author: MR. JUSTICE KLUCZYNSKI

text:
    (No. 52479.
    JOHN T. POPOVICH, Indiv. and as Adm’r, Appellee, v. RAM PIPE & SUPPLY COMPANY, INC., et al. (Reliance Insurance Co. et al., Appellants).

      Opinion filed October 17, 1980.

    Rehearing denied November 26, 1980.

      Judge, Drew, Cipolla & Kurnik, Ltd., of Park Ridge (Timothy T. McLaughlin, of counsel), for appellants.
    Joseph P. Condon, of Condon & Zopp, of Crystal Lake, for appellee Crystal Lake School District No. 47.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

This is an appeal by Reliance Insurance Company, Northwestern Garage, Inc., A. Curtis Dufield, and Sandra M. Newman (intervenors) from a judgment of the circuit court of McHenry County denying their petition to intervene in a wrongful death action. Intervenors, with the exception of Reliance, had been named defendants in the suit but were dismissed by plaintiff after execution of a document captioned “loan agreement” under which Reliance, liability insurer for Northwestern Garage, advanced $20,000 to plaintiff. The agreement requires repayment of the money advanced only in the event plaintiff recovers judgment in excess of $20,000 from remaining defendants and only then in the amount of such excess, up to and including the amount advanced. The circuit court ruled that the agreement was, in effect, a covenant not to sue rather than a loan agreement, and it reduced the jury’s verdict by the amount paid under the agreement and entered judgment in that reduced amount. Intervenors sought to intervene and argued that the court erred in its construction of the agreement. The circuit court denied the petition to intervene, and intervenors appealed. The appellate court reversed the circuit court’s ruling that intervention was improper, but it affirmed the circuit court’s determination that the agreement is not a true loan agreement. The court remanded the cause to the circuit court with directions to reinstate the jury’s verdict but to set off the amount received under the agreement as a partial satisfaction of judgment. (74 Ill. App. 3d 343.) We granted intervenors leave to appeal.

On May 22, 1973, David G. Popovich, 7 years old, was hit by a truck as he alighted from a school bus in or near Crystal Lake, McHenry County. The truck was driven by defendant Gregory D. Winans and was owned by defendant Ram Pipe 8c Supply Company. The bus from which the Popovich boy alighted was driven by intervenor Sandra M. Newman and was owned by intervenor Northwestern Garage. Intervenor A. Curtis Dufield is vice-president of Northwestern Garage, and intervenor Reliance Insurance Company is its liability insurer. Plaintiff’s complaint also named Crystal Lake School District No. 47 as a defendant, alleging that the district is responsible for the school bus program in which the Popovich boy was participating.

As a result of injuries sustained, the Popovich boy died one week later. His father, John T. Popovich, filed this wrongful death action in the circuit court of Cook County. On motion of the defendant school district, the cause was transferred to McHenry County. Plaintiff thereafter filed an amended complaint and sought leave to add K & K Well Drilling, Inc., as a defendant, alleging that K 8c K was the employer of Winans, driver of the truck which struck the Popovich boy. The circuit court’s disposition of plaintiff’s motion to add K & K does not appear in the record, but it would appear from K & K’s participation in later proceedings that the motion was allowed and that K & K remained in the suit for at least some time. Shortly after plaintiff sought leave to add K & K, the defendant school district filed a third-party complaint for indemnification from K 8c K and Winans on an active-passive negligence theory.

While the case was still in its pretrial stages, plaintiff, Reliance Insurance Company, Northwestern Garage, and Sandra M. Newman executed a document entitled “loan agreement.” The agreement provides:

“I, John T. Popovich, as Administrator of the Estate of David G. Popovich, hereby acknowledge receipt from the Northwestern Garage, Inc., a corporation, and Sandra Newman, by and through their insurance company, Reliance Insurance Company, a corporation, the sum of Twenty Thousand and no/100 ($20,000.00) Dollars, as a loan, without interest.
It being understood by all parties hereto, that I am discussing and will possibly be accepting a similar loan, without interest from the Crystal Lake Community School District No. 47, a municipal corporation, by and through their insurance company, the Western Insurance Companies, a corporation, in the sum of Ten Thousand and no/100 ($10,000.00) Dollars.
I hereby agree and promise to repay this loan, from any judgment I am legally entitled to collect, as Administrator, from any of the remaining Defendants ***; that I have no obligation to repay said sum from the amount of any judgment I obtain from said Defendants that is equal to or less than the amount of this loan.
It being further understood, that if in fact the aforesaid additional loan with the Crystal Lake School District No. 47, is *** made, the obligation to repay the two (2) loans, will be on a pro-rata basis, out of the proceeds of any judgment in excess of the total amount of the two (2) loans.
I further agree that I shall use and pursue any reasonable and legal means which are available to me to collect any judgment I obtain against any Defendant ***.”

Plaintiff, as administrator of his son’s estate, obtained approval of the agreement from the McHenry County probate court, and he thereafter stipulated to the dismissal, without prejudice, of Northwestern Garage and Newman from the wrongful death action. All parties to the action were apprised of the agreement, and defendants Ram, K & K, and Winans moved to dismiss on the ground that the agreement is actually a release or, alternatively, for setoff of $20,000 against any verdict that might be returned. The circuit court refused to dismiss the action and reserved ruling on the request for setoff.

At the trial of the cause, a jury returned a verdict of $35,000 for plaintiff and against the defendant school district. The jury also returned a verdict for defendants Ram and Winans, finding, in response to a special interrogatory, that Winans was not guilty of any negligence proximately causing the injuries or death of the Popovich boy.

On motion by the defendant school district, the circuit court ruled that the agreement executed by plaintiff and intervenors is, in effect, a covenant not to sue rather than a loan agreement because repayment is not contemplated unless a verdict is returned in a certain amount. The court vacated the verdict of $35,000, subtracted therefrom the $20,000 paid by intervenors to plaintiff, and entered judgment in that reduced amount, $15,000. Intervenors sought to intervene on the ground that the circuit court’s ruling adversely affected their rights under the agreement, and they argued that the court should have given effect to the agreement as a loan agreement. The court denied intervenors’ petition, and they appealed. The appellate court held that intervention should have been allowed, but it agreed with the circuit court that the agreement, because of the peculiar repayment provision, was not a true loan agreement of the type approved in Reese v. Chicago, Burlington & Quincy R.R. Co. (1973), 55 Ill. 2d 356. The appellate court found itself unable to say that the agreement was a release or covenant not to sue; the court held only that it was not a bona fide loan agreement. Rather than reducing the amount of the jury’s verdict, as the circuit court did, the appellate court ordered that the $20,000 advanced by intervenors to plaintiff be set off against the verdict as a partial satisfaction of judgment.

In this court, intervenors argue that the money they advanced to plaintiff was intended as a loan; that agreements such as the one they executed with plaintiff, including the agreement’s repayment provision, should be construed according to the intent of the contracting parties; and that the construction which upholds the agreement is preferred, citing Schek v. Chicago Transit Authority (1969), 42 Ill. 2d 362, 364, and Schiro v. W. E. Gould & Co. (1960), 18 Ill. 2d 538, 542-43. To a limited extent, we agree with intervenors; agreements of this sort should generally be construed according to the intention of the contracting parties. (Reese v. Chicago, Burlington & Quincy R.R. Co. (1972), 5 Ill. App. 3d 450, 456, affd (1973), 55 Ill. 2d 356; Prosser, Torts sec. 49, at 303 (4th ed. 1971).) As with any agreement, however, the intent of the parties must give way where contrary to policy considerations. (O’Callaghan v. Waller & Beckwith Realty Co. (1958), 15 Ill. 2d 436, 437; Jackson v. First National Bank (1953), 415 Ill. 453, 460.) Here, the policy against double recovery by tort plaintiffs militates against giving complete effect to the intent of intervenors and plaintiff in entering into their agreement. Application of the repayment provision of the agreement, as written and intended by intervenors and plaintiff, would result in a monetary recovery by plaintiff in an amount greater than that which the jury determined to be his total measure of damages; plaintiff would be required to repay only $15,000 of the $20,000 advanced by intervenors, thus retaining $5,000 which, when added to the $35,000 owed by the defendant school district under the jury’s verdict, would give plaintiff a total recovery of $40,000. This result and the peculiar repayment provision here in question have not been expressly disapproved in any of the court’s prior cases dealing with loan agreements (Rucker v. Norfolk & Western Ry. Co. (1979), 77 Ill. 2d 434, 441; Kerns v. Engelke (1979), 76 Ill. 2d 154, 167-71; Casson v. Nash (1978), 74 Ill. 2d 164, 168-70; Gatto v. Walgreen Drug Co. (1975), 61 Ill. 2d 513, 520-23; Harris v. Algonquin Ready Mix, Inc. (1974), 59 Ill. 2d 445, 451-52; Reese v. Chicago, Burlington & Quincy R.R. Co. (1973), 55 Ill. 2d 356, 361-65), but double recovery is a result which has been condemned in other contexts. (See, e.g., Peterson v. Lou Bachrodt Chevrolet Co. (1979), 76 Ill. 2d 353, 362 (a plaintiff may not recover for the value of services obtained without expense, obligation or liability); McFadden v. St. Paul Coal Co. (1914), 263 Ill. 441, 443-45 (availability of remedies under two statutes does not allow double recovery for the same injury).) To the extent that the agreement of intervenors and plaintiff would allow double recovery, we refuse to give it that effect, regardless of the intentions of the contracting parties. “Payments made by one of the tortfeasors on account of the tort either before or after judgment, diminish the claim of an injured person against all others responsible for the same harm. This is true although it was agreed between the payor and the injured person that the payment was to have no effect upon the claims against the other.” (Restatement (Second) of Torts sec. 885, comment e (1979).) Under well-established principles, amounts paid by “one or more of the joint tort-feasors are to be applied in reduction of the damages recoverable from those remaining in the suit.” New York, Chicago & St. Louis R.R. Co. v. American Transit Lines, Inc. (1951), 408 Ill. 336, 342; see Rucker v. Norfolk & Western Ry. Co. (1979), 77 Ill. 2d 434, 441; Kerns v. Engelke (1979), 76 Ill. 2d 154, 171.

Accordingly, we hold that the agreement of intervenors and plaintiff be given effect as a loan agreement only to the extent that the money advanced thereunder, $20,000, is to be repaid by plaintiff to intervenors, i.e., $15,000. The remaining $5,000, retained by plaintiff, is to be set off against the verdict of $35,000 as a partial satisfaction of judgment. The liability of the defendant school district, against whom the verdict was returned, is reduced to $30,000. We cannot say, as the appellate court did, that the agreement completely fails to meet the standards enunciated in Reese v. Chicago, Burlington & Quincy R.R. Co. (1973), 55 Ill. 2d 356, or that the agreement in no respect evidences a loan. Unlike Harris v. Algonquin Ready Mix, Inc. (1974), 59 Ill. 2d 445, Kerns v. Engelke (1979), 76 Ill. 2d 154, and Rucker v. Norfolk & Western Ry. Co. (1979), 77 Ill. 2d 434, the agreement was executed before trial, thereby affording noncontracting defendants the opportunity to cross-examine any witnesses at trial who might have an interest in the agreement and, consequently, an interest in seeing plaintiff obtain a verdict. (Reese v. Chicago, Burlington & Quincy R.R. Co. (1973), 55 Ill. 2d 356, 364; Casson v. Nash (1978), 74 Ill. 2d 164, 168-69.) Unlike Gatto v. Walgreen Drug Co. (1975), 61 Ill. 2d 513, 522-23, the agreement here was disclosed to the court, the contracting defendants were dismissed, and the court was not forced to determine the liability of a sham defendant.

The judgment of the appellate court is reversed, except insofar as it determined that the circuit court erred in denying intervenors’ petition to intervene, a point not raised in this court. The judgment of the circuit court is reversed, and the cause is remanded to that court with directions to allow the petition to intervene, to allow $5,000 as a setoff against the verdict of $35,000, and to enter judgment accordingly.

Appellate court affirmed in part and reversed in part; circuit court reversed; cause remanded, with directions.


source: Caselaw Access Project

author: MR. JUSTICE CLARK MR. JUSTICE UNDERWOOD, MR. JUSTICE RYAN,

license: Public Domain

text:
    (No. 52608.
    BRUCE ALLEN PALMER, a Minor, Appellee, v. AVCO DISTRIBUTING CORPORATION, Appellant.

      Opinion filed October 17, 1980.

    Rehearing denied November 26, 1980.

      UNDERWOOD and RYAN, JJ., dissenting.
    Lord, Bissell & Brook, of Chicago (Richard E. Mueller, Richard F. Johnson, and Norman J. Lerum II, of counsel), for appellant.
    Joseph A. Rosin, of Chicago, for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

On April 27, 1973, 11-year-old Bruce Allen Palmer and his brother accompanied Allen Miller and his two sons to. the Edward Kalvelage residence to borrow a bulk fertilizer spreader. The boys returned with Miller to his farm and helped him shovel fertilizer into the borrowed spreader, defendant Avco Distributing Corporation’s (hereafter Avco) Model 114. Miller began fertilizing. Some of the boys rode on top of the fertilizer inside the spreader.

The spreader was towed by a tractor operated by Miller. The spreader measured about 6Vz feet long, almost 8 feet wide and more than 6 feet high. At the bottom of the spreader was an agitator, a sharp toothed rotary type instrument which ran the length of the spreader and was designed to chew up fertilizer lumps into granules. The sides of the spreader were V-shaped, so that the fertilizer dropped by force of gravity toward the agitator in the bottom. Below the agitator was an augur which fed the granules into a spinner, located in the rear of the spreader. The spinner distributed the fertilizer. Above the agitator were two pieces of metal, 4 inches wide and 85 inches long, joined lengthwise at a 90-degree angle. Called the baffle, it kept the weight of a full load of fertilizer off of the agitator. The agitator rotated only when the spreader was pulled forward. A metal bar designed to hold a canvas top ran above the hopper.

Bruce Palmer, the plaintiff in this action, received injuries necessitating the amputation of his leg well above the knee when his left leg got caught in the agitator. The facts were extensively detailed in the appellate court opinion (75 Ill. App. 3d 598) and will be presented here in more abbreviated form.

Plaintiff initially sued Avco, Miller and Miller Farms, Inc. (hereafter Miller Farms) and Edward Kalvelage. Miller filed a third-party complaint against Avco and International Minerals, Inc. (hereafter International), seeking indemnification if he was found liable to plaintiff. Before trial, however, a platform loan agreement was executed between Country Mutual Insurance Co., representing defendants, Miller, Miller Farms, and Kalvelage, and the plaintiff.

Under the agreement, Country Mutual loaned plaintiff $266,000, to be repaid at the rate of 20% of the amount of the verdict obtained against Avco which exceeded $500,000. Thus a verdict of $1,830,000 against Avco would have resulted in a complete repayment of Country Mutual. Lesser verdicts that exceeded $500,000 would have resulted in partial repayments. In return for the loan, Miller, Miller Farms and Kalvelage were dismissed as defendants. A second agreement, the terms of which were not revealed on the record, resulted in the discharge of International Minerals in return for $7,500. In the suit against the remaining defendant, Avco, a jury in Cook County found that the spreader was unreasonably dangerous and that this condition was a proximate cause of plaintiff’s injuries, and it awarded $492,000 in damages. Upon an appropriate motion, the trial judge refused to credit the $273,500 received by the plaintiff pursuant to the agreements toward the verdict of $492,000.

The appellate court affirmed the jury verdict and the trial judge’s refusal to credit the money received pursuant to the agreements against the jury verdict. One judge dissented on the latter issue. (75 Ill. App. 3d 598, 609.) We granted leave to appeal. Defendant questions the sufficiency of the evidence supporting the jury determination that the fertilizer spreader was unreasonably dangerous due to defective design and inadequate warnings and instructions. Since we affirm the jury’s finding on this issue, we must consider defendant’s second contention: whether money paid pursuant to the platform loan agreement by the dismissed defendants should have been credited toward the jury verdict rendered against Avco. On this issue we reverse the appellate court.

The evidence amply supports the jury’s determination that plaintiff’s injuries resulted from a condition of the fertilizer spreader, that its condition was unreasonably dangerous, and that this condition existed at the time it left the manufacturer’s control. (Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 623.) If these elements are proved, liability will attach despite the exercise of due care by the seller and regardless of contractual relationships. Restatement (Second) of Torts secs. 402A(2)(a), (b) (1965).

The marriage of tort and contract concepts (see Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 619) has not occasioned complete domestic tranquility in the strict liability household. A product is unreasonably dangerous when it is “dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” (Restatement (Second) of Torts sec. 402A, comment i (1965); Hunt v. Blasius (1978), 74 Ill. 2d 203, 211-12; Dunham v. Vaughan & Bushnell Manufacturing Co. (1969), 42 Ill. 2d 339, 342.) This evidences the warranty heritage of strict liability.

Avco challenges the jury verdict on three grounds. First, it contends that the spreader was used in an unforeseeable fashion. Second, it contends that the design of the product was not unreasonably dangerous. Finally, it contends that, in view of a warning placed on the spreader, it was not being used as intended.

Unquestionably there was evidence from which the jury could infer that farm personnel, household members and children customarily rode in fertilizer spreaders, making this use of the spreader foreseeable. Three farmers and one expert witness testified to their personal knowledge of that custom. Defendant maintains that there was no evidence that children like the plaintiff customarily rode in fertilizer spreaders for purposes other than performing farm chores. Defendant itself, however, cross-examined one of plaintiff’s witnesses, a full-time farmer, and elicited testimony contrary to its contention:

“Q. Do you think it is a good practice to allow an 11-year-old boy with no farm experience on a spreader?
A. Well, it is not a good practice, but it is done.”

At least one other witness testified that in his experience farmers customarily had people ride on their vehicles and specifically that children sometimes accompanied their parents by riding on fertilizer spreaders and other vehicles for both pleasure and work purposes. Defendant did produce farm witnesses who testified that no such custom existed; but the conflict engendered by this evidence and the credibility of plaintiff’s witnesses were questions within the province of the jury to resolve. We conclude, therefore, that the jury could have decided reasonably from the evidence that it was objectively foreseeable that children of plaintiff’s age might ride inside fertilizer spreaders. Thus distinguished is Winnett v. Winnett (1974), 57 Ill. 2d 7, in which there were no allegations that very young children were customarily allowed to roam unattended close to operating farm machinery.

Defendant contends, however, that the foreseeability of a harmful risk alone is not the sole determinant of a manufacturer’s duty. And if by this defendant means that a manufacturer is under no duty to sell products incapable of causing injuries, it is of course correct. (Kerns v. Engelke (1979), 76 Ill. 2d 154, 166.) But the jury’s decision that this spreader was unreasonably dangerous is supported by the evidence.

Dr. Norval War die, a retired agricultural engineer in safety at the University of Iowa, testified that, based on his inspection, Avco model 114 was an unreasonably dangerous fertilizer spreader. His opinion was grounded upon (1) the known propensity of fertilizer to clog, interfering with the flow of fertilizer to the spinner (insofar as the lumps were too large to pass under the baffle to the agitator), (2) the false sense of security engendered in one inside the spreader by the placement and appearance of the baffle, (3) insufficient guarding of the agitator to prevent one inside the spreader from getting hands or feet caught in the agitator, (4) the lack of instructions on the machine describing the appropriate procedures to eliminate fertilizer lumps formed in the machine, and (5) inadequate warning of the hazard of the agitator. In explaining his opinion, he noted that unless farmers carried a club-like instrument to break up fertilizer clumps, they would have to climb inside the spreader and crush them with their feet. If another person were available to help, it would be natural for that person to remain inside the spreader as they were fertilizing to avoid having to stop the tractor each time lumps interfered with the flow of fertilizer. The placement of the baffle appeared ideally suited for someone inside the spreader to stand on. And the bar across the top of the spreader appeared to offer a perfect handhold for one riding inside it. Yet at the same time the baffle only prevented one from recognizing the hazard posed by the agitator; it did not prevent one from slipping into it.

Dr. War die said that the Avco model 114 could have been made safely if grids, grillwork, bars or the equivalent had been installed at some point at the top of or inside the spreader. Admitting that further testing would be necessary to determine the ultimate form and feasibility of such devices, he nevertheless contended that, based on prior experience with similar problems, some such device was workable. These features, in his opinion, could have been added at an approximate cost of $50 per spreader. Dr. John Siemens, an agricultural engineer at the University of Illinois, testified similarly to Dr. War die.

Plaintiff’s expert witnesses’ testimony was controverted by expert witnesses for Avco, who said that the spreader was safe because it was designed for operation by one person. Thus, when lumps had to be broken up, this person would necessarily stop the tractor, automatically terminating the agitator’s rotation. The positioning of the agitator at the bottom of the spreader and the warning sign on the machine also were considered adequate safeguards. These experts contended that no bars or grill-work could be placed inside the machine without interfering with the flow of fertilizer. The force of this testimony was diluted by the presence of screens and grills inside conveyor-type spreaders, by the tendency of fertilizer to clog even in an Avco spreader and by their admitted failure to test any of the devices suggested by plaintiff’s experts. It also was admitted that they left the problem of clumping fertilizer up to the ingenuity of each farmer.

Certain benefits of the model 114 design were claimed, however. Among them were a more even spread of fertilizer because of the success of the agitator in breaking up all but the largest fertilizer lumps and the avoidance of an uneven weight distribution inside the spreader as the fertilizer was discharged. A conveyor-type spreader, in contrast, unloaded fertilizer from front to back so that when it is half full all the weight is in the rear of the spreader.

These conveyor-type spreaders operate without an agitator. Instead, a link-chain conveyor carries lumps of fertilizer back toward the spinners. Still other spreaders rely on a coil, in place of an agitator, to break up fertilizer lumps.

We think that a jury could conclude reasonably from this evidence that the use of a sharp-toothed agitator without a guard or other safety device was not reasonably necessary to the effective operation of a bulk fertilizer spreader. Thus evidence was introduced to prove the unreasonable danger of the fertilizer spreader in the two ways this is ordinarily proved (see generally Barker v. Lull Engineering Co. (1978), 20 Cal. 3d 413, 573 P.2d 443, 143 Cal. Rptr. 225): (1) introducing evidence that

people customarily rode in spreaders to break up fertilizer lumps and for other purposes, that they could do so in other spreaders without risk of harm and that their expectation would be that they could do so in the Avco spreader (Restatement (Second) of Torts sec. 402A, comment i (1965); Hunt v. Blasius (1978), 74 Ill. 2d 203, 211; Dunham v. Vaughan & Bushnell Manufacturing Co. (1969), 42 Ill. 2d 339, 342) and (2) introducing evidence that the Avco spreader could have been designed to prevent a foreseeable harm without hindering its function or increasing its price. See Rucker v. Norfolk & Western Ry. Co. (1979), 77 Ill. 2d 434, 437-41; Kerns v. Engelke (1979), 76 Ill. 2d 154, 161-66; Anderson v. Hyster Co. (1979), 74 Ill. 2d 364, 368-69.

Defendant contends, however, that a warning placed in front of the spreader near the operator’s controls prevents a finding of liability. The warning is reproduced here in its actual size and design:

Just last term we noted that a failure to warn could result in an action for strict liability despite the otherwise non-actionable nature of the product. (Woodill v. Parke Davis & Co. (1980), 79 Ill. 2d 26, 30.) We did not in that case, however, discuss the circumstances under which a given warning could be deemed inadequate. In strict liability cases, warnings function either to shift the risk or reduce it. Unavoidably unsafe products may require a warning to inform the consumer that harm sometimes results from the product. (See, e.g., Lawson v. G. D. Searle & Co. (1976), 64 Ill. 2d 543, 550-51.) If the warning is adequate, consumers proceed to use the product at their own risk. The warning here, however, was supposed to function to reduce the probability that harm would occur at all from a design otherwise unreasonably dangerous.

The adequacy of warnings of either type usually present jury questions (Lawson v. G. D. Searle & Co. (1976), 64 Ill. 2d 543, 553; cf. Dunham v. Vaughan & Bushnell Manufacturing Co. (1969), 42 Ill. 2d 339, 343-44). Other jurisdictions have recognized that warnings could be inadequate, for example, if they did not specify the risk presented by the product (Jackson v. Coast Paint & Lacquer Co. (9th Cir. 1974), 499 F.2d 809, 811-14; Kozlowski v. John E. Smith’s Sons Co. (1979), 87 Wis. 2d 882, 899, 275 N.W.2d 915, 922-23; Schuh v. Fox River Tractor Co. (1974), 63 Wis. 2d 728, 218 N.W.2d 279 (a case similar to the instant one)), if they were inconsistent with how the product would be used (Anderson v. Klix Chemical Co. (1970), 256 Or. 199, 207-10, 472 P.2d 806, 810-11), if they did not provide the reason for the warning (D’Arienzo v. Clairol, Inc. (1973), 125 N.J. Super. 224, 310 A.2d 106 (linguistic sufficiency and product environment were relevant factors)), or if they did not reach foreseeable users (Pan-Alaska Fisheries, Inc. v. Marine Construction & Design Co. (9th Cir. 1977), 565 F.2d 1129, 1136; Jonescue v. Jewel Home Shopping Service (1974), 16 Construction & . App. 3d 339). The variety of products and warnings has produced a spate of litigation on this subject. (See Annot., 53 A.L.R.3d 239 (1973).) And this is an area of the law in which the principle — that the warning must be adequate to perform its intended function of risk reduction — is clear even while its application is not necessarily uniform.

Considering this principle, there was sufficient evidence from which the jury could infer that the warning was ineffective. The warning itself did not specify the danger presented by the agitator. It did not detail the extent of the risk it posed to life and limb. Plaintiff’s expert said the warning was inadequate because:

“It is very general and does not go to the specific hazard of this particular machine. The hazard that we are concerned with here is the agitator. There is no mention in here about the agitator, no clarification as to its location or why it is a hazard or anything like that.”

In addition to the inadequacy of the warning itself, the jury could have determined reasonably that the design of the spreader was inconsistent with it. The sign was rather small compared to the size of the spreader, and its placement could reasonably have been deemed insufficient to warn foreseeable users like this plaintiff or operators like Miller. Plaintiffs expert noted that the baffle appeared to be suitable to support someone riding inside the spreader and therefore gave “a false sense of security,” whereas it was “actually open and not sufficiently guarded to prevent an individual having their foot or hand go in if for any reason they are in the box of this fertilizer spreader.”

The jury was able to determine whether these opinions were justified. It examined the spreader itself, a new warning plate like the one on the spreader, and a picture of the actual warning plate on the spreader. This firsthand inspection helps convince us that the jury’s determination of the ineffectiveness of the warning was reasonable, so we join the jury, the trial judge and the three appellate court judges in concluding that this fertilizer spreader was unreasonably dangerous despite the warning. The defects in this warning apply equally when considering the spreader’s use by Miller and by the plaintiff, and, therefore, defendant’s cryptic statement that the sole proximate cause of the injury, as a matter of law, was Miller’s misuse of the product cannot be taken seriously.

In sum, then, we hold that despite the warnings the Avco model 114 fertilizer spreader was unreasonably dangerous in view of user expectations and possible alternative designs. It is enough, of course, that these conditions resulted in plaintiff’s injury. Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 623.

Because we affirm the jury verdict, we must consider the effect of the platform loan agreement. This issue is largely foreclosed by Popovich v. Ram Pipe & Supply Co. (1980), 82 Ill. 2d 203, decided this same day. It would serve no useful purpose to develop again the Popovich rationale, which was based on the long-standing policy against double recoveries. In this case, however, it is necessary to dispose of additional reasons proffered by the appellate court in reaching a contrary result.

In considering the appellate court’s rationale, it is helpful to set forth the pertinent portions of the instant agreement:

“Repayment shall be made only in the event that a judgment is rendered against Avco Distributing Corporation, in favor of the Plaintiff, Bruce Allen Palmer, in excess of Five Hundred Thousand ($500,000) Dollars and collection actually made thereon, and then only to the limited extent of Twenty (20%) Percent that the actual net recovery and collection exceeds said sum of Five Hundred Thousand ($500,000) Dollars.”

The appellate court decided that this agreement should be enforced as written because (1) the entire loss was not shifted to one party as is the case with typical loan agreements, (2) a normal loan agreement like that approved in Reese v. Chicago, Burlington & Quincy R.R. Co. (1973), 55 Ill. 2d 356, would have left Avco in the same financial position it now occupies without grounds for complaint, (3) it came within the rule of Henson Robinson Co. v. Industrial Com. (1944), 386 Ill. 232, in which a party to an agreement waived its right to indemnification, and (4) Avco should not be able to claim the agreement was a covenant not to sue for purposes of setoff while treating it as a loan for purposes of cross-examining the settling party.

This reasoning is unpersuasive. The loss, as determined by the jury, would be borne by one party (Avco) if the agreement were enforced as written, although Country Mutual would still make payment to the plaintiff unless the jury verdict were as high as $1,830,000. Further, unlike the agreement in Reese, the settling parties used one damage figure for purposes of their settlement while acknowledging a higher damage amount to be fulfilled by one not a party to the agreement. Such an agreement divorces the risks of the bargaining process from the establishment of a damage figure to the detriment of nonsettling parties. This State has a policy of protecting the financial interest of nonsettling parties in a settlement (cf. Ill. Rev. Stat. 1979, ch. 70, pars. 302(c), (d) (settlements must be executed in good faith before they will relieve the settling party from liability for contribution) ; see Michael, “Mary Carter” Agreements in Illinois, 64 Ill. B.J. 514, 527-28 (1976); Stambaugh v. Superior Court (1976), 62 Cal. App. 3d 231, 235-39, 132 Cal. Rptr. 843, 845-48; N. Appel & R. Michael, Contribution Among Joint Tortfeasors in Illinois: An Opportunity for Legislative and Judicial Cooperation, 10 Loy. Chi. L.J. 169, 198 (1979)), and this is an appropriate case to implement that policy.

The appellate court, however, relying on Henson Robinson Co. v. Industrial Com. (1944), 386 Ill. 232, argued that Country Mutual could waive its right to be indemnified from the verdict for its loan. In Henson Robinson, a third-party tortfeasor settled with plaintiff for $1,500 and this court allowed this sum to be added to an award subsequently obtained under the Workmen’s Compensation Act. In claiming a right to a setoff, however, the employer’s insurer acted inconsistently with its earlier agreement to the settlement. This settlement included all parties. The evidence showed that the intent of all parties was to provide the employee with more damages than were comprehended by the Workmen’s Compensation Act. The insurer also received a settlement from the third-party tortfeasor as a part of that same agreement. In the instant case, Avco was not a party to the agreement and it did not waive any right to a setoff. In addition, statutory limitations on damages present issues distinguishable from the case at bar when an injury has been concurrently caused by persons within and without the statutory coverage. Our appellate court has grappled with such issues for some time. See, e.g., Slone v. Morton (1963), 39 Ill. App. 2d 495; Kurth v. Amee, Inc. (1972), 3 Ill. App. 3d 506.

Although we consider Henson Robinson inapplicable to this case, in which the enforcement of the agreement as written would result in payment of damages equal to the sum of the consideration paid per the settlement and the verdict returned by the jury, we are also aware of those cases in which amounts of money received pursuant to settlements exceeded jury verdicts subsequently entered against joint tortfeasors. (See, e.g., De Lude v. Rimek (1953), 351 Ill. App. 466, 474-75; Price v. Wabash R.R. Co. (1961), 30 Ill. App. 2d 115, 117-18.) A loan agreement for an amount exceeding a jury verdict would present a question different from the one we decide today.

Finally, we note that Avco has not waived any right to a setoff by cross-examining a witness who may have been biased as a result of the settlement agreement. It is not necessary for us to determine that an agreement is a covenant not to sue before forbidding a double recovery. (See Restatement (Second) of Torts sec. 885, comment e (1979).) Therefore, Avco has not acted inconsistently.

In this connection, we also note that the terms of the agreement itself were properly admitted into evidence. In Reese v. Chicago, Burlington & Quincy R.R. Co. (1973), 55 Ill. 2d 356, 364, we stated that adequate protection for defendants exists “if by cross-examination they are permitted to establish that a witness knows of the existence of a loan agreement, and, if so, that the witness may be biased or prejudiced as a result thereof. In the event that the existence of such agreement is established, an appropriate instruction limiting the effect of the admission into evidence of the loan-receipt terms might be given at the request of any party. ” Thus Reese contemplated the admission of the terms of the agreement itself, which seems logical since such terms would be very relevant in determining the lack of or extent of witness bias. Full revelation also seems preferable to permitting jury speculation about an agreement’s precise terms. Of course, Reese cannot be considered to have abrogated the evidentiary principles of relevance (e.g., Casson v. Nash (1978), 74 Ill. 2d 164, 169-70) or hearsay (see, e.g., State of Indiana v. Ingram (1980),--Ind. App.---,---, 399 N.E.2d 808, 811), and these principles were not contravened in the instant case. Obviously the procedures followed here were not prejudicial to the defendant. It was properly allowed to cross-examine the witnesses who were potentially biased as a result of the loan agreement.

It is just as obvious, however, that in some cases there exists the possibility that a plaintiff will be prejudiced by the revelation of the loan-receipt agreement (see 1 J. Dooley, Modern Tort Law sec. 26.16 (1977); see also Palmer v. Avco Distributing Corp. (1979), 75 Ill. App. 3d 598, 609 (Rizzi, J., concurring in part and dissenting in part)). Plaintiff argues that, because the jury was aware of the agreement’s terms, it intended to award damages in the amount of the $492,000 verdict plus the $266,000 which, pursuant to the agreement, was to be retained by the plaintiff. Since we now hold that the $266,000 will be set off against the verdict, plaintiff argues that a new trial on damages, with a properly instructed jury, is necessary. We agree. In view of our decision today, an instruction informing the jury that amounts retained pursuant to revealed settlements will be credited toward its verdict is unobjectionable under Reese. (See also American State Bank v. County of Woodford (1977), 55 Ill. App. 3d 123, 134-35.) The jury here was instmcted to consider the loan agreement only as bearing upon witness credibility, and while this instmction was proper (Reese v. Chicago, Burlington & Quincy R.R. Co. (1973), 55 Ill. 2d 356, 364), it was insufficient to avoid the problem perceived by plaintiff and insufficient to instmct the jury according to the principles we announce today in Popovich and herein. As was stated by one justice in the appellate court:

“[T]he jury was not fully informed of the effect of the agreement regarding the $266,000. Since the jury was advised that the plaintiff received $266,000 and it would have to be repaid only if he received a verdict in excess of $500,000, the jury should also have been informed that any amount of the $266,000 that the plaintiff did not have to pay back to Country Mutual would be deducted from the amount of any verdict against Avco.
Under the circumstances that occurred in the trial, the jury was left with the improper impression that if it returned a verdict for $492,000, the plaintiff would keep the $266,000 and receive an additional $492,000. This was error requiring a new trial since we should not speculate as to what the jury would have awarded the plaintiff if it was fully informed as to the effect of the agreement with regard to the $266,000. In this regard, it is worth noting that the jury, having heard repayment would be made under the agreement only in the event the verdict exceeded $500,000, returned a verdict for the plaintiff just under that repayment level.” (Palmer v. Avco Distributing Corp. (1979), 75 Ill. App. 3d 598, 613 (Rizzi, J., concurring in part and dissenting in part).)

We therefore hold that a new trial on damages is required.

For the reasons stated, we affirm the judgment of the appellate court on the liability issue but reverse its decision on the effect of the loan agreement. The judgment of the circuit court is affirmed as to liability and vacated as to the amount of damages. The cause is remanded to the circuit court for a new trial on the issue of damages according to the views set forth herein.

Appellate court affirmed in part and reversed in part; circuit court affirmed in part and vacated in part; cause remanded.

MR. JUSTICE UNDERWOOD,

dissenting:

While the court purports to distinguish our earlier decision in Winnett v. Winnett (1974), 57 Ill. 2d 7, the two opinions seem to me philosophically irreconcilable. I join Mr. Justice Ryan’s dissent on the issue of liability.

MR. JUSTICE RYAN,

also dissenting:

This is another products liability case involving farm equipment designed for the application of fertilizer in which I cannot agree with the opinion of my colleagues. (See Thomas v. Kaiser Agricultural Chemicals (1980), 81 Ill. 2d 206, 218 (Ryan, J., dissenting).) My dissent here, as in Thomas, is based upon the failure to abide by, and a complete disobedience of, a clear warning plainly printed on the vehicle. There is no contention here, as there was in Schuh v. Fox River Tractor Co. (1974), 63 Wis. 2d 728, 218 N.W.2d 279, where a similar warning was involved, that the label had not been seen or that it was located in such a position that it was not visible.

I also want to initially note that the opinion of Dr. Norval Wardle that this spreader was unreasonably dangerous is based on the dangers to one who is in the hopper of the spreader to break up lumps of fertilizer. The record does not establish that the plaintiff was in the spreader for that purpose, or that it was intended that this machine be used in that manner. It is interesting to note that Dr. Wardle also testified for the plaintiff in the Wisconsin case above cited.

The opinion seems to focus on evidence which would constitute this piece of machinery unreasonably dangerous because of the way it was constructed, and because Dr. Wardle testified that the spreader could have been made with some type of protective grids or grillwork at a cost of approximately $50. This evidence, as I see it, is relevant only insofar as it indicates a foreseeable danger from other than the normal use of the spreader. Likewise, the testimony that people, including children, customarily rode in the fertilizer spreader is relevant only insofar as it relates to the individuals to whom injury may be reasonably foreseen and a use of the spreader that may be reasonably foreseen. This machine was not dangerous if used in the manner and for the purpose for which it was designed. It was designed for a one-man operation. It was not powered by a power takeoff, but was designed so that when it was not moving, the rotating agitator in the bottom of the hopper, which Dr. Wardle viewed as dangerous, was not in operation. If the person operating the machine had to stop to break up lumps of fertilizer in the hopper, he was in no danger, because the agitator would not be in motion. Thus, the testimony of the experts to the effect that this machine was unreasonably dangerous relates only to its condition if not used in the manner intended.

However, it was reasonably foreseeable that it would not be used as intended and that an injury might result from such an intended use. This then brings this case within the purview of Restatement (Second) of Torts section 402A, comment h, at 351-52 (1965), which states that a product, not defective when safe for normal use, may be defective in the absence of a warning if the manufacturer has reason to anticipate that injury may result from the particular use which is reasonably foreseeable. A product sold under these conditions without an adequate warning of the danger is in a defective condition. Likewise, although not relevant here, if there is a known or foreseeable danger when the product is used in its normal or intended use, there is a duty to adequately warn. See Annot., 53 A.L.R.3d 239, 249, 251, 255 (1973); Jonescue v. Jewel Home Shopping Service (1974), 16 Ill. App. 3d 339, 344; Genaust v. Illinois Power Co. (1974) , 23 Ill. App. 3d 1023, 1031, aff’d (1976), 62 Ill. 2d 456; Greiner v. Volkswagenwerk Aktiengeselleschaft (3d Cir. 1976), 540 F.2d 85.

The law does not require that a product be accident proof, incapable of causing harm, or accompanied by a warning against every injury that may be incurred in the use of the product. The purpose of a warning is to apprise a party of a danger and to enable him to protect himself against it. (Jonescue v. Jewel Home Shopping Service (1974), 16 Ill. App. 3d 339, 345.) In our case, assuming, as we must, that a warning was required, the controlling question concerns the adequacy of the warning, that is, was it sufficient to apprise the parties of a danger and to enable them to protect themselves against it. If a warning is adequate, then, as noted in Restatement (Second) of Torts section 402A, comment j, at 353 (1965), the product is not in a defective condition, nor is it unreasonably dangerous:

“Where warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous.”

It is hard to believe that any farmer experienced in the use of fertilizer spreaders, as Miller was, would not be well aware of the dangers inherent in putting or permitting an 11-year-old child to be in the hopper of a fertilizer spreader, the sides of which sloped inward, with a rotating agitator and auger in the bottom of the V-shaped bin. But even indulging in this absurd assumption, the warning plainly warned of the danger present. It is not contended that either Miller or the plaintiff did not see the warning on the vehicle or understand the dangers against which it was designed to protect. It is not necessary, as the majority opinion seems to hold, that the precise nature of the dangers be specified. There are any number of different types of injuries that could happen if a person were to ride in the fertilizer spreader. The hopper was 74 inches high. A child riding on a full load of fertilizer could possibly be drawn down into the fertilizer as it was being augered out, and suffocate, an arm or leg could become caught in the moving machinery in the hopper, or one could suffer serious injury by falling on the slippery, sloping sides of the hopper. Certainly, a laundry list of dangers that may be encountered riding in or on the hopper need not be posted. Such a warning would be so detailed as to be meaningless.

The warning required must be sufficient to place a user on guard against the harmful consequences that might result from the use of the product. (Tampa Drug Co. v. Wait (Fla. 1958), 103 So. 2d 603.) Implicit in the duty to warn is the duty to warn with a degree of intensity that would cause a reasonable man to exercise, for his own safety, caution commensurate with the potential danger. (See Annot., 76 A.L.R.2d 9, 37 (1961).) I would hold as a matter of law that the warning “Keep off implement unless seat or platform is provided. Keep others off,” which was attached to the fertilizer spreader, plainly meets these standards of adequacy. If these warnings would have been heeded by Miller or the plaintiff, the injury could not have happened. In my dissent in Thomas v. Kaiser Agricultural Chemicals (1980), 81 Ill. 2d 206, 219, I referred to the New York case of Walk v. J.I. Case Co. (1971), 36 App. Div. 2d 60, 318 N.Y.S.2d 598, in which recovery was barred as a matter of law where the operator of a corn-picking machine was injured while removing husks from the snapping rollers, contrary to instructions printed on a warning plate on the machine cautioning against cleaning the machine while in operation. One cannot violate simple, clear and plainly worded warnings and then recover from the manufacturer for injuries sustained from what must be considered to be an intentional or knowing violation of a warning which, if heeded, would have prevented the injury. (See Restatement (Second) of Torts sec. 402A, comment n, at 356 (1965).) This is not a contributory negligence rationale. Under the authorities cited above, if the warning is adequate, the machine “is not in defective condition, nor is it unreasonably dangerous.” (Restatement (Second) of Torts sec. 402A, comment j, at 353 (1965).) Also, the violation of a plain and adequate warning which, if heeded, would have prevented the injury constitutes an assumption of the risk. Restatement (Second) of of Torts sec. 402A, comment n, at 356 (1965); Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418.

The majority opinion cites the Wisconsin case of Schuh v. Fox River Tractor Co. (1974), 63 Wis. 2d 728, 218 N.W.2d 279, which I have referred to above. In that case the warning given was identical to that part of the warning in our case which I have quoted. However, in the Wisconsin case the location of the warning was such that it was not easily visible and plaintiff testified he had not seen the warning on the machine. Also, in that case there was a lever on the crop blower which the plaintiff thought controlled both the auger in the blower and the blower fan. In fact, the lever only controlled the auger, and the fan remained in operation even though the lever was moved to neutral. In order to make some repairs, plaintiff threw the lever and stood on the edge of the hopper of the crop blower. When he did so, he slipped and was injured by the blower fan, which was still in operation. The court, noting that plaintiff had testified he believed he had shut off the fan when he pulled the lever, held that under the facts of that case the adequacy of the warning was a question of fact for the jury. We have no contention of any misunderstanding or ambiguity, or that the warning had not been seen in our case. I would hold, as a matter of law, that the warning was adequate to inform Miller and the plaintiff of the danger so that they could protect themselves against it, and that the plaintiff is barred from recovery as a matter of law.

I also disagree with the handling of the loan agreement by the majority opinion. I will not needlessly lengthen this dissent by detailing my disagreement. Basically, I find offensive the use of a loan agreement in such a manner as to limit Miller’s liability in this case. He was grossly negligent. I can find no reason within the realm of sanity that would justify an experienced farmer placing an 11-year-old child in such a dangerous position in violation of a clear

warning not to do so. I view this case as a fulfillment of the prophesy of Mr. Justice Schaefer in the dissent in Reese v. Chicago, Burlington & Quincy R.R. Co. (1973), 55 Ill. 2d 356, in which it was stated that the use of the loan agreement tends to throw the entire loss upon the less blameworthy party because the more blameworthy party will be willing to offer more in the pretrial auction for the opportunity to enter into a loan agreement and thus hopefully to escape liability altogether. Reese v. Chicago, Burlington & Quincy R.R. Co. (1973), 55 Ill. 2d 356, 365 (Schaefer, J., dissenting).

For the reasons stated above, I would hold that the plaintiff is not entitled to recover.


author: MR. JUSTICE UNDERWOOD MR. JUSTICE MORAN,

text:
    (No. 52482.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. MICHAEL YOUNG, Appellee.

      Opinion filed October 17, 1980.

      MORAN, J., concurring in part and dissenting in part.
    William J. Scott, Attorney General, of Springfield, and Jordan Gallagher, State’s Attorney, of Sycamore (Donald B. Mackay, Melbourne A. Noel, Jr., Susan M. Sherwin, and Jonathan Strauss, Assistant Attorneys General, of Chicago, and Phillis J. Perko and Jan Tucker-man, of the State’s Attorneys Appellate Service Commission, of Elgin, of counsel), for the People.

      Ralph Ruebner, Deputy Defender, and Richard E. Cunningham, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

We granted the State leave to appeal from an order of the appellate court (76 Ill. App. 3d 210) dismissing its interlocutory appeal from a pretrial order that “suppressed” certain evidence the State intended to introduce at trial. The issue before us is whether our Rule 604(a)(1) (73 Ill. 2d R. 604(a)(1)) permits the State to appeal from a pretrial order excluding evidence on grounds other than that the evidence was obtained as the result of an unlawful search and seizure or an involuntary confession.

The defendant, Michael Young, was charged in the circuit court of De Kalb County with leaving the scene of an accident and driving too fast for conditions in violation of sections 11—401(a) and 11—601(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1977, ch. 9514, pars. 11—401(a), 11—601(a)). The circumstances under which defendant’s report of that accident and statements to the police were made are detailed in the appellate court opinion.

Prior to trial defendant moved “to suppress any statement or report made by defendant Young concerning the accident which is the basis of this prosecution.” Defendant’s motion was based on section 11—401(b) of the Illinois Vehicle Code (Ill. Rev. Stat. 1977, ch. 9514, par. 11—401(b)). Section 11 — 401 provides:

“Sec. 11 — 401. Accidents involving death or personal injuries.
(a) The driver of any vehicle involved in an accident resulting in injury to or death of any person shall immediately stop such vehicle at the scene of such accident, or as close thereto as possible and shall then forthwith return to, and in every event shall remain at, the scene of the accident until he has fulfilled the requirements of Section 11 — 403. Every such stop shall be made without obstructing traffic more than is necessary.
(b) Any person who has failed to stop or to comply with said requirements shall, within 48 hours after such accident, or, if hospitalized and incapacitated from reporting at any time during such period, within 48 hours after being discharged from the hospital, report the place of accident, the date, the approximate time, his name, address, the registration number of the vehicle driven, and the names of the occupants, if any, of such vehicle, at a police station or sheriff’s office near the place where such accident occurred. No report made as required under this Subsection shall be used, directly or indirectly, as a basis for the prosecution of any violation of Subsection (a) of this Section.
(c) Any person failing to comply with Subsection (a) of this Section shall be guilty of a Class A misdemeanor.
(d) Any person failing to comply with Subsection (b) of this Section shall be guilty of a Class 4 felony.”

Defendant contended that the immunity provision embodied in the last sentence of section 11—401(b) precluded the State from using any of the information in the reports against him.

After a hearing on the motion the trial court ordered that “all statements made by defendant Young as required by ch. 9514, sec. 11—401 to 11—416 are suppressed, and the court finds that the statements attributed to defendant Young in the evidentiary hearing were those made pursuant to the requirements of ch. 9514, sec. 11—401 et seq. ” In dismissing the appeal the appellate court reasoned that the decision of this court in People v. Van De Rostyne (1976), 63 Ill. 2d 364, as well as several decisions by the appellate court, indicates that Rule 604(a)(1) authorizes an appeal from an order suppressing evidence only when the evidence was obtained as the result of an unlawful search and seizure or an involuntary confession. (See Ill. Rev. Stat. 1977, ch. 38, pars. 114-11, 114-12).) Since neither of those circumstances was alleged in this case, the appellate court dismissed the appeal.

The extent of the State’s ability to take an appeal in criminal cases has expanded dramatically in the last 50 years. The Illinois Constitution of 1870 accorded the legislature the authority to prescribe the jurisdiction of the appellate courts. (Ill. Const. 1870, art. VI, sec. 11.) In exercising that authority, the legislature decided that “in no criminal case shall the people be allowed an appeal, writ of error or new trial.” (Ill. Rev. Stat. 1874, ch. 38, par. 437.) This remained the rule until 1933, when the legislature allowed the State to appeal from “any order or judgment quashing or setting aside an indictment or information.” (1933 Ill. Laws 465-66, Ill. Rev. Stat. 1933, ch. 38, par. 747.) The scope of permissible appeals was again expanded in 1961 to also allow the State an interlocutory appeal of “any order or judgment quashing an arrest or search warrant or suppressing evidence entered preliminary to trial,” although the State was still precluded from obtaining a new trial. 1961 Ill. Laws 2453, Ill. Rev. Stat. 1961, ch. 38, par. 747.

Shortly thereafter, the 1964 amendments to the judicial article of our 1870 Constitution authorized this court to “provide by rule for appeals to the Appellate Court from other than final judgments of the Circuit Court.” (Ill. Const. 1870, art. VI (1964), sec. 7.) The same amendment also carried forward the provision that “after a trial on the merits in a criminal case, no appeal shall lie from a judgment of acquittal.” (Ill. Const. 1870, art. VI (1964), sec. 7.) Subsequently, this court adopted our Rule 27(4) (28 Ill. 2d R. 27(4)), which provided:

“(4) In criminal cases the State may appeal only from an order or judgment, the substantive effect of which results in dismissing an indictment, information or complaint; arresting judgment because of a defective indictment, information or complaint; quashing an arrest or search warrant; or suppressing evidence. The procedure in appeals by the State shall be as provided in these rules.”

Unlike the 1961 statute, this rule did not purport to limit appeals to pretrial orders. The above-quoted 1964 amendment to the State Constitution and double jeopardy considerations, of course, precluded the State from appealing an acquittal.

The 1970 Constitution confirmed the authority of this court to determine the scope of appeals from other than final judgments. (Ill. Const. 1970, art. VI, sec. 6; see also People v. Taylor (1972), 50 Ill. 2d 136, 139-40.) That authority, of course, remains subject to the limitations of the double jeopardy clauses (U. S. Const, amends. V, XIV; Ill. Const. 1970, art. I, sec. 10). Under that authority this court has carried the contents of former Rule 27(4) into our current Rule 604(a)(1) in substantially unaltered form:

“(1) When State May Appeal. In criminal cases the State may appeal only from an order or judgment the substantative effect of which results in dismissing a charge for any of the grounds enumerated in section 114 — 1 of the Code of Criminal Procedure of 1963; arresting judgment because of a defective indictment, information or complaint; quashing an arrest or search warrant; or suppressing evidence.” 73 Ill. 2d R. 604(a)(1).

Under the 1970 Illinois Constitution, the final authority to prescribe the scope of interlocutory appeals by the State in a criminal case rests exclusively with this court (People v. Taylor (1971), 50 Ill. 2d 136, 139-40), and whether a particular order may be appealed depends solely upon our construction of our Rule 604(a)(1).

The bare language of the rule — “an order or judgment the substantive effect of which results in *** suppressing evidence” — appears to allow an appeal from any order precluding the admission of evidence. The courts of this State, however, have uniformly rejected such a broad interpretation. In its stead they have substituted a variety of rules which confine more narrowly the State’s right to appeal. In People v. Stuckey (1979), 78 Ill. App. 3d 1085, the court held that an order precluding the admission of evidence was appealable whenever the trial court’s decision was based on the desire to deter unacceptable police conduct rather than on an evaluation of the evidentiary value of the proffered items or testimony. In People v. Koch (1973), 15 Ill. App. 3d 386, and People v. Shipp (1968), 96 Ill. App. 2d 364, the courts indicated that the State could appeal whenever an evidentiary ruling had the effect of blocking the prosecution. This rationale seemed to be based more on the language of Rule 604(a)(1) that allows appeal from an order dismissing a case than on the “suppressing evidence” language. In People v. Flatt (1979), 75 Ill. App. 3d 930, vacated and remanded (1980), 82 Ill. 2d 250, the appellate court held that an order suppressing evidence is appealable whenever the order is based on constitutional considerations. The fourth alternative, allowing appeal only when the order excluding evidence is based on the involuntariness of a confession or the illegality of a search and seizure, is predicated primarily on the language of this court’s opinion in People v. Van De Rostyne (1976), 63 Ill. 2d 364.

In Van De Rostyne the defendant was charged with driving while intoxicated. After the jury was impaneled but before any evidence was introduced, the defendant moved to suppress the results of a breathalyzer test on the ground that the test had not been correctly administered in accord with prescribed regulations. The State failed to introduce the instructions for operating the breathalyzer unit, and the trial court granted the motion. After the State indicated its intention to appeal, the trial court declared a mistrial to allow that action. The State then appealed, and, in oral arguments before the appellate court, the defendant conceded that the test had in fact been properly administered.

The appellate court allowed the appeal on the ground that the trial court’s order had the effect of blocking the prosecution. Given the defendant’s concession, the appellate court therefore reversed the trial court’s order. People v. Van De Rostyne (1974), 26 Ill. App. 3d 1048, affd (1976), 63 Ill. 2d 364.

This court affirmed that result, but for substantially different reasons. The Van De Rostyne opinion indicated several considerations relevant to the court’s approach in such cases, but as pointed out in our opinion in People v. Flatt (1980), 82 Ill. 2d 250, the ultimate holding in Van De Rostyne was not predicated on any of those considerations. Rather, the court simply held that defendant had misled the trial judge by labeling his motion a “Motion to Suppress” and should not be allowed to profit by his error. The court did indicate it disfavored grounding the State’s right to appeal under the “suppressing evidence” clause on the effect of the exclusion order on the prosecution because, as the court reasoned, the trial judge is not in a position before hearing the State’s case to determine the effect on the prosecution of excluding a particular piece of evidence. Citing People v. Thady (1971), 133 Ill. App. 2d 795, and People v. Koch (1973), 15 Ill. App. 3d 386, the court also indicated that the “motion to suppress,” the title given by the defendant to his motion, was intended only to reach illegally obtained evidence and that Rule 604 should not be interpreted to allow an interlocutory appeal from every ruling excluding evidence offered by the prosecution. Those expressions, unnecessary to the holding, did influence later appellate court opinions even though the Van De Rostyne court emphasized that the factual situation there was unique.

Several of those appellate court decisions interpreted Van De Rostyne to preclude appeal from orders excluding evidence on grounds other than the illegality of a search and seizure or the involuntariness of a confession regardless of whether the order was made before the trial (People v. Phipps (1979), 79 Ill. App. 3d 532; People v. Eddington (1977), 47 Ill. App. 3d 388; People v. Lara (1976), 44 Ill. App. 3d 116) or during the trial (People v. Jackson (1979), 67 Ill. App. 3d 24; People v. Young (1978), 60 Ill. App. 3d 49). To the extent that these cases have stated a rationale for that rule, they have echoed the observations of Van De Rostyne. To allow the State to appeal from every evidentiary ruling would produce prolonged and disjointed trials. (People v. Jackson (1979), 67 Ill. App. 3d 24.) Moreover, predicating the right of the State to appeal on the effect of an exclusion on the State’s case would impose a heavy burden on the court which had to make that determination. (People v. Lara (1976), 44 Ill. App. 3d 116.) As noted above, other courts have not interpreted Van De Rostyne so narrowly. (People v. Stuckey (1979), 78 Ill. App. 3d 1085; People v. Platt (1979), 75 Ill. App. 3d 930, vacated and remanded (1980), 82 Ill. 2d 250.) In still other cases the court has considered issues on the merits in appeals which would not have been allowed under the narrow intepretation of Van De Rostyne had the defendant raised that question. People v. Kezerian (1979), 77 Ill. 2d 121; People v. Petru (1977), 52 Ill. App. 3d 676.

We do not now disavow the concerns expressed by this court in Van De Rostyne, nor do we disagree with the final disposition of that case. We do believe, however, that the 1970 Constitution, by granting this court the power to define the scope of interlocutory appeals, imposed on us the obligation to evaluate the interests of defendants, the judicial system, and society as a whole in exercising that authority. Our Rule 604 was adopted with that responsibility in mind and must be interpreted accordingly. A construction which mechanically limits exclusionary orders appealable under the “suppressing evidence” clause to those which suppress illegally obtained evidence would, of course, abdicate that responsibility. As earlier indicated, the broad language of Van De Rostyne that suggests such an interpretation was not essential to the disposition of that case. In Van De Rostyne this court was confronted with an appeal from an ongoing trial, and that opinion properly reflected a reluctance to allow such appeals. There are, however, substantial differences in the effects of the pretrial appeal with which we are concerned and the appeal during trial in Van De Rostyne. The broad language which has been interpreted by some appellate courts to limit interlocutory appeals only to suppressions based on the illegality of a search and seizure or the involuntariness of a confession was based not upon an evaluation of the significant differences between pretrial appeals and those during trial but upon the analysis in People v. Thady (1971), 133 Ill. App. 2d 795, of the effect of certain statutes on this court’s ability to regulate appeals, and Thady’s questionable view of the effect of those statutes.

The Thady court grounded its interpretation of Rule 604(a)(1) on the mistaken belief that the ultimate authority for regulating the scope of interlocutory appeals in criminal cases resided m the legislature rather than in this court. That view is not compatible with our present constitution as we pointed out in People v. Jackson (1977), 69 Ill. 2d 252, and People v. Taylor (1971), 50 Ill. 2d 136. In those cases we clearly indicated that the authority of this court to regulate procedure, particularly in the realm of appeals, was supreme. As we indicated above, the 1970 Constitution makes this court the final arbiter of the scope of interlocutory appeals.

In evaluating the interests involved in interlocutory appeals, it is obvious that an innocent defendant in a criminal case has a strong interest in the swift resolution of his case. Even the guilty defendant may well have an interest in avoiding the expense and hardship of an unnecessarily prolonged trial. This interest is reflected to some extent in the speedy trial statute (Ill. Rev. Stat. 1977, ch. 38, par. 103 — 5), although that statute does toll the 120-day limit during the pendency of an interlocutory appeal. The hardship attendant to an interlocutory appeal is diminished to some extent by subsection (a)(3) of Rule 604 (73 Ill. 2d R. 604(a)(3)), which provides that a defendant shall not be held in jail or to bail during such an appeal in the absence of a compelling reason to do so. Too, the defendant’s interests are not affected to the same extent by the appeal of a pretrial order as they are by an appeal which interrupts an ongoing trial. In the former situation the defendant is not subject to the additional strain and expense inherent in recommencing a case after the appeal has been determined. Finally, the defendant’s most vital interests are protected by the double jeopardy clauses.

As the Van De Rostyne opinion acknowledges, our determination of the scope of interlocutory appeals will also affect the orderly functioning of the judicial system. To the extent that interlocutory appeals are allowed, the trial process will be disrupted. The degree of disruption will, of course, be less if the appeal is taken before rather than after the commencement of trial.

In another sense, however, allowing interlocutory appeals may actually enhance the functioning of the judicial system. In the absence of interlocutory appeals, the proscriptions of the double jeopardy clauses would preclude reviewing courts from considering legal issues that would otherwise be raised by the State. Errors favoring defendants would pass uncorrected, while those which favored the State would be rectified. To the extent that such errors remained unreviewed and proliferated at the trial court level, the development of the law would be distorted. Before the adoption of Rule 604’s predecessor, such distortions were particularly problematical in regard to questions involving searches and seizures and confessions because, to ensure the admissibility of evidence, law-enforcement officials had to conform their conduct to standards whose exact requirements could not be determined. (See President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: The Courts 47-48 (1967) (quoted in 3 W. LaFave, Search and Seizure 724-25 (1978)).) The number of suppression orders based on search-and-seizure or involuntary-confession grounds reversed in the years after interlocutory appeal from such orders became available illustrates the value of allowing interlocutory review. (See LaFave, Search and Seizure: “The Course of True Law *** Has Not *** Run Smooth,” 1966 U. Ill. L.F. 255, 387-88.) Many of the factors noted above, as well as the widely differing rules prevailing in this country, are reviewed in the commentary upon section 1.4 of the American Bar Association Standards Relating to Criminal Appeals, pages 34-38 (1970), dealing with prosecution appeals from pretrial orders. The proposed rule in that section closely parallels that adopted here.

Although the need for interlocutory review may be the most pressing in regard to search-and-seizure and involuntary-confession cases, due to the frequency with which those cases arise and the need of law-enforcement agencies for reliable guidelines, similar considerations also indicate the value of allowing interlocutory review of orders suppressing otherwise probative and admissible evidence. In some instances when trial courts erroneously interpret constitutional or statutory provisions to require the suppression of evidence, those rulings will affect the development of police practices. (See, e.g., People v. Jackson (1979), 67 Ill. App. 3d 24.) More importantly and more frequently, however, erroneous exclusionary rulings frustrate the primary purpose of the trial: to ascertain the truth of the charges. Social policies embodied in statutory or constitutional provisions may justify encumbering the fact-ascertaining process, but the exclusion of otherwise probative and admissible evidence based solely upon an incorrect interpretation of those provisions serves neither the policy represented by the provision nor the public’s interest in an accurate resolution of the factual questions involved in the litigation. Permitting such decisions to escape review encourages their proliferation and denies trial courts desirable guidance. Allowing interlocutory review ensures proper application of the governing rules and at the same time protects the ability of the trial court to determine the truth of the factual allegations involved.

Finally, the interests of society in general, as represented by the State in criminal prosecutions, must be considered in construing Rule 604(a)(1). The State’s interest is twofold. In the first instance the State must seek in each individual case to introduce all the probative and admissible evidence at its disposal. Refusing to allow interlocutory appeal from orders suppressing admissible evidence may seriously impair the State’s ability to present its case. Society also has a broader, secondary interest in the coherent development of the law. As we noted above, without the guidance and uniformity imposed by reviewing courts, erroneous interpretations and rulings may proliferate at the trial court level. That proliferation is particularly troublesome when it is based on extrapolations from the statements or reasoning in prior appellate decisions which are interpreted to compel results in different circumstances which the prior appellate decision did not contemplate. In the absence of appeal, the reviewing court may have no opportunity to clarify its earlier decisions. (See LaFave, Search and Seizure: “The Court of True Law *** Has Not *** Run Smooth,” 1966 U. Ill. L.F. 255, 388.) The denial of review in a particular case may thus affect not only the ability of the State to prosecute a particular case but also its ability to prosecute similar cases in the future. See ABA Standards, Criminal Appeals sec. 1.4, Commentary, at 38(1970).

After weighing these considerations, we conclude that the State should be allowed to appeal from a pretrial suppression order which substantially impairs its ability to prosecute the case involved. To the extent that Van De Rostyne may be read to the contrary it is overruled. The difficulties posed by allowing such appeals, we believe, are outweighed by the need to ensure the accurate interpretation of constitutional and statutory provisions and to protect the ability of the trial process to ascertain the truth of the factual allegations involved in a criminal trial. Pretrial appeals would not be necessary to the realization of these goals if the double jeopardy clauses did not prohibit the retrial of a defendant after an acquittal. Since they do, however, we believe our holding best accommodates the interests of defendants, the judicial system, and society as a whole.

We hold, therefore, that Rule 604(a)(1) allows an interlocutory appeal by the State of a pretrial suppression order whenever the prosecutor certifies to the trial court that the suppression substantially impairs the State’s ability to prosecute the case. Our intention in requiring this certification is not to formulate a standard by which courts may determine the appealability of a particular order. As this court noted in Van De Rostyne, that would indeed be a heavy burden, one which we do not believe justified by the marginal diminution in the number of appeals which we anticipate such a procedure would produce. Instead we rely solely upon the good-faith evaluation by the prosecutor of the impact of the suppression order on his case. We are not unmindful that in the heat of the adversarial process a State’s Attorney may attach to a suppression order a degree of significance which a less involved evaluator would not accord it. On the whole, however, we believe that the State’s need to allocate its heavily taxed resources in the most productive manner will naturally limit appeals to those orders which substantially impair its ability to prosecute its case. The prevention of those few appeals which constitute exceptions to this general rule does not, in our judgment, justify the expenditure of the judicial resources necessary to evaluate the effect of the suppression in every instance.

The practicality of this approach is supported by the Federal procedure. The Federal rule is:

“An appeal by the United States shall lie to a court of appeals from a decision or order of a district courts [sic] suppressing or excluding evidence or requiring the return of seized property in a criminal proceeding, not made after the defendant has been put in jeopardy and before the verdict or finding on an indictment or information, if the United States attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.” (18 U.S.C. sec. 3731 (1976).)

The intent of this provision, as stated by the United States Supreme Court in United States v. Helstocki (1979), 442 U.S. 477, 487 n.6, 61 L. Ed. 2d 12, 22 n.6, 99 S. Ct. 2432, 2439, n.6, was to allow any appeal not inconsistent with the double jeopardy clause. Our review of the Federal cases under this provision has not revealed any attempt to limit that breadth by evaluating the validity of the prosecutor’s certification. In fact, in United States v. Comiskey (7th Cir. 1972), 460 F.2d 1293, 1297-98, the court held that a mere recital of the statutory language in the certification without the allegation of an evidentiary basis is sufficient. As we indicated above, the State’s need to employ its prosecutorial resources in the most productive manner should be sufficient in most instances to prevent appeal from insignificant orders. The Federal practice also implicity relies on that natural selection process.

The certification requirement we have stated is effective immediately. For any case currently in the appellate process, however, it is waived. Accordingly, we vacate the order of the appellate court dismissing the appeal and remand the cause to that court for an evaluation of the merits of the appeal.

Vacated and remanded.

MR. JUSTICE MORAN,

concurring in part and dissenting in part:

I concur in the judgment that allows the State to appeal a pretrial suppression order; however, I dissent from the procedure adopted in accomplishing this result.

By today’s ruling, the State, in its sole discretion and as a matter of right, will be allowed to appeal any pretrial suppression order whenever the prosecutor certifies to the trial court that such order substantially impairs the State’s ability to further prosecute its case. In doing so, the court has intentionally and expressly refused to adopt any objective standard or define the term “substantial impairment.”

Instead, the majority relies upon (1) the good-faith evaluation of the prosecutor and (2) the State’s need to allocate its heavily taxed resources as the only deterrent against possible abuse of discretion on the part of the prosecutor.

Contrary to the beliefs and assumptions expressed in the opinion that only a minimal number of appeals by certification will be forthcoming, I foresee an upsurge in frivolous appeals being added to the voluminous case load presently pending in each district of the appellate court.

To guard against the possibility of any abuse of discretion on the part of the State, I would propose that the prosecutor petition the appellate court for leave to appeal in the same manner employed under Rule 306 in civil cases. This procedure would require the State to divulge the reason or reasons as to why the suppression order substantially impairs its ability to proceed in prosecution of a case.

Petitions under Rule 306 are promptly acted upon by the appellate court. In those instances where the State is unable to establish that the suppression order creates a substantial impairment, the petition would be denied and trial of the case thereby hastened.