical question, opined that the collapse of the Sky witch was caused by its engaging the aluminum column of the terminal building during the ascendency of the Sky witch which, in conjunction with the failure of the relief valve to minimize the excess hydraulic pressure (over 2000 psi) generated as the result of meeting the column, caused the bending of the piston rods. He further testified that the piston rods would not have failed with a pressure of only 2000 psi introduced into the system.

After the last series of tests, plaintiff tendered and defendant refused the defense of the pending action against plaintiff’s insured. Eventually, plaintiff settled the suit of American and the injured workmen for $69,-800 and thereafter filed this action seeking indemnity. The complaint was premised on the alternative theories of breach of warranty, strict liability and negligence. At the close of plaintiff’s case and after a denial of defendant’s motion for a directed verdict, the case was submitted to the jury, which returned a verdict for the plaintiff and awarded damages in the amount of $69,800.

Thereafter, defendant filed a post-trial motion seeking either a judgment notwithstanding the verdict or to set aside the verdict and judgment, or a new trial. After the denial of the post-trial motion, the instant appeal was perfected.

OPINION

I.

Defendant first contends that the court erred in refusing to permit it to prove the number of hydraulic pumps which were manufactured and sold by it allegedly without complaint or defect. In the first instance, we note that there was apparently no structural or mechanical defect in either the hydraulic pump or the relief valve, and that the failure here involved only the setting or non-setting of the relief valve. Defendant argues that its defense rested in part on proving that the relief valve was not defective when it left the defendant’s control and, in order to substantiate this proposition, it was essential to introduce evidence indicating that defendant had manufactured and sold numerous pumps without incident. On this point counsel for defendant, in a colloquy with the judge and out of the presence of the jury, requested that he be allowed to introduce evidence indicating that defendant received no complaints concerning the 360,000 pumps it had manufactured. The court sustained plaintiff’s objection to the introduction of this evidence and, although it expressed its willingness to allow such testimony concerning the pumps that defendant sold to Charles, none was offered by defendant. We think that, in the absence of any proffered evidence or offer of proof on this point raised only in a discussion with the court, defendant cannot now assign error for this omission. As stated in Hagen v. Bennigsen, 10 Ill.App.2d 356, 135 N.E.2d 128, on pages 361-362:

“There could be no refusal to admit that which has not been offered, and counsel cannot by engaging in mere conversation with the court, even though it may relate to procedure, or by merely stating what he desired to do, get a ruling by the court upon which he can predicate error.”

Secondly, the theory propounded by plaintiff as the focal point for its indemnity action was the failure of the relief valve to operate at 2000 psi, and therefore the possibility of testimony of no complaints concerning 360,000 other hydraulic pumps is not probative to the issue of whether the relief valve in question was set properly. Further, the hydraulic pump and the relief valve in question should have been operative up to pressures of 2000 psi, with the relief valve activating only when the pressure exceeded 2000 psi. Thus, the performance of 360,000 other pumps, absent proper foundation, as was the case here, would be inadmissible for any purpose. Parenthetically, we note that such testimony, even with proper foundation, would be admissible only on the question of defendant’s negligence, which is not an issue in the strict liability or breach of warranty theories of recovery. For the reasons stated, we do not find the court’s ruling on defendant’s suggested introduction of evidence to be reversible error.

II.

Defendant next contends that the court erred in permitting plaintiffs experts to testify as to the results of their tests on the hydraulic pump and relief valve some 5 years after the occurrence. Defendant asserts that since the component parts were exposed to the elements for 5 years, the foundation laid for the introduction of the expert testimony was insufficient in that it was not established that the pump and relief valve were in the same condition as when the accident occurred. (Jines v. Greyhound Corp., 33 Ill.2d 83, 210 N.E.2d 562; Marshall v. First American National Bank, 91 Ill.App.2d 47, 233 N.E.2d 430.) Defendant further argues that the inspection following the accident did not include a testing of the hydraulic pump and the relief valve and, therefore, the experts should have been precluded from testifying either as to the condition of these parts when the accident occurred or that their condition remained unchanged for 5 years.

The record reveals that Americans engineer testified that the hydraulic pump was visibly in the same condition on the date of the initial testing of the Skywitch as when the accident occurred. In addition, Charles’ president testified that the pump was in the same condition in 1966 as when he observed it on the day following the accident. Of greater importance is the fact, as stated by defendant in its brief, that “the pump unit was not removed by them [experts] on that date [of the initial inspection in 1961] nor was its housing dismantled to allow a more intimate examination of the relief valve contained within.” (Emphasis added.) Therefore, it appears that up to the time of the 1966 examination, the relief valve remained encased in its original housing, immersed in its original oil supply, and untested. Moreover, and also of considerable significance, since the issue at trial was the condition of the relief valve setting, is the fact that the relief valve at the time of the 1966 test was under an unbroken seal originally placed there by defendant. The importance of the relief valve seal is indicated by certain documents of defendant offered at trial by plaintiff. One of these was a letter to plaintiff in which the following statement was made by defendant: “[T]he relief seal sleeve is to protect the relief setting of the O.E.M. [original equipment manufacturer] so that it can be detected if the relief setting has been tampered with.” Another was a brochure of defendant which contained the following: “O.E.M. products are protected by relief seal sleeve and prevents any tampering with relief setting without breaking the seal.”

There is no evidence in the record which would indicate that a lapse of time would adversely affect the setting on an encased and sealed relief valve. On appeal, however, defendant hypothesizes, without the benefit of any evidence, that a lapse of time and exposure to climatic conditions would create a situation changing or modifying the condition of the relief valve. In the absence of any proof on this matter, we cannot accept defendant’s proposition. The fact that the seal remained unbroken for the period in question we believe should be a sufficient indication that the relief valve remained in the same condition as when it left the defendant’s control. Were this not the case, then the effect of defendant’s argument would be that the setting on a relief valve could be changed as the result of climatic conditions which might be an indication that its safety feature was lacking in reliability.

At trial, defendant did not introduce evidence concerning other reasons for the Skywitch’s collapse and, in fact, admits “that the relief valve is the component whose condition is really in question here.” We believe, therefore, plaintiff has laid a sufficient foundation for the introduction of its expert testimony.

We are also of the opinion that where the nature of the defect and the surrounding circumstances are such as to allow a reasonable inference that the defect subsequently established existed at the time of the accident, such evidence is admissible. (Gass v. Carducci, 37 Ill.App.2d 181, 190, 185 N.E.2d 285.) The court in Gass, distinguishing the same cases cited by defendant here, reasoned:

“Unlike the cotter pin in tire Rotche case or the plug in the Harris Furniture Company case, the spring here in question was embedded in the interior workings of an automobile door, not exposed so as to permit of casual tampering.”

Accordingly, where no evidence is offered to disprove the relief valve’s condition was as shown by plaintiff and, in light of the relief valve being encased and its seal unbroken and, finally, because there is no testimony indicating that 5 years of outdoor exposure would cause the valve setting to change, we cannot accept defendant’s argument that the admission of plaintiff’s expert testimony was improper.

III.

Defendant next argues that the evidence does not support an inference that the hydraulic pump unit was defective at the time it left defendant’s control. We believe, however, that there was sufficient evidence introduced with respect to the setting on the relief valve to support the plaintiff’s theory for the collapse and that the jury could reasonably infer that the relief valve was not properly set at the defendant’s factory. See McKasson v. Zimmer Manufacturing Co., 12 Ill.App.3d 429, 435, 299 N.E.2d 38, where it was stated:

“Since there was sufficient evidence to substantiate the presence of defects at the time the rod was analyzed and since evidence also supported the conclusion that defects contribute to fatigue failure, the jury could infer that the defects were present at the time of manufacture and that, in the instant case, the failure occurred as a direct result.”

Further, defendant argues that the tests conducted on the Skywitch and its use for 2 days prior to the accident revealed no deficiency in the relief valve. We note, however, that none of the tests or the prior use of the Skywitch necessitated the operation of the relief valve inasmuch as the pressure on the platform on those occasions never exceeded 2000 psi. We thus conclude that where there is sufficient evidence based upon the testimony of several witnesses to substantiate the asserted cause of the collapse, a jury question is presented. It is only necessary that the conclusion arrived at by the jury be based on an inference that is reasonable under the facts, and a verdict is not to be set aside because the jury could have drawn different inferences or because we, as judges, might feel that other conclusions would be more reasonable. Spotz v. Up-Right, Inc., 3 Ill.App.3d 1065, 280 N.E.2d 23.

IV.

Defendant also asserts that the evidence does not support an inference that American’s misuse of the Skywitch was foreseeable. Defendant argues the improbability of foreseeing (1) the mounting of American’s scaffold on the Skywitch; or (2) that the Skywitch would be positioned on “infirm [sic] terrain” and that, collectively, this constituted a “misuse” of the product. Defendant then contends this misuse of the product, in the absence of the foreseeability of the misuse, negates the existence of a defect and causation as well, because such misuse rather than the condition of the product itself is responsible for the injuries caused thereby. We disagree. First, the addition of the scaffold by American, coupled with the workmen and materials, did not bring the weight on the platform above its rated capacity. To this extent, there was no misuse by American. Even assuming that the addition of tire scaffold contributed in some manner to the contact with the aluminum column, one of the purposes of the relief valve was to operate when something prevented the ascent of the platform. Defendant asserts in its brief that “There was no overload on the Skywitch and had it not come into contact with the building the accident would never have happened.” This is true, but we believe from the evidence that the relief valve was designed to operate in an emergency such as occurred here, and that as to the relief valve there was no misuse; rather, it appears that the occasion arose when it should have operated.

Based upon Illinois interpretation of the foreseeability test, “that which is objectively reasonable to expect” (Winnett v. Winnett, 57 Ill.2d 7, 310 N.E.2d 1), we believe it was foreseeable that a situation of the type here might arise necessitating the activation of the relief valve.

V.

Defendant also contends that the independent negligence of plaintiff’s insured contributed to the cause of the occurrence and thereby precluded restitution by indemnity. Specifically, defendant attributes to plaintiff the following acts of “independent negligence”: (1) a failure to adequately test the relief valve by loading tire platform in excess of its rated capacity; and (2) a failure to warn American of the precariousness of using the Skywitch in the manner contemplated by them.

Defendant then reasons that "as a joint tortfeasor plaintiff simply was not entitled to indemnification.” However, most recently in Kossifos v. Louden Machinery Co., 22 Ill.App.3d 587, it was held that the negligence of the assembler of component parts does not preclude recovery and indemnity against the manufacturer of a defective part on the theory of strict liability. Concerning the defendant manufacturers contention that the assembler was contributorily negligent, the Kossifos court stated:

“In Williams v. Brown Mfg. Co., 45 Ill.2d 418, 261 N.E.2d 305, the court held that a greater degree of culpability than ordinary negligence on plaintiffs part was necessary in order to preclude recovery from a manufacturer strictly liable in tort. In holding that contributory negligence was not a bar to recovery in a strict product liability action against a manufacturer, the court, in effect, designated strict product liability as a more serious tort than the tort of ordinary negligence. See also Meador v. City of Salem, 1 Ill.2d 572, 284 N.E.2d 266.”

Similarly, in Stanfield v. Medalist Industries, Inc., 17 Ill.App.3d 996, 1000, 309 N.E.2d 104, where the plaintiff brought a strict liability action against the defendant manufacturer who, in turn, sought indemnity against the plaintiff’s employer for its alleged active negligence. The court, in citing the Restatement of Torts position, adopted in Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182, noted that the independent negligence of the employer cannot be the basis for an indemnity action brought by a manufacturer held strictly liable:

“We conclude, therefore, that actions founded on strict liability for defective and unreasonably dangerous products are outside the active-passive theory of indemnity. Hence, third-party actions for indemnity against a subsequent user are not maintainable by the manufacturer or seller of the defective product.”

See also Burke v. Sky Climber, Inc., 13 Ill.App.3d 498, 301 N.E.2d 41, which involved a suit for injuries against a scaffold manufacturer who, in turn, filed a third-party claim for indemnity against Chicago Housing Authority, the employer of the original plaintiff. It was stated there, at page 504:

“It is Sky Climber’s theory here that it had legal right to bring an action over against CHA for common law indemnity. Sky Climber concedes here that no Illinois court has ever held that this type of action is permissible. But it urges ‘that there are neither practical nor theoretical nor policy reasons which should preclude such an action.’ We cannot agree.
In our opinion, the basic underlying reasons of policy, as expressed in Suvada, should be operative here to prevent this type of indemnity. Sky Climber is the manufacturer and distributor of this product and therefore presumably the one who reaped the profits from its manufacture. Hence, the ultimate liability, if there be one because of a defective or unreasonably dangerous condition of the product when it left the manufacturer s possession, should rest upon Sky Climber as creator of the product.”

Defendant maintains that because Kossifos, Stanfield and Sky Climber involve suits by a party in the manufacturer-distribution chain against a purchaser-user of a product which caused injury to an employee of that user, that they are distinguishable from the instant case, which involves a manufacturer-assembler and the manufacturer of a component part. We note, however, that although plaintiff is a manufacturer-assembler, it is also a purchaser-user of defendant’s pump unit, and we believe that the reasoning of those three cases applies here, so that “the defense” of plaintiff’s negligence is not available to defendant.

Therefore, the failure of plaintiff to test the Skywitch and warn American, if such duties exist, does not eliminate defendant’s responsibility to correctly preset the relief valve, nor does any such alleged failure on plaintiffs part constitute an intervening cause of the accident vitiating defendant’s liability.

As to plaintiff’s count sounding in negligence, we note that the jury was properly instructed on this facet of plaintiff’s theory for recovery and also on the necessity for plaintiff to establish the exercise of its subrogees’ due care. On the factual question presented to it, the jury found no negligence on the part of Charles, so that the conduct alleged here by defendant as constituting negligence has already been determined. (Bolander v. Gypsum Engineering, Inc., 87 Ill.App.2d 325, 329, 231 N.E. 2d 659.) Our review of the record does not lead us to believe that this finding was against the manifest weight of the evidence, and we are therefore constrained to follow the finding made in the trial court.

VI.

Finally, defendant asserts error in the trial court’s decision to give certain jury instructions tendered by plaintiff on the issue of negligence, since, as it claims, there was no evidence offered by plaintiff on the question of negligence. We note that with respect to plaintiff’s instructions 1-B (dealing with the issue of negligence) and 3 (concerning plaintiff’s burden of proof on the question of negligence), there were no objections made by defendant to them at the conference on instructions. Therefore, by the failure to object at the conference on instructions, defendant waived any error in the giving of these instructions. (Boone v. Baker, 9 Ill.App.3d 509, 292 N.E.2d 461.) Defendant did, however, make a general objection to plaintiffs instruction 15, which defined negligence. In view of the fact that the court, without any objection from defendant, gave the aforementioned instructions, 1-B and 3, on plaintiffs negligence theory, it was necessary that the jury be instructed on the definition of negligence. In view thereof, we believe that no error was committed by the court in the allowance of these instructions.

Even assuming there was no evidence on the issue of negligence, we believe that the evidence offered at trial amply supported the general verdict returned by the jury. On the question of whether to invoke the presumption that a general verdict is based upon the evidence which supports the valid counts or issues, the court in Huckabee v. Bell & Howell, Inc., 102 Ill.App.2d 429, 243 N.E.2d 317, stated on page 442:

“Where the reviewing court can see the case has been fairly tried, and that the judgment is clearly right upon the facts, and that consequently another trial must necessarily result the same way, it will not reverse on the ground that an erroneous issue has been submitted to the jury.”

Accordingly, we find that the jury reached its verdict based upon those issues supported by the evidence and that its decision was correct.

For the foregoing reasons, the judgment is affirmed.

Affirmed.

DRUCKER and LORENZ, JJ., concur.

       Although the hydraulic pump was to be limited to producing a maximum pressure of 2000 psi, it could be capable of exerting at least 4000 psi if the relief valve was not properly preset.

       A tank which accumulates the hydraulic oil.