author: PRESIDING JUSTICE SULLIVAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH RICE, Defendant-Appellant.
    First District (5th Division)
    No. 80 — 1525
    Opinion filed July 30, 1982.

      Steven Clark and Kenneth L. Jones, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David A. Shapiro, and Marie Quinlivan, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

After a jury trial, defendant was convicted of murder and given a 25-year sentence. On appeal, defendant contends that (1) he was entitled to a hearing on his motion for substitution of judges; (2) he was prejudiced because of the delayed production of statements by the State and because the court permitted the State to add a name to its list of witnesses; (3) the court erred in instructing the jury on felony murder and in failing to do so on the lesser included offense of voluntary manslaughter; and (4) he was not proved guilty beyond a reasonable doubt.

Prior to trial, the court granted a defense motion for substitution of judges and, after the cause was transferred to another judge, a second such motion was denied without a hearing.

At trial, Leroy Fleming testified that he, his brother Anthony (deceased), James Terrell, and Mark Cannon drove to Merrill Park in Terrell’s Buick 225 to “smoke some reefer and drink beer”; that at the park Anthony was sitting in the front passenger seat and he (Fleming) was behind him, Terrell was at the wheel, and Cannon was in the back seat behind Terrell; that Vincent Moore and another man (Jeff) also went to the park and were in the car parked next to them; that they passed around a joint and, after 10 or 20 minutes, defendant — whom he had known for 3 to 5 years — approached from the rear of the car, opened the door, leaned in, and shot Anthony in the head with a revolver; and that no words had been exchanged prior to the shooting. Fleming said that defendant then ordered him out of the car at gunpoint and told him to lie on the ground; that Terrell later drove away, after telling him to take Anthony out of the car; that he and Anthony then laid in the snow until the police arrived; that the police took his brother to the hospital, and he went with them; that later, at the police station, he told the officers that a man named Ken had shot his brother; and that the next morning he went with the officers when they arrested defendant.

On cross-examination, Fleming stated that he had not known Vincent Moore prior to that day but he had known Jeff for about one year. He denied telling the police that two men had approached the car before the shooting and denied that he and Anthony had gone to the park to rob anyone. He admitted that in the statement he gave the police he did not state that defendant had leaned into the car when he shot deceased.

Police officer Barrett testified in pertinent part that on the evening of the shooting, she and a partner went to Merrill Park in response to a call, and that upon her arrival she saw deceased in the front seat of a car with what appeared to be a bullet wound in his forehead.

Investigator Manella testified that after the occurrence Fleming told him that he was in a car with his brother and two other persons when his brother was shot by a man named Ken, and that the next day Fleming went with him and other officers to arrest defendant. Investigator Corless testified that when he searched Terrell’s car, he saw no blood but noticed that it appeared to have been recently cleaned. Officers Corless and Manella both testified that during questioning at the station, defendant told them that while he was standing next to a green Buick in Merrill Park talking to deceased, who was seated in the car, the latter displayed a weapon and began waving it around; that he told deceased to put the gun away, but he did not; and that in the ensuing struggle the weapon discharged, wounding deceased in the head.

Dr. Malak, who performed an autopsy on deceased, stated that he had a gunshot wound to the forehead between the eyes; that there was gunpowder around the wound indicating a very close range gunshot; that the autopsy four days later disclosed no gunpowder residue or evidence of an imprint of a tool or weapon on deceased’s hands; and that washing of the hands, a lapse of time, and the type of ammunition used could affect the results of his test to determine whether a person had used a gun.

Eric Moore testified that on the night of the shooting he was in a game room with Donald Gatewood, Rory Green, Anthony Fleming, and a man named James; that Gatewood suggested they commit a robbery in Merrill Park, and he went there with Gatewood, Green, and defendant; that he, Gatewood, and Green had guns; that at the park he noticed two cars side by side — one a white Grand Prix to his left, and the other a green Buick to his right; that after they approached the cars from the rear, Green went to the driver’s side of the white car; that he and Gatewood stood between the cars, and he thought that defendant went to the passenger side of the green car, which had four people in it; that after Gatewood opened the passenger door of the white car, he (Moore) heard a gunshot; that at this point defendant was on the passenger side of the green car; that he then walked around the green car and saw a man partly in and partly out of the car with his face in the snow; that people started getting out of the green car, and he heard Leroy Fleming scream, “You shot my brother”; and that, as he ran from the scene, Gatewood, Green, and defendant caught up with him.

On cross-examination, Moore admitted that he pleaded guilty to a charge of attempted armed robbery in connection with this case and was given six months in custody with two years’ probation; and that, in a statement he gave police following his arrest, he did not mention either having gone to the other side of the Buick, having seen a person lying in the snow, or having seen defendant standing a few feet from the body lying in the snow. He also said that he went to the park to rob Vincent Moore and that deceased knew of the planned robbery.

Donald Gatewood testified that he was at the game room with Eric Moore when Green and defendant came in; that he and Green both had guns; that after leaving the game room they went to a bowling alley and a-liquor store and then he and Eric Moore walked to Merrill Park followed by Green and defendant; that when he arrived at the park he saw two cars parked next to each other; that he walked between the cars and told one of the people in the Grand Prix to roll down the window, and while pointing a gun at the man in the passenger seat he asked where the “reefer” was; that while his head was in the car he heard a shot and then someone said, “You shot my brother”; that he walked around to the passenger side of the green car and saw a person lying half in and half out of the green car with his head in the snow; that he knew it was deceased; that he and Eric Moore then left the scene; and that he subsequently pleaded guilty to his involvement and was given six months in the UDIS program with two years’ probation.

On cross-examination, Gatewood stated that deceased, Cannon, and Jeff Clark were a part of the armed robbery plan; that Clark was one of the men in the white Grand Prix; that he had obtained his gun from Eric Moore; and that Vincent Moore was the intended victim of the robbery.

Rory Green testified that he was currently charged with the murder of deceased; that he was at the game room when defendant asked to borrow his gun to use in a robbery; that he gave him the gun and then left the game room with him, Gatewood, and Eric Moore; that they walked to the park intending rob Vincent Moore; that he went to the driver’s side of Moore’s car and while there he heard a gunshot but, seeing nothing unusual, he proceeded to rob Moore of $150 and his wallet; that he then ran out of the park and, about a block away, met defendant, who told him he had shot someone by accident; that defendant handed him the gun he had given to him earlier and told him to wipe off the fingerprints; that he then went to Bruce Davis’ house, where he hid the gun in some bushes in the backyard of the house next door; that he kept the money he had taken but gave the wallet to the police; and that two days later he took the police to where he had hidden the gun, but it was not there.

On cross-examination, after admitting that he expected leniency from prosecution for testifying against defendant, he said that he, Clark, Cannon, Terrell, Fleming, and deceased were all involved in the robbery; that defendant told him Vincent Moore would have marijuana and about $1,000; and that when the police first questioned him about the incident, he said he did not have anything to do with it and knew nothing about a gun.

An assistant pastor who had known defendant’s family for 16 years testified that defendant had a reputation in the community as a peaceful and law-abiding citizen.

Defendant testified that he had been to the game room and then went to a bowling alley that night, but was on his way to his girl friend’s house and as he approached Merrill Park he met Eric Moore, Gatewood, and Green; that when he entered the park he saw Terrell’s car and another vehicle parked there; that Terrell was his sister’s fiance and, as he approached the passenger side of Terrell’s Buick, he saw deceased get out of the car and when he inquired about Terrell, deceased told him to “get the f---away from there”; that when he asked what was happening, deceased pulled out a gun, pointed it at him, and mumbled something about giving him some money; that he smelled alcohol on deceased’s breath, and he appeared to be high; that he knew deceased had been previously charged with armed robbery involving a shooting; that during a struggle with him the gun went off, and he ran from the scene; and that he did not have a gun and had not been part of any armed robbery plan.

Approximately one week after the start of trial, the State tendered to defense counsel statements from Gatewood and Eric Moore, and defendant moved to have the witnesses excluded on grounds that he was prejudiced due to the State’s failure to comply with rules of discovery. The court, in denying the motion, granted defendant a two-day continuance for further trial preparation. Later, the court allowed the State leave to amend its list of witnesses to also include Green.

Opinion

Defendant first contends that the trial court erred in denying his motion for substitution of judges without a hearing. Section 114 — 5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 114 — 5(a)) provides that after a case involving only one defendant is placed with a trial judge, the defendant may move for a substitution of that judge “on the ground that such judge *** [is] so prejudiced against him that he cannot receive a fair trial.” Section 114 — 5(c) provides that a defendant may also “move at any time for substitution of judge for cause, supported by affidavit” and that “the court shall conduct a hearing and determine the merits of the motion.” Ill. Rev. Stat. 1977, ch. 38, par. 114 — 5(c).

Defendant filed two motions for substitution of judges — the first under subsection (a), which was granted; the second, filed after the case was reassigned to Judge Palmer, which was denied without a hearing.

Defendant admits in his brief that he was entitled to only one automatic substitution of judges under subsection (a) (see In re Stiff (1975), 32 Ill. App. 3d 971, 336 N.E.2d 619) and, since his second motion specifically states that it also was brought under subsection (a), it appears to have been properly denied by the trial court. Defendant nevertheless suggests that the allegations in the second motion were such as to require a hearing provided for in subsection (c). We disagree.

Under subsection (c) a defendant must show cause supported by affidavit (see People v. Covington (1981), 92 Ill. App. 3d 598, 416 N.E.2d 61; People v. Evans (1979), 75 Ill. App. 3d 949, 394 N.E.2d 710), and it is clear that the second motion of defendant here makes only the conclusionary statement, unsupported by affidavit, that Judge Palmer and one other judge were prejudiced against him. Accordingly, we find no error in the denial of defendant’s second motion for substitution.

Defendant also asserts he was denied a fair trial because the court permitted the State to add, during trial, the name of a codefendant to its list of witnesses and because the State failed to produce the statements of two of its witnesses until after the trial commenced. Defendant argues that the court should have excluded testimony from those witnesses.

It is within the discretion of the trial court to permit an unlisted witness to testify where the State has not fully complied with pretrial discovery requests, and absent a showing of surprise of prejudice, the court’s determination to admit the testimony is not error. People v. Richard (1980), 88 Ill. App. 3d 247, 410 N.E.2d 459; People v. Kirkwood (1980), 82 Ill. App. 3d 252, 402 N.E.2d 677.

In the instant case, eight days after the trial commenced the State was permitted to amend its witness list to include Green, who was originally listed in the caption as a codefendant but whose case had been severed. It appears that defendant was aware from the first day of trial that the State intended to call Green as a rebuttal witness and that his statement had been delivered to defendant. Thereafter, the State moved to amend its list of witnesses to include Green when it learned that one of its witnesses would not be testifying to what he had previously told the State. Following an objection to the inclusion of Green’s name, defendant’s counsel was asked by the court how much time would be needed to talk with the witness and for further trial preparation — to which counsel replied, “Judge, I don’t think I need that much time to prepare to cross-examine this witness.” The court then granted a one-day continuance and arranged for him to interview Green the following day.

Defendant’s allegations of surprise and prejudice are based solely upon the need to replan his defense, but it is our belief that the court’s actions were sufficient to overcome any surprise or prejudice. Defendant was asked by the court how much time he needed for further preparation, and defendant does not argue here that the one-day continuance was insufficient to conduct any additional investigation believed necessary. Moreover, not only was no request made for more time by defendant, but the trial court also arranged for an interview with Green. In the light thereof, the trial court did not err either in allowing the State to add Green to its list of witnesses or in permitting his testimony.

Neither was there prejudicial error in the court’s refusal to exclude the testimony of Gatewood and Eric Moore because their statements were not produced by the State until after the trial commenced. In its answer to discovery, the State listed both as potential witnesses, indicating that their written statements were available for copying. On the first day of trial, defense counsel asked whether there was any additional discovery material, to which the State replied negatively. At that time, however, it appears that the State intended to call Moore as a rebuttal witness and not to call Gatewood, but a few days later the State decided to call both after learning that one of its key witnesses who arrived from out-of-town no longer could recall any details of the occurrence.The State then handed defense counsel copies of the statements of Gatewood and Eric Moore, and the court granted a one-day continuance to permit defense counsel to interview them with no additional time requested by him. Under the circumstances, we see no prejudice to defendant in admitting the testimony of those witnesses.

We next consider whether the court erred in failing to instruct the jury sua sponte on voluntary manslaughter. It is a well accepted principle that in a murder prosecution where there is evidence which would permit the jury to find the defendant guilty of manslaughter, the failure to give an instruction thereon, if tendered, is reversible error. (People v. Simpson (1978), 74 Ill. 2d 497, 384 N.E.2d 373.) However, a party may not raise on appeal the failure to give an instruction unless he tenders it at trial (People v. Tannenbaum (1980), 82 Ill. 2d 177, 415 N.E.2d 1027), and an issue not raised in a post-trial motion is waived for appellate review (People v. Foster (1979), 76 Ill. 2d 365, 392 N.E.2d 6).

Defendant refers us to no case holding that a trial court in a murder prosecution should instruct sua sponte on the lesser included offense of voluntary manslaughter. The cases principally relied upon by him do not support hiss position in this regard, in People v. Pernell (1979) , 72 Ill. App. 3d 664, 391 N.E.2d 85, this court invoked an exception to the waiver doctrine, holding that in certain circumstances where self-defense is raised in a murder case and no instruction is tendered thereon, the court must give the appropriate instruction on self-defense. In the case before us, the jury was instructed on self-defense. In People v. Lockett (1980), 82 Ill. 2d 546, 413 N.E.2d 378, a voluntary manslaughter instruction was tendered and refused with the court finding that because the claim of self-defense had support in the evidence, the tendered instruction should have been given. Here, no instruction on voluntary manslaughter was tendered, and since the omission thereof was not raised in defendant’s post-trial motion, any error in the failure to give it is waived. See People v. Tannenbaum (1980) , 82 Ill. 2d 177, 415 N.E.2d 1027.

Moreover, it is our view that the proof did not support a voluntary manslaughter instruction. Section 9 — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 2) provides in pertinent part that a person commits voluntary manslaughter where (a) he kills without lawful justification if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by the individual killed or (b) he intentionally or knowingly kills an individual if at the time of the killing he believes the circumstances would justify or exonerate the killing, but his belief is unreasonable.

Here, there was no evidence to support a voluntary manslaughter instruction under either (a) or (b). The State presented testimony that defendant opened the car door, leaned in, and without saying anything shot deceased. It was defendant’s testimony that as he approached the car, deceased jumped out and, while he struggled with him over the gun, it discharged. It was thus his position that he was acting in self-defense when the gun accidentally discharged.

We turn then to the contention of defendant that “in the absence of any evidence that the killing *** was committed in furtherance of an armed robbery, it was improper for the court to instruct the jury as to the felony murder.”

At the close of the State’s case, the court directed an acquittal on a count charging defendant with the armed robbery of deceased. At that time, the State agreed that there was no evidence to support that charge. Thereafter, at the close of all the evidence, the court-over objection — included instructions as to felony murder with the underlying offense of armed robbery, and defendant maintains that “the State offered no evidence to establish that deceased was killed as part of an armed robbery, or that the shooting was done in furtherance of an attempt to complete an armed robbery.” We disagree.

It is established that a reviewing court does not weigh the evidence in determining whether an instruction was proper on a certain theory and that slight evidence thereon will justify the giving of an instruction. People v. Kalpak (1957), 10 Ill. 2d 411, 140 N.E.2d 726; People v. Walters (1979), 69 Ill. App. 3d 906, 387 N.E.2d 1230.

In the case before us, Eric Moore testified that on the night in question he, Gatewood, and Green had guns but that he gave his to defendant, who had asked to borrow it for use in a robbery. Moore, Gatewood, and Green all stated that they went to the park with defendant for the purpose of robbing Vincent Moore; that defendant had told Green that Vincent Moore had marijuana and $1,000; that the four of them approached the two parked cars from the rear; that Green went to the driver’s side of the Grand Prix where Vincent Moore was seated; that Gatewood and Eric Moore walked between the cars; and that defendant approached the passenger side of the Buick. Gatewood testified also that he had pointed his gun at the passenger in the Grand Prix, told him to roll down the window, and then heard a gunshot. Green testified also that he heard the shot but he nevertheless took $150 from Vincent Moore.

While defendant states that he did not intend nor have anything to do with the plan to rob Vincent Moore, considering the testimony of the other witnesses the jury might have believed that he was a participant and that he had approached the Buick to make certain that there would be no interference with the robbery of Vincent Moore. In any event, we believe that the evidence as set forth above was sufficient to justify giving the instruction as to felony murder.

Defendant additionally argues that the felony murder theory does not apply to a situation where the victim is one of the participants in the forcible felony. In support of this position, he cites People v. Morris (1971), 1 Ill. App. 3d 566, 274 N.E.2d 898, which we find not to be controlling. In Morris, it was held that since a co-felon was justifiably killed by an innocent party during the commission of an armed robbery, the felony murder theory did not apply to the surviving co-felon — the court’s rationale being that the death of the co-felon occurred during a struggle with an innocent third party, which was not an action done in furtherance of the armed robbery. Here, unlike Morris, the record does not permit a finding that defendant’s actions were justifiable or that he was an innocent party to the armed robbery of Vincent Moore.

Defendant finally contends that he was not proved guilty beyond a reasonable doubt, arguing essentially that the testimony of the State’s witnesses was suspect, that there was no credible evidence contradicting his self-defense testimony, and that there was no physical evidence in conflict with his version of the shooting. It is the jury’s function to determine the credibility of witnesses, the weight to be given their testimony, and the inferences to be drawn therefrom, and the jury’s determination of guilt will not be disturbed on review unless the evidence is so improbable as to raise a reasonable doubt thereof. (People v. Cepolski (1979), 79 Ill. App. 3d 230, 398 N.E.2d 351.) Although an accused presents evidence to the contrary, the testimony of a single witness, if positive and credible, is sufficient to support a conviction (People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313, cert, denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.), and a witness’ use of drugs at the time of the incident does not, in itself, require that the witness’ testimony be rejected (People v. Cepolski (1979), 79 Ill. App. 3d 230, 398 N.E.2d 351). It is true, however, that where the defendant raises the affirmative defense of self-defense, the State must prove beyond a reasonable doubt — in addition to the elements of the offense — that the defendant did not act in self-defense. People v. Warren (1965), 33 Ill. 2d 168, 210 N.E.2d 507; People v. Seiber (1979), 76 Ill. App. 3d 9, 394 N.E.2d 1044; People v. Liddell (1975), 32 Ill. App. 3d 828, 336 N.E.2d 815.

In the instant case, Leroy Fleming, an eyewitness to the shooting, testified that he was sitting in the back seat of the car behind deceased when defendant, whom he had known for several years, approached from the rear of the car, leaned in and shot deceased in the head with a revolver, and that no words had been exchanged between deceased and defendant. His testimony that deceased was still in the car at the time of the shooting was corroborated by Officer Barrett, who testified that when she arrived deceased was unconscious on the passenger side of the front seat with a bullet in his forehead, and by Gatewood and Eric Moore, who testified that after he was shot deceased was lying partly in and partly out of the car.

Defendant’s testimony differs from that of the State’s witnesses. While he admitted being in the game room with Eric Moore, Gate-wood, and Green, he said that he left there, went to a bowling alley for a short time, and was on his way to his girl friend’s house when he saw those three persons as he entered the park; that they were walking behind him at the time, and that after he entered he saw Terrell’s Buick; that he had to walk a block in the park to reach the Buick and, as he approached it from the passenger side, the deceased got out; that when he made inquiry concerning Terrell, deceased told him to leave and then pulled out a gun; that during a struggle over the gun, it went off with the bullet striking deceased in the head. While defendant denied having a gun and denied any involvement in any robbery plan, Eric Moore said defendant had borrowed his gun that day to use in a robbery and he, Gatewood, and Green testified that defendant went with them to rob Vincent Moore.

It is our belief, therefore, that the evidence is not so improbable as to raise a reasonable doubt as to defendant’s guilt. Although Leroy Fleming was the only eyewitness to the shooting, there is corroboration of his testimony that defendant was shot in the car, rather than during a struggle outside the car as stated by defendant, and it is our view the evidence supports the conviction notwithstanding the contradictory testimony of defendant. While Fleming might have been high on alcohol and marijuana at the time of the shooting, his testimony need not be rejected solely on that basis — particularly in light of the fact that aspects of his testimony were corroborated to some extent by Eric Moore,Gatewood, Green, and Officer Barrett.

Moreover, we also believe the evidence as outlined above was such that the jury could have concluded that the defendant was the aggressor rather than acting in self-defense. (See People v. Seiber (1979), 76 Ill. App. 3d 9, 394 N.E.2d 1044; People v. Liddell (1975), 32 Ill. App. 3d 828, 336 N.E.2d 815.) Finally, while defendant argues that because there was no physical evidence conflicting with his version of the shooting since no blood was found in the Buick, and because Officer Corless did not know whether Leroy Fleming’s clothes were wet although he said he was lying in the snow for some time, we note that Officer Manella stated that he did not remember whether there was any blood in the Buick and that the Buick appeared to have been recently cleaned, and that Officer Corless stated he did not recall the appearance of Fleming’s clothing.

Accordingly, the judgment appealed from is affirmed.

Affirmed.

MEJDA and WILSON, JJ., concur.

       Another indictment for armed robbery was dismissed at the close of the State’s case.

      Illinois Pattern Jury Instruction, Criminal, No. 7.01 (1968) (hereinafter IPI) 7.01 with “forcible felony” inserted in subsection 4, IPI Criminal 7.02 with “armed robbery” inserted in subsection 4, and IPI Criminal 14.01 defining armed robbery.


source: Caselaw Access Project

author: JUSTICE HEIPLE PRESIDING JUSTICE BARRY,

license: Public Domain

text:
    SAMUEL ROY BROUSSARD, a Minor, by Hollis Eugene Broussard, his Father and Next Friend, Plaintiff-Appellee, v. HUFFMAN MANUFACTURING COMPANY, a/k/a Huffy, Inc., et al., Defendants-Appellants.—(INTERNATIONAL MACHINES & TOOL, INC., Defendant.)
    Third District
    No. 81 — 160
    Opinion filed July 14, 1982.
    Modified on denial of rehearing September 9, 1982.

      BARRY, P. J., dissenting.
    Barry L. Kroll, of Jacobs, Williams & Montgomery, Ltd., of Chicago, for appellant National Can Company.
    Richard G. French, of French and Rogers, of Chicago, for appellant Huffman Manufacturing Company.
    Richard T. Buck and Theodore J. Jarz, both of McKeown, Fitzgerald, Zollner, Buck, Sangmeister & Hutchison, of Joliet, for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

This is an appeal from a judgment entered by the circuit court of Will County on jury verdict in favor of the 15-year-old plaintiff, Sam Broussard. The original suit was brought by Sam’s father and next friend, Hollis Eugene Broussard, to recover damages for injuries sustained by Sam in a gasoline fire in the family garage. The suit sounded in products liability and alleged that the gasoline can involved in the fire was unreasonably dangerous in a way which proximately caused Sam’s injuries. The defendants were the parties who designed, manufactured and distributed the can and its component parts.

The gasoline can in question was sold to Sam’s father by defendant Hornsby’s Store. The can was assembled and distributed by Huffman Manufacturing Company (Huffy). Huffy bought the can body from defendant National Can Company (National Can). At the time the can was bought by Huffy, National Can had a threaded neck soldered to the top plate of the can and had a handle soldered to that top plate as well. The threaded neck was manufactured by defendant International Machine and Tool Works (International). At the time of purchase by Huffy, the gas can was incomplete in that there are two openings made by National Can in the top plate: one large one for the screw-on spout assembly to which the neck had already been soldered and one small opening for the insertion of a pressed-in plastic vent cap known as a “poly-vent.” The purpose of the poly-vent is to relieve vacuum inside of the can. Huffy manufactured the screw-on nozzle assembly from two caps soldered back to back with a hole punched in the center where a flexible nozzle is attached. The two screw-on caps are manufactured by International for a variety of purposes. A closing plug, designed to screw in the end of the nozzle opposite the spout was also made by International. This closing plug was used in the assembling process by Huffy to close the can when the nozzle was inserted, nozzle down in the can. The can is sold for storage and transportation of up to two gallons of gasoline.

Following a jury trial, a verdict of not guilty was rendered in favor of the neck and cap manufacturer, defendant International, while a verdict of guilty was returned against defendants Hornsby’s Store, Huffy and National Can in the amount of $1,350,000.

Defendants Huffy, Hornsby’s Store, and National Can appeal alleging numerous trial errors. They also contend that there is no probative evidence in the record to support the verdict or, in alternative, that the verdict was contrary to the manifest weight of the evidence.

On April 12, 1977, the plaintiff Sam Broussard was 12 years old. On that day he returned home early from visiting a friend. He found no one home and the house locked. He opened the overhead door to the garage of his house and decided to wait in there until someone came home. Soon thereafter a tragic fire occurred in the garage whereby Sam sustained second and third degree burns over his face, neck, trunk, chest, back, and arms. The burns were caused by a gasoline fire. The origin of this fire is a matter of dispute between the parties. The gasoline which burned had been contained in a two-gallon gasoline can which Sam’s father had purchased seven months earlier from defendant Hornsby’s Store. The gasoline can had been kept in the garage and was used to transport gasoline to his home for use in his lawn mower.

There appears to be no dispute that the gasoline can designed, manufactured and sold by the defendants, was one instrumentality of the fire. The issue in the cause is whether the can was unreasonably dangerous, and if so, whether that condition was the proximate cause of the fire injuries received by Sam.

The initial point of contention between the parties is what factually occurred when Sam returned home around noon on April 12, 1977. Sam Broussard testified that it was a hot day, in the low 90’s, and that he arrived home around noon from spending the morning at a friend’s house. He found the house locked and went into the garage to wait for someone to come home. He closed the door behind him. He amused himself by teasing his pet dog with its bone. The dog began chasing Sam. Around in circles they chased, still confined to the garage. The playing continued for about 20 minutes when Sam, looking back over his shoulder at his dog chasing him, ran into the subject gasoline can and tripped on it. According to Sam, the gasoline can slid about five feet “and then gasoline came out and it just exploded, like woof, like that.” He testified that when he kicked the can, the cap was on, but after so doing he looked back and knew the lid was off because he saw gasoline coming out. Sam said that gasoline was coming out of the can as it was sliding even before it started to tip. Sam testifed that it just started on fire “like when it was halfway out of the can.” He did not know how the gasoline caught on fire. He didn’t see anything that started it.

The plaintiff alleged several product defects: (1) the can was designed so that it was unstable. This allegedly contributed to spillage when being kicked by Sam; (2) the poly-vent cap was defectively designed and manufactured in that the poly-vent cap did not have adequate provisions for venting internal pressures and would not close itself once it popped open; (3) the cap was defective in that the nozzle assembly had an unsafe closing device. This “unsafe closing device” allegedly permitted gasoline spillage when Sam kicked the can approximately five feet; (4) the neck component lacked a sufficient number of threads to permit adequate closing of the cap onto the threaded neck; (5) the neck component was also unsafe due to a manufacturing defect: a globule of solder on the neck threads which impeded proper can closure. Against defendant Hornsby’s Store, the plaintiff asserted the sale of a product, a gasoline can, with an unsafe closing device, an unsafe venting device, and an unstable body.

The defendants claim that it was scientifically impossible for the incident to have occurred as Sam testified. Also, defendants assert various circumstantial and scientific facts impeach both Sam’s testimony and his credibility. Further, defendants introduced the testimony of a fellow hospital patient with Sam who testified that Sam told him that he, Sam, was working on a wood project and accidentally dropped a match in or near the gasoline can.

The basic product defect responses varied according to each defendant. Defendant International contended that the threads on the neck were safe; if properly closed, it would fully seal in the cap. Defendant National Can contended that the can was sufficiently stable for normal circumstances. National Can further contended that there was no solder on the neck of the can when it left its possession. National Can demonstrated through expert testimony that the solder drop formed on the threads as a result of the fire.

Even assuming that one of the aforementioned alleged defects contributed to the spillage of gasoline when being kicked five feet, all defendants asserted that the release of the gasoline alone did not produce a fire. An ignition source was needed to create the fire. The defendants assert the ignition of a fire, by whatever means the laws of science allow, is an intervening cause rendering any allegedly defective condition of the can only a prior condition to, but not a proximate cause of, the subsequent fire.

In our scrutiny of the record we find that the probative evidence fails to support the jury’s verdict against the defendants.

In addition to his own testimony about the accident, the plaintiff introduced the testimony of several persons. The plaintiff’s father, Hollis Eugene Broussard, testified the cap on the can would not always screw on completely and the vent cap would sometimes pop open on warm days and after gasoline was poured into the can. On the evening before the accident, Hollis Eugene Broussard used the gasoline can twice to refill his lawn mower. The last time he used it, he was sure that he closed the cap on the can securely and placed the can in the garage in the corner. He did not recall any trouble closing the cap that evening. The yellow plastic poly-vent was closed. The flexible pour spout was placed back inside the can. He further stated that some gasoline remained in the can, perhaps a gallon.

The plaintiff’s evidence regarding the alleged unreasonably dangerous condition of the can, as well as causation, came from the testimony of Mr. Fred Schwartz, whom the plaintiff presented as an expert.

Schwartz testified generally as to design consideration for containers of hazardous substances. He stated that all of his design criteria pertained to two-gallon gasoline cans. He testified that gasoline is classified by the Federal Department of Transportation as a hazardous substance.

During his two days of testimony, Schwartz examined the subject gasoline can. He gave his opinion that it was unreasonably dangerous with regard to “closure integrity,” stating that the number of threads on the neck of the nozzle closure needed to be increased. Presently, the cap only required one-half turn. His design recommendation was to increase the threads so that three or four turns would be required to close the can.

Schwartz also testified that a drop of solder present on the threads affected the turning and force needed to turn the nozzle to the closed position. This, he asserted, was an unreasonably dangerous condition. Schwartz further opined that there was a very high probability that the solder was present on the threads before the fire.

While Schwartz testified that a frictional spark from the can when it was kicked could have been the ignition source for the fire, he admitted that he never performed any tests or experiments on the subject similar can to support his opinion.

Schwartz also testifed that the gasoline can was unreasonably dangerous, lacking stability because it would tilt over if it was on a 30° incline.

The record demonstrates that while Mr. Schwartz was probably qualified to testify as an expert in several areas, he was not qualified to render an expert opinion concerning defects in the design and manufacture of two-gallon gasoline cans. His degree in civil engineering provided him with no special knowledge of gasoline cans. He possessed no degree or training in the field of mechanical engineering. He never designed gasoline cans, nor was he ever involved in the manufacture of portable hand-carried gasoline containers. He admitted his experience was limited to highway or railway cars as transporters of “hazardous substances.” Further, we note no evidence of training or experience which would impart to Mr. Schwartz any special knowledge of combustion, ignition sources, or the grade of metal used in the can.

We recognize that gasoline is a hazardous substance. Likewise, we recognize that a railway tank car that transports hazardous substances is similar, in a sense, to a two-gallon gasoline can. The differences, however, outweigh the similarities. We find the similarities too remote for the great credibility ultimately placed upon an expert’s opinion.

One qualified by professional, scientific, technical training, or by practical experience, in regard to a particular subject, which imparts to him a special knowledge not shared by persons in the ordinary walks of life, may testify as an expert. His testimony as an expert, however, must be on questions coming within the field of his training or experience. In the instant case Schwartz testified about materials outside of his area of expertise when he testified about the subject gasoline can. In fact, he specifically stated he had no experience with design or manufacture of any type of portable, hand-carried gasoline cans. Hence, he was not competent to testify as an expert on that subject.

Although the trial judge has broad discretion in determining if a witness has been qualified as an expert (Northern Illinois Gas Co. v. Wienrank (1966), 66 Ill. App. 2d 60), our analysis of the transcript causes us to find that this discretion was abused with respect to Schwartz. Since there is no general presumption that a witness is competent to give an opinion, it is incumbent upon the party offering the witness to show that the latter possesses the necessary learning, knowledge, skill or practical experience to enable him to give opinion testimony. Direct examination of Schwartz as to his education and professional experiences revealed no special knowledge of the subject under scrutiny, gasoline cans. Accordingly, defendant National Can asked to cross-examine Schwartz as to his qualifications as an expert. The trial court denied this request. Without any further questioning of the witness as to his qualifications, the trial court found Schwartz qualified as an expert in the instant case. Such a finding is without any basis in the record. Hence, his subsequent testimony should not have been considered by the jury, and it was prejudicial error for them to so consider it. Murphy v. Hook (1974), 21 Ill. App. 3d 1006.

While numerous witnesses were called by the defendants, the essential testimony was presented by two experts and a boy who shared a hospital room with Sam Broussard for six days while Sam was being treated for his injuries following the fire. Two engineer executives of defendant Huffy also testified as to the manufacturing process involved in attaching the necks to the cans.

One of the experts, called by defendant Huffy, was Robert Bam-benek. He presented expert testimony on the condition of the subject can and what its present charred condition revealed about the fire. He also testified about the ignition source of the fire. Bambenek was eminently qualified to so testify, having earned bachelor of science and master of science degrees in mechanical engineering and a master of science degree in gas technology. Professionally, he specialized in the investigation of accidents which involved some form of explosion or fire. He testified as to the following properties of gasoline: that for gasoline to burn it must be between 1.5% and 7.5% gasoline to air; that the liquid cannot bum, only the vapor; that in a can gasoline is safe and only when it spills out of a can does it become hazardous; that gas vapors must have a source of ignition in order to burn; that gasoline is manufactured to explode — that is its sole purpose.

By physical examination of the burn pattern on the can, Bam-benek determined that at the end of the fire, the gasoline in the can was at least one-inch deep and at least halfway up to the spout. For this to occur, the cap had to have been on during the fire. The spout was inserted in the can, and the union to the spout was closed.

If the cap assembly had flown out of the can upon impact of a kick by Sam, the burn patterns would have been entirely different. The line of demarcation would have been no more than one-half inch above the bottom of the can as the carbon deposits would have been no more than one-half inch up, and solder would have been found to have run to the bottom of outlet instead of on the side. Bambenek stated that heat of the fire causes solder to melt in five seconds after exposure to gasoline flame. The solder was originally all around the neck between the threaded outlet and the top enclosure. During the fire the solder melted so it flowed downward due to gravity until it reached the metal which was cooler. It then resolidified. The deposit of solder on the thread is an area where the can was cooler. With the cap on the can, lying on its side, solder can flow under the cap onto the threads of the neck towards a cooler region where it resolidified. If the cap had been off during the fire, the solder would not have re-solidified on the threads of the neck.

In Bambenek’s opinion, the instant fire could not have been ignited by a spark caused by kicking the can. He testified that the can is made of tinplated steel, which is a soft metal, and will not spark under the described conditions. Further, a spark close to the floor could not have ignited the gasoline because the gasoline to air mixture is too rich and is not flammable at that point. The source of ignition could not be directly on the floor or over two to three feet above the floor. The ignition source had to have been one-quarter inch off the floor to two feet off the floor, because that is where the flammable mixture would occur.

In Bambenek’s opinion, the subject gasoline can was reasonably safe for the purpose intended. As for the poly-vent, its purpose is merely to release a vacuum when pouring gasoline from the can. It is not to relieve pressure in the can. The poly-vent, in his opinion, had nothing to do "with the damage to the can or the fire. As to the number of threads on the cap, he felt they were sufficient to pull the gasket down and create a seal.

Defendant Huffy also presented the testimony of Carl James Dahn, a consulting engineer, who had earned a bachelor of science in aeronautic engineering and was a registered professional engineer. He had experience in rocket propulsion, fire and explosions. Recently he had completed research in hazard analysis. This involved determining whether hazards exist in market products and whether the hazards are significant to cause injury to people. Dahn had conducted analysis of ignition sources.

Through mathematics and tests performed by Dahn, it was his opinion that there was insufficient energy caused by dropping a Huffy gasoline can from five feet to ignite a flammable gasoline-air mixture. He determined this by placing a piece of the Huffy can against a car-borumdum wheel revolving at 1750 rpm in a flammable mixture environment. No ignition of the mixture occurred. The 1750 rpm represented a speed of 23 feet per second. A can kicked five feet represents a maximum speed of 13 feet per second. The test confirmed the mathematical calculations that a Huffy gasoline can kicked five feet will not generate sufficient energy to ignite a flammable mixture.

Based upon his calculations and tests, Dahn concluded with a reasonable degree of scientific certainty, that a spark could not have ignited the gasoline under the facts as described by Sam Broussard.

Defendant National Can presented, by evidence deposition, the testimony of Michael LoPresti. He and Sam had shared a hospital room at Loyola Hospital when Sam was being treated for his bum injuries. On one occasion Sam told Michael how he got burned. LoPresti testified that Sam told him that he, Sam, had been working on a wood project and that he accidentally dropped a match in or near the gasoline and then there was an explosion.

It is axiomatic that a jury’s verdict will not be disturbed on appeal unless it is contrary to the manifest weight of the evidence. For the jury’s verdict to be against the manifest weight of the evidence, “it must appear that when viewing all the evidence in a light most favorable to the opponent, conclusions reached by the jury are palpably erroneous and wholly unwarranted.” (Kincl v. Hycel, Inc. (1977), 56 Ill. App. 3d 772.) Here not only is the verdict against the manifest weight of the evidence, it is wholly without the support of any competent evidence. The trier of fact must, as a matter of law, reject testimony which is physically impossible, or so inherently improbable as to be contrary to the common experience of mankind. (Old Second National Bank v. Gould (1979), 75 Ill. App. 3d 839.) It appears that the jury accepted the opinion of plaintiff’s witness, Schwartz, and the plaintiff’s version of the accident that a spark from the sliding gasoline can ignited the can. However, the physical evidence and the experiments and testimony of experts Dahn and Bambenek demonstrate beyond question that the source of ignition for the fire could not have been a frictional spark from the gasoline can. Thus, some conduct of Sam Broussard, the only person present at the time of the accident, must have provided the source of ignition for the fire. Furthermore, if the allegedly defective condition of a product does no more than furnish a condition by which the injury is made possible and that condition causes any injury by the subsequent act of a person, the two are not concurrent, and the existence of the defective condition is not the proximate cause of one injury. Barr v. Rivinius, Inc. (1978), 58 Ill. App. 3d 121.

However, the evidence does not establish that any condition of the gasoline can was unreasonably dangerous. The plaintiff claimed the gasoline can was unstable. Even plaintiff’s expert claimed that it was stable on a flat surface. Only when on an incline of 30° or greater does instability become a problem. The record does not indicate that the garage in question was anything but a flat surface. Thus, the alleged instability is irrelevant in the instant case. Second, plaintiff claimed the poly-vent was defective in that it did not have adequate provisions for venting internal pressure and it did not reseal itself once opened, thereby emitting vapors. The poly-vent was not designed for that purpose. It was designed to relieve the vacuum inside the container in order to facilitate the pouring. We find no evidence that the emission of vapor would be significantly less from a spring-seated vent, the alternative design suggested by plaintiff’s expert Schwartz. Moreover, just because the design used may not be the safest possible does not mean that it is unreasonably dangerous. (Hunt v. Blasius (1978), 74 Ill. 2d 203.) The nature and intended function of a feature, as well as cost, are all factors to be considered in analyzing if a feature is unreasonably dangerous. Here, the poly-vent performed well for its intended purpose. Furthermore, the record demonstrates that Mr. and Mrs. Broussard were both aware that the poly-vent would pop up and emit fumes. They knew it would not reseal itself.

Lastly, the plaintiff claimed the number of threads in the neck and cap was inadequate to insure closure and prevent leakage and that a drop of solder on the threads of the neck of the can debilitated the user’s ability to screw the cap on the can. The testimony of Schwartz on these subjects was not credible; he was testifying as an expert on subjects that he was not properly qualified to testify as an expert. This testimony should have never been considered by the jury. By scientific evidence it was demonstrated that the solder drop was a result of the fire and could not, therefore, have been a defect which existed before the accident. As for the number of threads, no credible evidence supports a finding that this was a defect in the cap. More threads would not have created a better sealing of the cap. While the cap may have been difficult to screw on properly all the time, the Broussards were aware of this condition. There is no evidence in the record to show that it could not be closed with proper care. In any event, Mr. Broussard testified that he tightly secured the cap after he used the gasoline can on the evening preceding the accident.

The facts of this case reveal the story of a tragic accident involving a young boy with time on his hands, a closed garage and a gasoline can. As a result of the accident, the boy sustained burn injuries and will probably be scarred for life. But those facts, tragic as they are, do not mean that a product was defective. Those facts alone do not warrant a judgment against the persons who manufacture, design and distribute the gasoline can involved in the accident. There is no probative evidence in the record to support the claim that the gasoline can possessed defects which made it unreasonably dangerous or that the injuries were proximately caused by any defective condition of the can.

The defendants claim several other counts of error. Notably, they claim reversible error in that several jurors inspected gasoline cans, similar to the subject can, outside the courtroom arena during the course of the trial. While we agree, we find it unnecessary to consider that topic because of our holding herein.

Since the judgment of the circuit court of Will County was based on a verdict for which there is no competent, probative supporting evidence, the judgment must be reversed. Accordingly, judgment is entered for the defendants.

Reversed.

SCOTT, J., concurs.

PRESIDING JUSTICE BARRY,

dissenting:

I must dissent for two reasons.

Firstly, I believe the majority is in error in reversing the judgment of the trial court without remandment for a new trial. The majority opinion holds that the court erred in permitting Fred Schwartz to testify for the plaintiff as an expert witness and that without the testimony of Schwartz, there was no probative evidence to support the judgment. To reverse without remanding is to deny plaintiff the opportunity to prove his case without the testimony of Schwartz. The courts of this State have long held:

“Where, in a jury trial, the trial court commits an error of law pertaining to the admission of evidence which requires a reversal of the judgment, the Appellate Court, upon reversal, must remand for a new trial, unless it appears from the record that the error cannot be obviated upon another trial. Dixon v. Smith-Wallace Shoe Co.,., 283 Ill. 234, 239, 119 N.E. 265; Abdill v. Abdill, 292 Ill. 231, 232, 126 N.E. 543; Frey v. City of Chicago, 330 Ill. 640, 642, 162 N.E. 139.” (McCottrell v. Benson (1961), 32 Ill. App. 2d 367, 370,178 N.E.2d 144,145.)

Accordingly, if I were to agree that the trial court erred, I would remand for a new trial.

Secondly, I believe Schwartz was more than sufficiently qualified to testify as an expert, and that his testimony was properly admitted. In addition, I disagree with the majority’s observation that reversible error occurred when two jurors observed some gasoline cans in a store window. Finally, I have concluded that none of the other errors urged by defendants require reversal of the judgment.

Initially, I would note that Schwartz was extensively examined regarding his professional background before he was allowed to testify as to his expert opinion concerning the issues in this case. Virtually his entire career had been devoted to product development and design responsibilities of containers and equipment involving combustible fuels. He holds numerous patents relating to such containers, and has worked in private industry and with trade organizations in developing standards for storage, refueling, and transporting gasoline in both the aircraft industry and the railroad industry. For the last 12 years he has been self-employed as an engineering consultant, and about 25 to 30 percent of his work has been the investigation of tank car accidents involving fires. All of these elements of Schwartz’ background are related to the safe containment of gasoline and other hazardous substances, thereby justifying the trial court’s conclusion that his experience qualified him sufficiently to testify as an expert in this case.

The test for the admissibility of expert testimony has been held to be whether “the witnesses offered as experts have peculiar knowledge or experience not common to the world, which renders their opinions founded on such knowledge or experience an aid to the court or jury in determining the question at issue.” (Merchants National Bank v. Elgin, Joliet & Eastern Ry. Co. (1971), 49 Ill. 2d 118, 121, 273 N.E.2d 809, 811.) I believe Schwartz had such “peculiar knowledge or experience” and was properly permitted to testify. The weight to be given the testimony was, of course, a question for the jury. It has been well stated:

“The testimony of experts must be judged by the same rules of weight and credibility which are applied to other witnesses, and the weight and value of the testimony largely depends on the foundations of fact and reason upon which the opinions stand.” Cannell v. State Farm Fire & Casualty Co. (1975), 25 Ill. App. 3d 907, 912, 323 N.E.2d 418, 422.

In Nowakowski v. Hoppe Tire Co. (1976), 39 Ill. App. 3d 155, 349 N.E.2d 578, a tire mechanic with 18 years experience inspecting and mounting tires was allowed to express an expert opinion as to the cause of the explosion of a truck tire which blew up while being mounted. The reviewing court found no error and stated:

“The knowledge required to qualify one as an expert may be obtained from study or experience, or a combination of both [citation], and whether a witness qualifies as an expert is a matter within the sound discretion of the trial court. [Citation.] [The witness] had been employed as a tire mechanic for some 18 years and had inspected and mounted thousands of tires. The trial court reasonably concluded that this extensive experience gave him special knowledge not shared by the average juror.” 39 Ill. App. 3d 155,163, 349 N.E.2d 578, 585-86.

It is undisputed that Schwartz was experienced in product development and design of large containers of gasoline and other hazardous substances. He has had a distinguished career and served in a variety of responsible positions in several companies before becoming self-employed. During the last 12 years he has spent a substantial amount of time investigating accidents involving gasoline explosions and fires. His lack of familiarity with the manufacturing process of two-gallon cans did not affect his qualification in the general field of containment of gasoline in my opinion.

The view of the majority opinion seems to be that an expert can testify only in the narrow area where he has been previously employed, regardless of the relevance of one area of science or trade to another. In other words, the majority says that expertise in designing railroad tank cars and aircraft fuel equipment does not qualify a witness in the field of two-gallon gasoline cans. This ignores the fact that Schwartz possessed extensive expertise about the properties of gasoline and other combustibles, and the fact that the basic principles of safety in handling gasoline are the same whether you are storing 2 gallons or 2,000 gallons. His scientific and technical study and experience alone were, in my view, sufficient to permit him to testify as an expert about the design of gasoline containers of any size — large, small, and in-between. Any special requirements unique to small containers would be factors to be considered by the jury in determining the weight to be given his testimony and would not render his testimony inadmissible.

It should also be noted that, even where it is error to refuse to allow cross-examination of an expert witness as to his qualifications before he begins to testify to expert opinions, such error has been held to be harmless where subsequent extensive cross-examination is allowed. (See Geving v. Fitzpatrick (1978), 56 Ill. App. 3d 206, 371 N.E.2d 1228.) The cross-examination in this case was extensive, and the background and experience of Schwartz was thoroughly examined. Consequently, even if it were error to deny defendants a chance to conduct a voir dire examination of Schwartz, such error would have been harmless.

Defendants also assert that reversible error occurred when the jury improperly considered information not in evidence and that such evidence was related to the issue of liability. According to affidavits in the record, two women members of the jury noticed a display of gasoline cans in a store window while walking past the store during a noon recess in the trial. Both women noticed some solder droplets on the tops of the display cans around the necks of the cans, and both noticed that the presence of solder was similar to that on some of the cans admitted into evidence. The observation of the drops of solder on these cans was mentioned by the women during the jury deliberations. In addition, one of the women who saw the display of gasoline cans also purchased a similar can for her own use, at another time, during trial.

The jury verdict was returned on September 25, 1980, and during October and November of 1980, defendants obtained affidavits from four jurors stating that some members of the jury had inspected other gasoline cans for the purpose of determining whether there was solder on the threads of the necks of the cans. Defendants filed these affidavits in this cause. Later, nine of the jurors, including the four who had previously given affidavits, signed more detailed affidavits indicating that the view of cans by two jurors had been accidental, that the jurors had observed solder drops on the tops of the cans rather than on the threads, that these observations were mentioned to the jury but did not affect or influence the decision of the jury. These latter affidavits were submitted to the court by plaintiff in support of the verdict and judgment.

It should be noted that one of the factual issues before the jury was the origin of the drop of solder visible on the threads of the neck of the can which had been involved in the fire. It was agreed by the expert witnesses that the drop of solder would prevent the cap from closing tightly or sealing the can. Plaintiff’s theory was that the drop of solder adhered to the threads during the manufacturing process, while defendants insisted that it originated in the fire. Apparently solder will melt during a fire of this type, and defendants theorized that the solder ran along the neck of the can and under the cap along the threads where it solidified. The neck and the handle of the can were separate components also attached by solder to the can during the manufacturing process. During the trial, plaintiff introduced into evidence the can which had been kicked by Sam Broussard. The neck was still attached. Defendants introduced a number of other gasoline cans, several of identical design, manufactured by various companies. All but one such cans of the Type F style have drops of solder clearly visible on the top of the can in the area where the neck is attached.

The trial court ruled that the viewing of cans by the jurors was inadvertent and not for investigatory purposes and that defendants had failed to show the probability of prejudice to them as a result and for those reasons the court denied that part of the defendants post-trial motion alleging jury misconduct or extraneous influence.

I believe the trial court erred to the extent it may have considered the test to be whether the jurors’ view of extraneous evidence was inadvertent or not. The purposefulness of the examination of the window display of gas cans is immaterial in view of the affidavits of the two jurors that they did in fact see solder droplets on the tops of the new cans and that they did discuss their observations during the jury deliberations. At first blush, this situation would seem to be the one that would require a reversal since the rule in Illinois is that any extraneous information in the nature of evidence upon an issue in the case brought to the jury’s attention is grounds for reversal, and neither the trial court nor the reviewing court should delve into the exact effect of unauthorized evidence upon a particular juror. (Heaver v. Ward (1979), 68 Ill. App. 3d 236, 386 N.E.2d 134.) However, it has also been held that it must be apparent that there is such a probability of prejudice resulting that due process would be inherently lacking before reversal is required. (People v. Mills (1968), 40 Ill. 2d 4, 237 N.E.2d 697; People v. Holmes (1978), 69 Ill. 2d 507, 372 N.E.2d 656; United States ex rel. Tobe v. Bensinger (7th Cir. 1974), 492 F.2d 232, 237.) Thus it is appropriate to test the trial court’s ruling as to whether viewing the store display of gas cans and noting solder drops thereon could be prejudicial to defendants’ case.

Parenthetically it must be stated that the statements of the jurors in their affidavits that they were not influenced by the report of solder drops on other cans cannot properly be considered. One rule is clear: where a juror attempts to prove by affidavit or testimony the motive, method or process by which the jury reached its verdict, the testimony is inadmissible. (Holmes.) Thus, we should ignore the improper statements in the affidavits.

What cannot be ignored is that a total of six new F style gasoline cans were introduced into evidence (one by plaintiff and five by defendant Huffy) and all but one have droplets or solder plainly visible on the top where the neck is attached and on the tops generally. Thus, the observations of the two jurors were plainly cumulative of defendants own evidence as well as that of plaintiff. Furthermore, the fact that the necks were soldered to the tops was not a disputed issue in the case. All parties agreed to that. The factual question confronting the jury was how a drop of solder came to be deposited on the threads of plaintiff’s exhibit No. 32 (the can involved in the fire). I do not comprehend how the jurors’ view of some additional gasoline cans that possessed the same characteristics as those in evidence could have affected their determination of that question. For that reason, I would agree with the trial court that there was not such a “ ‘probability that prejudice will result’ ” (People v. Holmes (1978), 69 Ill. 2d 507, 516, 372 N.E.2d 656, 660) as to affect the outcome of this case. Thus, I would find the jurors’ view of gasoline cans in a store window to have been harmless.

Another error asserted by defendants involved the testimony of Deputy State Fire Marshall Dwight Elliott who testified on behalf of plaintiff concerning State standards for gasoline containers. Elliott stated that his office had the authority to regulate storage, transportation, and use of gasoline and other flammable liquids and that the Fire Marshall can regulate the sale and dispensing of gasoline containers. Elliott then stated that before a can will be approved for sale and distribution, it must have a spring-loaded closure, a flame-arresting screen, and other requirements of a safety nature. He stated unequivocally that the can in question (plaintiff’s exhibit No. 32) had not been approved for sale by the State Fire Marshall, and he further stated that the Fire Marshall has a right to control and enforce the regulations as they apply to retailers. (This evidence was admitted as applying only to defendant Huffman Manufacturing Co., the manufacturer of the can, and not the other defendants.) During the course of this testimony the trial court denied numerous motions to strike and for mistrial as defendant repeatedly asserted that no such regulations had ever been made or published and that the Fire Marshall had no such authority under applicable statutes. The court at one point noted that it might be a question of fact whether such a rule exists and that, if no such rule is produced, he would entertain a motion to strike.

Upon cross-examination Elliott referred only to the rule requiring persons storing gasoline in cellars, basements and pits to use approved safety containers. The phrase “approved safety containers” he said, had been interpreted to mean containers meeting certain UL specifications and was a standardized term.

At the conclusion of Elliott’s testimony, no written rule of the Fire Marshall had been produced, as promised by the plaintiff’s counsel, which would have prevented defendant Huffman from lawfully selling its Type F gasoline cans in Illinois. The next day, after Schwartz testified to the meaning of safety type gasoline cans and to his understanding of the State regulations, the trial court ruled that Elliott’s testimony should be striken. At a later point in the trial, the court instructed the jury to disregard Elliott’s testimony.

On appeal, defendants argue that the testimony was so prejudicial that the error could not be cured by a mere instruction to the jury to disregard.

Defendants have placed in the record a post-trial affidavit by a psychologist stating that he had read the record and that such testimony must have influenced the jury. Plaintiff countered with affidavits by several jurors indicating that they did not discuss or consider Elliott’s testimony. All such affidavits are improper and will not be considered by trial courts or reviewing courts in Illinois because they purport to describe the mental process of the jury in reaching its decision. As indicated in Holmes and other cases cited above, such affidavits are inadmissible.

The effect of Elliott’s testimony in the course of a lengthy trial is a matter for the discretion of the trial court, since the court is in a better position to determine whether a fair trial has been held and whether substantial justice has been done. A reviewing court will reverse on the basis of improperly admitted evidence which was ordered stricken only where there was some great abuse of discretion. (Fitzsi-mons v. National Tea Co. (1961), 29 Ill. App. 2d 306, 173 N.E.2d 534; Hunter, Trial Handbook for Illinois Lawyers sec. 78.3 (4th ed. 1972).) Considering the confusing nature of Elliott’s testimony, the length of the trial, and the trial judge’s superior position to determine prejudice, I would not say there was clearly “some great abuse of discretion” here. Rather I would join the trial judge and find any error to have been cured by the instruction to disregard Elliott’s evidence.

Defendants also contend that other erroneous rulings of the trial court deprived them of a fair trial and require a reversal of the judgment. The rulings claimed to be error are as follows:

1. Allowing Schwartz to express expert opinions on matters of common knowledge, such as the stability of the container, adequacy of threading on the neck, the danger of allowing solder to accumulate on the neck, and the tendency of the can to leak when the cap was not tight. Schwartz discussed these characteristics in terms of design criteria.
2. Refusing to allow Bambenek (defendants’ expert engineer) to testify to the cause of the second and third degree burns on plaintiff’s arms and neck.
3. Plaintiff’s attorney mentioned in closing argument that he would not have been able to present evidence of other claims in response to defendants’ argument that millions of these cans have been sold and that plaintiff had no evidence of any other cases. Defendants’ objection was sustained.
4. Other instances that occurred where objections were sustained but plaintiff’s counsel tried to obtain the same information with reworded questions.
5. Plaintiff’s attorney referred to the number of times defendants’ expert witnesses had testified in other trials.
6. Plaintiff’s counsel argued with the court over rulings.
7. Plaintiff’s lawyer cross-examined Bambenek on his past employment by insurance companies to investigate accidents after the witness first mentioned such employment on direct examination.
8. Admitting evidence to impeach witness LoPresti who had been a hospital roommate of plaintiff, and whose evidence deposition was introduced at trial.

In my view, none of these challenged rulings amounted to reversible error, and accordingly, they need not be discussed in this dissenting opinion.

Defendants also assert that the verdict was contrary to the manifest weight of the evidence. This argument is predicated upon the theory that the expert testimony of Schwartz was not probative and should not have been considered, or, in the alternative, that defendants’ experts were so much more qualified than plaintiff’s expert that defendants’ evidence was entitled to more weight. As indicated above, I do not agree with this view of the testimony of Schwartz.

Defendants also argue that the physical evidence indicates the improbability of the accident occurring as plaintiff testified. Whether the can was defective and unreasonably dangerous for its intended use was, it seems to me, clearly a factual issue for the jury to resolve on the basis of the evidence before it. I find the testimony of Schwartz to have been admissible, and I also find that his testimony was sufficient to support a finding that the gasoline can was unreasonably dangerous.

Defendants insist that the uncontroverted evidence established that a spark from friction could not have been the source of ignition. In doing so, they ignore the fact that one of their own expert witnesses, Robert Bambenek, stated on direct examination that it was possible that the fire resulted from plaintiff kicking the can, although in his opinion it could not have happened that way. Furthermore, Bambenek based his opinion upon the fact that the tin-plating on the can was a soft metal that would not spark when rubbed against concrete. He went on to say:

“On the other hand, if it is kicked a sufficient distance, it is theoretically possible the lead or tin coating could be worn off.”

He went on to say that he thought the garage was too cluttered for the can to have been kicked a sufficient distance to create such a spark. The following day, Bambenek was questioned on cross-examination as follows:

“Q. I believe you did tell me yesterday that, in your opinion, it was possible for a spark to have been the ignition source in this event, is that correct?
A. Theoretically based on energy considerations, it’s possible.”

Bambenek ruled out an ignition source more than two feet above the can, and specifically eliminated a light switch as a possible cause of a spark. He also stated that a spark from the floor was not a possible source because the gasoline and air mixture would be too rich at floor level. These statements seem to be somewhat at odds with his other statements that a spark from the can or other source was a possibility. ■

I have examined the can in question, and from the scratched and scraped and rusted condition of the can, I believe the jury could have found that the tin plating was worn off and that the steel caused a spark which ignited the gasoline as it was spilling.

Other evidence must have weighed in plaintiff’s favor. For example, several safety-type cans were placed in evidence which had safety features such as greater stability, heavier metal, safety closures, etc. Thus, defendants knew how to produce a safer can. Additionally, defendants’ evidence indicated that the F-style can body was also sold to the food industry for salad oil and shortening, and that the twist-on cap was not in fact designed for use on gasoline cans.

Defendants sought to impeach plaintiff’s testimony by the deposition of a former hospital roommate who indicated that plaintiff had told him he had dropped a match into the can. On its face, this version of the ignition source contradicts statements of defendants’ experts that the cap was on the can during the fire. Furthermore, the possibility that other objects capable of sparking were present on the garage floor was never ruled out.

I do not find the testimony of defendants’ experts so overwhelmingly convincing that a contrary verdict could never stand (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504), and consequently I cannot say that the verdict was wrong as a matter of law, or that it was contrary to the manifest weight of the evidence. In fact, the testimony of defendants’ experts explaining how a drop of molten solder could run sideways along the neck of the tipped-over can under the cap and solidify on the threads of the neck of the can during the fire seems so improbable as to invite the jury to reject it, given the fact that the soldered neck remained attached.

For the reasons stated, I would affirm the verdict and judgment of the trial court.


author: JUSTICE WILSON

text:
    STATE NATIONAL BANK OF EVANSTON, Plaintiff and Counterdefendant-Appellant, v. NORTHWEST DODGE, INC., Defendant and Counterplaintiff-Appellee.
    First District (5th Division)
    No. 81 — 0056
    Opinion filed July 30, 1982.

      Lawrence Friedman, of Chicago (Linda H. Ktsanes, of counsel), for appellant.
    Mitchell, Russell and Kelly, of Chicago (Thomas J. Russell and Cyril J. Watson, of counsel), for appellee.
   JUSTICE WILSON

delivered the opinion of the court:

This is the second appeal arising out of a contract dispute between State National Bank of Evanston (Bank), and Northwest Dodge, Inc. (Dodge). In the previous appeal we reversed a judgment in favor of the Bank, holding that Dodge was a debtor under section 9 — 101 of the Uniform Commercial Code (UCC) (as . adopted in Ill. Rev. Stat. 1975, ch. 26, par. 9 — 101 et seq.). As such, Dodge was entitled to notice before the Bank sold repossessed motor vehicles that were the subject of retail sales conracts which Dodge had sold to the Bank. (State National Bank v. Northwest Dodge, Inc. (1980), 86 Ill. App. 3d 90, 408 N.E.2d 1.) On remand the trial court held that the Bank’s failure to notify Dodge before it sold the vehicles barred it from recovering, as a “deficiency,” the amounts that it had debited to the dealer’s reserve account following the sale of the vehicles. Therefore, the court entered summary judgment in favor of Dodge on its counterclaim for damages, the measure of which was determined to be the total amount that the Bank had debited to the reserve account. For the reasons that follow, we affirm the trial court’s judgment.

Dodge, an automobile dealer, sells vehicles to the general public. In 1973 it entered into a “General Dealer Agreement” with the Bank, pursuant to which it sold the Bank retail installment contracts covering its customers’ purchase of recreational vehicles. Pursuant to its agreement with Dodge, the Bank purchased the contracts at a discount from their face amounts. Dodge made several warranties pertaining to the contracts and agree that “if any warranty *** is breached or if the Buyer [of the vehicle] successfully asserts against [the Bank] a claim or defense arising out of any of said contracts, or cancels any of said contracts pursuant to law, [Dodge would] repurchase such contracts, on demand, for the unpaid balance due thereon.” In Addendum C to the parties’ agreement, Dodge was given a 3% participation in the finance income from the installment contracts, 1% of which was to be credited to a dealer’s reserve account. Addendum C further provided that the Bank would disburse sums from this fund periodically. Finally, Dodge agreed that the Bank could “charge to the reserve fund, or [Dodge] would pay [Bank] on demand (i) [Dodge’s] proportionate share of all refunds allowed on prepayment of accounts, (ii) the balance owing on accounts on which 2 or more installments [were] delinquent, and (iii) the balance owing on accounts which any warranty [was] breached or which [became] uncol-lectible for any reason.”

In February of 1976 the Bank filed a complaint, alleging that Dodge had failed to pay its proportionate share of refunds on prepaid accounts. Dodge counterclaimed, alleging that the Bank “failed to pay Northwest from the Dealer Reserve Account as required by the Agreement” and also claimed that “the Bank charged to the reserve fund of Northwest the balance owing on accounts without a showing that a warranty had been breached or that the accounts had become uncollectible.”

The parties stipulated that eight of the recreational vehicles purchased from Dodge had been repossessed by the Bank and then sold by the Bank without prior notice to Dodge. After the sale, the Bank debited the Dealer Reserve Account for amounts representing deficiencies from the sale of the repossessed vehicles and then notified Dodge.

The trial court held that the general dealer agreement between the parties did not create a debtor-creditor relationship as contemplated by section 9 — 105(1)(d) of the UCC and that consequently Dodge was not entitled to prior notice of the Bank’s sale of the repossessed vehicles. The court entered judgment for the Bank on its complaint and also entered judgment against Dodge on its counterclaim. Dodge appealed from that judgment. We reversed, holding that Dodge was a debtor, entitled to notice under Article 9. We remanded the cause with instructions for the trial court to determine what losses Dodge should recover on its counterclaim. The trial court awarded Dodge a total of $20,825.45 and subsequently denied the Bank’s petition for a rehearing. Thereafter, the Bank brought this appeal.

Opinion

In the abstract, the issue presented is whether a secured party’s failure to give the debtor notice under section 9 — 504(3) before selling the repossessed collateral bars the secured party from recovering any deficiency as a matter of law (absolute bar theory). The Bank urges us to adopt the countervailing view that failure to give such presale notice simply creates a rebuttable presumption in favor of the debtor that the value of the collateral is equal to the amount of debt outstanding. Under this theory, to recover a deficiency, the secured party must, in addition to overcoming this presumption, prove that the sale of the collateral was commercially reasonable.

Initially we emphasize that the parties’ rights and obligations in this case were governed by the terms of their agreement as well as the pertinent provisions of the UCC. The Bank had the contractual right to debit the reserve account or to demand payment from Dodge for the full amount of any balance due on accounts as to which two or more installments were past due or which were uncollectible for any reason. Had it pursued this contractual right of recourse the question of its right to a deficiency after selling the vehicles would not have arisen. By exercising its right to dispose of collateral under section 9 — 504, however, the Bank was obligated to comply with the notice provision of section 9 — 504(3) which provides in relevant part:

“ [Reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor ***.” (Emphasis added.) Ill. Rev. Stat. 1975, ch. 26, par. 9 — 504(3).

The Bank concedes that the provision is mandatory in nature but nevertheless challenges the conclusion that compliance with the notice requirement is a condition precedent to recovery of a deficiency. The Bank bases its argument on the theory that since the policy of the UCC is “commercial reasonableness,” the secured party should not be deprived of his right to a deficiency without a determination as to whether his failure to comply with the notice provision has damaged the debtor in any way.Citing section 9 — 504(2) the Bank contends that secured parties have an absolute right to a deficiency because of the language that “unless otherwise agreed, the debtor is liable for a deficiency.” (Ill. Rev.Stat. 1975, ch. 26, par. 9 — 504(2).) Furthermore, the Bank maintains that section 9 — 507(1) provides Dodge "with an adequate remedy because it allows recovery “from the secured party any loss caused by a failure to comply with the provisions of this Part.” (Ill. Rev.Stat. 1975, ch. 26, par. 9 — 507(1); see Conti Causeway Ford v. Jarossy (1971), 114 N.J. Super. 382, 276 A.2d 402, aff’d (1972), 118 N.J. Super. 521, 288 A.2d 872; Hodges v. Norton (1976), 29 N.C. App. 193, 223 S.E.2d 848.) Finally, the Bank argues that the absolute bar approach is punitive and thus runs afoul of section 1 — 106(1) of the Code, which encourages a liberal construction of remedies to put an aggrieved party in “as good a position as if the other party had fully performed” but to avoid “special” or “penal” damages. For those reasons the Bank requests us to adopt the rebuttable presumption approach, reverse the judgment entered on Dodge’s counterclaim, and to remand this case again so that the Bank can produce evidence as to the commercial reasonableness of its sale of the repossessed vehicles. Presumably, if the Bank sustained its burden and overcame the presumption that the value received for the vehicles was equivalent to the amount of debt, it would defeat Dodge’s claim for damages, in all or in part. We reject the Bank’s arguments.

The decisions from various jurisdictions have shown a distinct lack of uniformity in determining the consequences of a secured party’s failure to adequately notify its debtor before selling repossessed collateral. Courts that adhere to the rebuttable presumption rule emphasize the. “punitive” nature of the absolute bar approach and apparently believe that allowing a debtor to avoid paying a deficiency if he did not receive notice is a rigid technicality. (See generally Hall v. Owen County State Bank (Ind. App. 1977), 370 N.E.2d 918; Beneficial Finance Co. v. Young (Okla. 1980), 612 P.2d 1357; Fedders Corp. v. Taylor (D. Minn. 1979), 473 E Supp. 961.) On the other hand, courts which view proper notice as a condition precedent to the secured party’s cause of action for a deficiency reason that the debtor’s interests cannot be adequately protected if he is denied the opportunity to be present at the sale or to redeem the collateral himself, pursuant to section 9 — 506. The effect of the rebuttal presumption approach, consequently, is to put the debtor in the difficult position of refuting the secured party’s evidence that the sale he did not even attend was commercially reasonable.

The Delaware Supreme Court in a recent opinion analyzed the notice issue in detail and rejected arguments similar to the ones that the Bank sets forth in this case. In Wilmington Trust Co. v. Conner (Del. 1980), 415 A.2d 773, 777, the court reviewed the different theories regarding the consequences of a secured party’s failure to give proper notice under section 9 — 504(3) and concluded that the “apparent majority rule under the Code [is] the ‘absolute bar’ theory.” The court reasoned that this approach promotes commercial certainty and cannot be considered punitive because notice is the statutory condition precedent to the attainment of a deficiency judgment. Noncompliance with the statute means that the right to a' deficiency does not come into existence; this is not properly viewed as “punishment.” The Wilmington court further rejected the argument that the debtor’s remedy under section 9 — 507(1) is adequate and should be construed as his exclusive mode of relief from the secured party’s noncompliance with the Code, stating:

“The burdens placed on the creditor under the Code are minimal, while the results of his noncompliance may be very onerous to the debtor. *** We are unable to see any unfairness in protecting the debtor’s rights to the exclusion of those of the creditor when the creditor has been placed in such a high degree of control over the relationship and carries such a small burden inorder to gain the advantages of the Statute.” (415 A.2d 773, 780.)

See also Spillers v. First National Bank (1980), 81 Ill. App. 3d 199, 400 N.E.2d 1057 (debtor’s right to damages is cumulative to the barring of a deficiency).

Other courts which have approved the absolute bar approach include Atlas Thrift Co. v. Horan (1972), 27 Cal. App. 3d 999, 104 Cal. Rptr. 315; Stensel v. Stensel (1978), 63 Ill. App. 3d 639, 380 N.E.2d 526; DeLay First National Bank v. Jacobson Appliance Co. (1976), 196 Neb. 398, 243 M.W.2d 745.

In Illinois, the decisions have apparently recognized both the absolute bar and rebuttable presumption approaches. In Stensel v. Stensel (1978), 63 Ill. App. 3d 639, 380 N.E.2d 526, the Fourth District Appelate Court held that notice under 9 — 505(2) is a condition precedent to a secured party’s right to a deficiency, emphasizing that the debtor’s right to be present at the sale of repossessed collateral is vital to the protection of Ms interests and that without compliance with the notice provision the secured party would have too free a hand in disposing of the collateral. Accord Spillers v. First National Bank (1980), 81 Ill. App. 3d 199, 400 N.E.2d 1057; see also Morris Plan Co. v. Johnson (1971), 133 Ill. App. 2d 717, 271 N.E.2d 404.

Other Illinois decisions, however, have implied that the rebuttable presumption approach is the appropriate view. The first case to mention this approach was Tauber v. Johnson (1972), 8 Ill. App. 3d 789, 291 N.E.2d 180. In that case a secured party who sold automobiles successfully sued the debtor/buyers for deficiency judgments after reselling the repossessed automobiles. The appellate court reversed the judgment, noting that the secured party had failed to give the debtors adequate notice of the sale. In addition, the plaintiff had induced the debtors to return the automobiles for repairs and then sold them instead. Plaintiff also charged an illegal rate of interest. Fmally, the court noted, the plaintiff failed to prove that the sale of the vehicles was commercially reasonable. In light of those facts, the court reversed the plaintiff’s deficiency judgment and ordered that judgment be entered for defendants.

The Tauber court’s reversal of the judgment for plaintiff did not consider or depend on wMch approach, absolute bar or rebuttable presumption, would be used. Therefore, its comments as to the latter approach are not controlling authority. In discussing the debtor’s remedy for a creditor’s failure to give notice the court observed that one measure of damages could be the difference between what the repossessed car was actually sold for and the price it would have brought had defendant been notified of the sale. The court went on to note that “[h]ad defendants received notice, they could have purchased the car for the amount still due on the contract and eliminated the deficiency altogether, as there is a presumption that the secured collateral is worth at least the amount of the debt and the secured party has the burden of proving the amount actually collected was commercially reasonable. [Citations from other jurisdictions.] If the secured party cannot sustain his burden of proving a commercially reasonable resale he may be denied the amount of the deficiency. [Citations from other jurisdictions.]” (Emphasis added.) 8 Ill. App. 3d 789, 794.

From the above-quoted passage, other Illinois courts have apparently inferred that Illinois follows the rebuttable presumption approach. (See Chicago City Bank & Trust Co. v. Wilson (1980), 86 Ill. App. 3d 452, 407 N.E.2d 964; Lake Shore National Bank v. McCann (1979), 78 Ill. App. 3d 580, 396 N.E.2d 1301; General Foods Corp. v. Hall (1976), 39 Ill. App. 3d 147, 349 N.E.2d 573; National Boulevard Bank v. Jackson (1981), 92 Ill. App. 3d 928, 416 N.E.2d 358.) None of these cases, however, contain a comparative analysis of the two approaches. Moreover, in McCann and Chicago City Bank, the courts found that adequate notice had been given; therefore, the question of the legal consequences of a secured party’s failure to give presale notice was obviated. In General Foods Corp. the court framed the issues as (1) which party had the burden of proving that the notice provision had been satisfied and (2) whether the court abused its discretion in granting a judgment in favor of the secured party. The court reversed the judgment and remanded for further proceedings, holding that the secured party had the proof of establishing that proper notice was given and that the record was insufficient to sustain the judgment. Only in National Bank v. Jackson did a reviewing court hold that a debtor did not receive proper notice and yet still affirm a judgment for the secured party on the basis of evidence indicating that the sale was commercially reasonable.The Jackson opinion does not, however, discuss the absolute bar rule or any of the cases which follow it.

After studying the relevant cases and Code provisions we agree with the Stensel court that the line of cases which follows the absolute bar theory is the better reasoned and that lack of proper notice “taints” the entire sale. (Stensel v. Stensel (1978), 63 Ill. App. 3d 639, 643, 380 N.E.2d 526, 529.) The debtor’s right to redeem the collateral or to be present at its disposition is too important to be neutralized by construing the notice requirement as anything less than a condition precedent to the secured party’s right to recover a deficiency judgment. The rebuttable presumption approach, in effect, erases the mandatory language of section 9 — 504(3) and gives the secured party freedom to disregard the notice provision altogether, with relatively little impediment to recovering a deficiency. We conclude, therefore, that when a secured party fails to give reasonable notice before disposing of repossessed collateral, he is barred from recovering any deficiency.

The aggrieved debtor can raise lack of notice as a defense to a deficiency suit or in a section 9 — 507(a) suit against the secured party for damages, which is the situation in the pending case. We find no error in the trial court’s finding that Dodge’s losses from the Bank’s violation of section 9 — 504 were equal to the amount that the Bank unilaterally assessed against the reserve fund as its “deficiency” remaining after it sold the repossessed collateral. Accordingly, we affinn the trial court’s judgment of $20,825.45 for Dodge.

Affirmed.

LORENZ and ME JDA, JJ., concur.

      Dodge was awarded $24,148.09 plus interest and costs for a total of $27,983.24, less a set-off amount of $7,157.79 for a final award of $20,825.45. The set-off was for money that the Bank claimed Dodge owed it under a provision of the agreement involving prepayment account refunds.

      This presumption has the effect of extinguishing the debt.

      Moreover, by the Bank’s actions Dodge was denied its right to pay off the Bank on accounts in default and to repossess the automobiles itself. It is quite possible that Dodge, as an automobile dealer, could have obtained a higher price for the vehicles than did theBank.

      In the previous appeal the Bank argued that it did not send notice to Dodge because it did not realize Dodge was an Article 9 debtor. While this does not excuse the Bank’s obligation, it does point up one of the potential problems that may arise when a business contract is not fully analyzed as a secured transaction. For a useful guide to identification and analysis of Article 9 issues see Swygert, Secured Transactions under Revised Article Nine: Recognition of Legal Issues Through Identification and Phase Analysis, 22 De Paul L. Rev. 317 (1972).