author: Mr. JUSTICE ENGLISH

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ules Brown, Defendant-Appellant.
    (No. 55435;

    First District (5th Division)
    May 11, 1973.
    Gerald W. Getty, Public Defender, of Chicago, (James N. Gramenos, Assistant Public Defender, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle and George Pappas, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE ENGLISH

delivered the opinion of the court:

When defendant’s case was in this court last year, we felt obliged to dismiss the appeal on the ground that we lacked jurisdiction by virtue of Supreme Court Rule 606(a), a purported notice of appeal having been filed beyond the time limit prescribed in Rule 606(b), and without the presentation of a petition for leave of this court to file a late notice of appeal pursuant to Rule 606(c). Ill. Rev. Stat. 1971, ch. 110A, par. 606.

The case is now before us again on reversal by the Illinois Supreme Court (No. 45085, March 20, 1973) which held that we had abused our discretion in not considering as a proper Rule 606(c) petition, defendant’s alternative request contained in his petition for rehearing that his rehearing “petition be considered as a late notice of appeal nunc pro tunc, to the date of the plea of guilty.” We therefore do so, and grant leave to appeal.

In furtherance thereof, and in accordance with Rule 606(c), we hereby order the clerk of this court to transmit a copy of defendant’s petition for rehearing filed herein on February 22, 1972, to the clerk of the circuit court for filing as of October 17, 1969, and with direction that it be considered as the notice of appeal in this case. The resulting lateness in filing the record, briefs and excerpts is hereby excused.

Turning to the appeal as presented in defendant’s briefs, there is only one point raised: that his conviction should not stand because the court had not adequately advised him of his rights when he pleaded guilty.

As our opinion, we adopt the following concise statement of the case contained in the dissenting opinion filed by Mr. Chief Justice Underwood:

“It is abundantly clear from the record that defendant and his counsel had negotiated this plea of guilty as a means of disposing of eight armed-robbery charges then pending against him. The 3-5 year sentence then, imposed had been agreed upon by defendant, his counsel and the State’s Attorney. There is no suggestion made to us that defendant is not guilty, that he was in any way misled as to the offense to which he was pleading guilty or the sentence which would be recommended. The recommended sen- ■ tence was imposed, and it is not suggested to be excessive. In short, it is entirely clear that no element of unfairness to defendant in the conduct or completion of the plea-negotiation proceedings is alleged to exist.
It is undisputed that defendant was properly admonished as to the consequences of his guilty plea and that he was apprised of his right to appeal notwithstanding that plea.”

The judgment is affirmed.

Affirmed.

DRUCKER; P. J., and LORENZ, J„ concur.


source: Caselaw Access Project

author: Mr. JUSTICE STOUDER

license: Public Domain

text:
    Frank Costello, a/k/a Frank Castelli, Plaintiff-Appellant, v. Dominic Castelli et al., Defendants-Appellees—(John Castelli et al., Plaintiffs-Appellees.)
    (No. 72-204;
    Third District
    May 21, 1973.

      Rehearing denied July 11, 1973.

      Louis Walter, Jr., of Ohio, Illinois, for appellant.
    John Olivero, of Peru, for appellees.
   Mr. JUSTICE STOUDER

delivered the opinion of the court;

This is an appeal by Frank Costello, plaintiff-appellant, from an adverse judgment by the Circuit Court of Bureau County in a suit filed in equity for an accounting. The appellant and two of his brothers, John and Anthony Castelli, brought the action against their two other brothers, Dominic and Peter Castelli, defendants-appellees.

The five brothers owned real estate in Bureau County as tenants in common which was devised to them by the will of their father, Edward Castelli, who died in October, 1944. The property consisted of 174 acres of farm land, 4 dwelling houses and 5 vacant lots. Under the terms of the will the property was to be divided between the five sons in equal shares, subject to certain conditions which would be a charge on the real estate. These conditions provided that the decedent’s wife, Letizia, the mother of the parties to this suit, was to be cared for and supported by her five sons and in addition was to be paid by the sons a sum of $200 per annum during her life. Also, the five sons were to pay a specific sum to each of the decedent’s three daughters.

Following the death of the father only the defendants, Dominic and Peter, remained at home with their mother on the farm premises. They farmed the land, rented the other property owned by the brothers, collected the rents and profits and cared for their mother. The conditions of the will of Edward Castelli were performed, the recipients having received the sum provided by the will. Upon the death of Letizia, the mother, on October 3, 1967, the plaintiffs demanded an accounting from the defendants claiming they were entitled to a share of all profits from the death of their father in 1944 until, the day this suit was filed, February 3, 1969.

In addition to affirmative defenses of laches and estoppel the defendants filed a counter-complaint for an accounting in the event plaintiffs were granted relief, in which they alleged appellant, Frank Gastello, received money and farm equipment from the defendants coming out of the rents and profits and that this was used to assist Frank in starting his own farm operation. Also, defendants alleged certain improvements were made on the farm premises, the cost of which all the brothers should share.

Although the finding of the trial court is somewhat vague, the court’s order is that an accounting be made to determine the rents and profits due appellant accruing since October 3, 1967, the date of the mother’s death. This order was based on the finding of the terms of an agreement between Frank Costello, Dominic Castelli and their mother. It is undisputed that an agreement was made, rather it is the terms of it which are in dispute.

It is alleged by the appellant that the agreement was that Dominic, being the executor of his father’s estate, should keep books and records of all transactions in the family business and upon the death of the mother, there would be an accounting and all profits and proceeds from the property would be divided between the five brothers. The defendants’ allegation is that they agreed that Peter and Dominic would operate the farm, pay expenses and care for their mother with any excess profits to be kept by them as payment for their time and labor. The property would be divided into five shares at the death of the mother, and therefore, no accounting of profits was required prior to the mother’s death.

After giving our consideration to the conflicting evidence on the question of whether the agreement was that the appellant forego his right to profits prior to the mother’s death, we are of the opinion that there was sufficient evidence to support the finding of the trial court. The testimony of defendant, Dominic Castelli, was that Frank agreed everything made after paying all expenses would be kept by Dominic and Peter for their trouble and labor while the mother was living. A sister of the parties, Virginia Castelli, who testified for the defendants, stated.she was present when the agreement was made and the agreement was as alleged by the defendants. In view of the fact that the appellant testified Dominic agreed to keep records and books, it is important to note that the failure of the appellant to ascertain whether books and records were in fact being kept by Dominic during the period between the death of the father and of the mother, indicates an agreement that appellant was not to receive profits for this period.

The cases cited by the parties concerning the statute of limitations and the defense of laches are not controlling since the trial court disposed of the issue of rents and profits prior to the mother’s death by the finding on the terms of the agreement. The question on appeal concerns whether the evidence supports this finding. The appellant cites cases in support of the general rule that when one of two tenants in common receives rent, the tenant not in possession is entitled to an accounting. (Regan v. Regan, 192 Ill. 589, 61 N.E. 842 and Wooley v. Schrader, 116 Ill. 29, 4 N.E. 658.) Although we do not dispute the existence of this rule, it is not controlling in the present case since an agreement settling this question was found to have been made by the parties.

For the foregoing reasons, we are of the opinion that the judgment of the trial court should be affirmed.

Judgment affirmed.

ALLOY, P. J., and SCOTT, J., concur.


author: Mr. JUSTICE SIMKINS

text:
    Donald McKinsey, Plaintiff-Appellant, v. William T. Morrissey, Defendant-Appellee.
    (No. 11834;
    Fourth District
    May 24, 1973.

      Rehearing denied July 17, 1973.

    Fellheimer & Fellheimer, of Pontiac, (David Vogel, of counsel,) for appellant.
    Thompson & Strong, of Pontiac, (Kenneth L. Strong, of counsel,) for appellee.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Plaintiff-Appellant Donald McKinsey brought an action against the defendant-appellee William T. Morrissey for personal injuries allegedly caused by the defendant’s negligence. A jury verdict was returned in favor of the defendant. The trial court denied plaintiff’s motion for a directed verdict on the issue of liability as well as his motions for judgment notwithstanding the verdict and for a new trial. Plaintiff brings this appeal from the judgment of the circuit court of Livingston County.

Plaintiff was injured when his vehicle was struck by that driven by defendant at the intersection of Odell Road and Cemetery Road near U. S. 66. Odell Road is a two-lane running east and west which intersects at a 90° angle Cemetery Road running north and south. On the northwest corner of the intersection there was a Standard Oil Station, and there was a Mobil Oil Station at the southwest corner of the intersection. Traffic moving east on Odell Road was governed by traffic lights on the southwest corner of the intersection, and traffic moving south on Cemetery Road was governed by stop signs at the intersection. Defendant was headed south on Cemetery Road and was unable to stop at the stop sign because of brake failure. He hit plaintiff’s van truck, which was stopped at the stoplight. During the trial, defendant testified that his brakes suddenly failed and at a distance of 225 feet from the intersection. Plaintiff, on the other hand, stressed the fact that there was evidence indicating that defendant’s brake failure was not sudden and that it had in fact occurred %0th of a mile prior to the stop sign. Plaintiff further argued that defendant’s failure to keep the brakes in good repair was in violation of 111. Rev. Stat. 1967, ch. 95V2, par. 211. Defendant testified that shortly before the collision he had used his brakes which worked properly. He also related that as he approached the intersection he pushed on the brake pedal which went to the floor, pulled on the emergency brake, which also failed; then tried, unsuccessfully, to put the transmission into first gear to slow his car’s progress. Illinois State Trooper Wall, who investigated the accident checked defendant’s foot brakes and testified “I opened the door and put my foot on them and they went to the floor without any hold on them at all.” Defendant testified that he had had the brakes worked on the week before the accident.

Plaintiff argues that “A driver relying upon the doctrine of latent defects in his brakes must prove by a preponderance of the evidence that the alleged latent defects were unknown to him, and that he could not have discovered the alleged latent defects by the exercise of ordinary care, as well as that the collision was solely and proximately caused by the failure of his brakes.” In support of this proposition he cites Savage v. Blancett, 47 Ill.App.2d 355, 198 N.E.2d 120. In Blancett, however, the court was dealing with a special defense pleaded by the defendant and with the propriety of instructions relating to that issue. Here defendant plead no affirmative defense, but assuming, arguendo, that the defendant had the burden of proof on the proposition asserted, the jury was never so instructed. Neither plaintiff nor defendant tendered an instruction such as suggested in Blancett, and the legal issues involved in the “doctrine of latent defects” were therefore never presented to the jury. Instead the parties were content to permit the jury to consider the evidence, without instruction, and to utilize it in determining whether or not defendant was negligent at the time of the occurrence in question. Had the jury made a finding on the issue of latent defect in the braking system, it would have been pertinent to inquire as to the sufficiency of the evidence to support the finding. Here the jury was not asked to pass on the issue by means of an instruction nor was it told what elements comprise the defense. There is no merit to plaintiff’s contention as to this assignment of error.

We find no error of law in this proceeding and the trial court was correct in its decision that all the evidence when viewed in its aspects most favorable to the defendant does not so overwhelmingly favor the plaintiff that no contrary verdict based upon the evidence could ever stand. Thus, under the requirements of Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504, the trial court properly denied plaintiff’s motion for a judgment notwithstanding the verdict. Furthermore, we conclude that the verdict of the jury was not against the manifest weight of the evidence and the circuit court was correct in denying plaintiff’s motion for a new trial.

A further recitation of the factual testimony would in our judgment serve no useful purpose and an opinion thereon would have no pre-cedential value. Accordingly, pursuant to Rule 23 of the Supreme Court rules, the judgment of the Circuit Court of Livingston County is affirmed.

Judgment affirmed.

CRAVEN, P. J., and SMITH, J., concur.


text:
    Doyle Johnson, Plaintiff-Appellant, v. Country Life Insurance Company, Defendant-Appellee.
    (No. 11779;
    Fourth District
    May 24, 1973.

      Modified opinion upon denial of rehearing July 20, 1973.

      Ryan and Heller, Ltd., of Mattoon, (Harlan Heller, of counsel,) for appellant.
    Dilsaver, Gilkerson & Spitz, of Mattoon, (Joseph R. Spitz and Thomas F. Ryan, of counsel,) for appellee.
   Mr. JUSTICE SIMKINS

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

On January 1, 1970, plaintiff-appellant, Doyle Johnson, and defendant-appellee, Country Life Insurance Company, entered into an agency manager’s agreement which provided, in pertinent part, as follows:

“19. TERMINATION OF AGREEMENT. This Agreement shall take effect upon the effective date set forth below, and shall continue in full force and effect until December 31, following such effective date, and from year to year thereafter, except that the same may be terminated by either party hereto at any time upon the giving of thirty (30) days notice in writing to the other party, and shall terminate upon the death of Agency Manager. However, upon termination of this Agreement, all commissions and over-writing provided for herein shall remain and be payable in accordance with the provisions of this Agreement. * * *
23. COMMISSIONS AFTER OTHER TERMINATIONS. In the event Agency Manager ceases to represent Company for reasons other than those covered in Paragraphs 20, 21 and 22 and does not represent any other life insurance company in any capacity or solicit or assist in the sale of life insurance, annuities or health insurance of other companies in this state or in any state or territory in which this Company is authorized to do business, renewal commissions and overwriting on paid-for business shall be paid to Agency Manager as follows: * # *
In the event Agency Manager ceases to represent Company and represents any other life insurance company in any capacity or solicits or assists in the sale of life insurance, annuities or health insurance of other companies in this state, or in any state or territory in which this Company is authorized to do business, no renewal commissions or overwriting shall be payable, and all rights and interests of Agency Manager shall thereupon cease.”

On July 27, 1970, effective August 21, 1970, the defendant terminated plaintiffs employment by notice as provided in section 19. Plaintiff brought suit for declaratory judgment alleging section 23 of the agreement to be void and against public policy in that “* * * the same will deprive him of his livelihood and will deprive him of vested renewals which he has earned” and that in the event he is employed in the insurance field in the State of Illinois or in any State or territory in which defendant is authorized to do business, he will forfeit all renewals previously earned. The trial judge found the agreement to be a valid, binding contract, not in restraint of trade nor contrary to public policy. He also found that section 23 of the agreement did not deprive plaintiff of the right to be gainfully employed. Plaintiff appeals from that judgment.

Plaintiff Johnson testified in his own behalf and the following is a summary of his testimony. He had not engaged in the business of selling life and health insurance for any company other than defendant since the execution of the agreement in question. He had been with the company since 1949, and had been an agency manager in Coles County, selling life insurance for defendant since April 1, 1952. Johnson further testified that he had never sold insurance in any State other than Illinois, nor in any county other than Coles since 1952. It was his impression that defendant did business in eleven States. At the time of trial, plaintiff was selling automobile, fire and liability insurance but had not broken even in that business. He stated that sale of life insurance is best when done in one locality to customers with whom the agent is acquainted, and in whom they have confidence. Defendant ranked its agency managers throughout the State of Illinois and plaintiff was in the top ten of 101 counties. He testified that he could reasonably expect to receive $63,250 in renewals from business that was already “on the books” when he was terminated.

Under the contract the “renewals” are percentages of the annual premiums paid by the insured to keep the policy in force. The plaintiff was entitled to commissions on the annual premiums commencing with the second year of the policy and continuing through the tenth year.

The initial question posed by this appeal is whether the provisions of section 23 of the agreement between plaintiff and defendant constitute a contract in restraint of trade. If it is not, then the judgment of the trial court must stand. If the contract is in restraint of trade the common law test of reasonableness as to time, area, its effect upon the parties and the public becomes the pertinent inquiry. As demonstrated by House of Vision v. Hiyane, 37 Ill.2d 32, 225 N.E.2d 21; Canfield v. Spear, 44 Ill.2d 49, 254 N.E.2d 433, for example, cases involving restraint of trade have most commonly arisen in the context of a contract which completely prohibits the employee from engaging in competition with his former employer within a designated area for a specified period of time. We are unaware of any case in this State which has involved the covenant here in question.

Other jurisdictions have passed on the question and have, in most instances, rejected the contention that a contract provision, such as that contained in section 23, is in restraint of trade, and, in some instances, found the restraint to be reasonable. These cases are collected in 36 A.L.R.3d 958, beginning at p. 1024.

In Masden v. Travelers Ins. Co. (8th Cir. 1931), 52 F.2d 75, the contract provided for forfeiture of renewal commissions in the event, that the employee, within one year of termination of the contract, became employed by another insurance company and worked in the territory specified in the agreement. The court found the provision to be enforceable since it was limited both as to time and area.

Similar provisions have been upheld in the following cases. The time and area in each case was limited, however those factors were mentioned only in Stancliff, infra. Himes v. Masonic Mut. L. Assoc. (1926), 215 Ala. 183, 110 So. 133 (2 years in specified area); Bohrnstedt v. Travelers Ins. Co. (1928) 123 Or. 539, 262 P. 938 (1 year in specified area); Stancliff v. Southland L. Ins. Co. (Tex. Civ. App. 1943), 172 S.W.2d 521 (2 years in specified area).

At the other end of the spectrum are cases such as Chase v. New York Life Insurance Co. (1905), 188 Mass. 271, 74 N.E. 325, which involved an agreement providing for the payment of renewal premiums following termination of the agency provided that the agent "shall not be engaged in the business of life insurance for any other company, in any capacity whatever, in the State of Massachusetts, during the maturity of said renewal commissions”. The court, in denying the plaintiffs claim for commissions said, “As the plaintiff sues upon the contract, he must abide by its terms * * *” and held that since plaintiff had chosen, in violation of the agreement, to engage in the business of life insurance in Massachusetts he could not recover. (Emphasis added.)

Another much cited case is Barr v. Sun Life Assurance Co. (1941), 146 Fla. 55, 200 So. 240. There the agreement between the agent and the company provided for payment of commissions on renewal premiums for a period up to ten years and continuing after termination of the agents employment provided “that the agent does not become connected with or do business * « # with any other life assurance company.” Thus the time limitation was measured by the period of time during which commissions on renewals were to be paid, and the area was unlimited. The court sustained the contract saying, “There is nothing in this contract which precludes the employee from accepting other like employment after the termination of his contract with Sun Life Assurance Company. Therefore, it is not a contract in restraint of trade * * *.” (Emphasis added.)

In Pankey v. Federal Life Insurance Co. (1936), 287 Ill.App. 132, 4 N.E.2d 642, the plaintiff sued to recover renewal" commissions accruing after termination of his employment with defendant. The contract provided that the right to commissions would terminate should plaintiff “switch or attempt to switch any policyholder or agent of the Company.” The principal issue was whether or not there was sufficient evidence to sustain the jury’s finding that plaintiff had switched policyholders in contravention of the contract. Restraint of trade was not an issue.

Van Pelt v. Berefco, Inc. (1965), 60 Ill.App.2d 415, 208 N.E.2d 858, involves an issue peripheral to the issue here. The plaintiff sought declaratory judgment that he was entitled to retirement benefits. The court, applying Massachusetts law, upheld a provision in a retirement plan which provided that if a retiree became associated with the operation of any business involving the manufacture or sale of products similar to those produced by the employer, the retiree shall be deemed to have waived a certain amount of retirement income benefits. The court stated: “There is no restraint here upon plaintiff’s right to future employment. He is free to engage in competition with new Berry without restraint or interference by defendants, but he is not free to do so while accepting benefits of the retirement plan to which he contributed nothing.” (Emphasis supplied.) (60 Ill.App.2d at 428.) Cases involving forfeiture of renewal earnings under an insurance agency contract and cases involving forfeiture of future pension rights, for engaging in competition, have been treated as being governed by the same principles. (Rochester Corp. v. Rochester (4th Cir. 1971), 450 F.2d 118.) Other courts, however, do not follow the Massachusetts rule and have reached a result opposite from that in Berefco in cases involving forfeiture of pension benefits in the event that the ex-employee is subsequently employed by a competitor. For a compilation of cases involving the problem, see 50 Cornell L. Q. 673, and 61 Nw. U. L. Rev. 290.

We have cited representative cases which set forth the rule followed in the various jurisdictions which have passed on the issue here presented. The citations by no means exhaust the list but they are, we believe, fairly representative. We are mindful that “* * * decisions of other jurisdictions, while not determinative, are entitled to respect.” (Cooper v. Hinrichs, 10 Ill.2d 269, 275, 140 N.E.2d 293.) But the weight to be given to such precedents is dependent upon the persuasiveness of the reasoning which supports them. Our responsibility therefore, is to examine the rule, the reasons supporting it, and its effect upon those to whom it applies.

Analysis of the cases, and particularly those which uphold covenants as sweeping as the one incorporated in this contract, indicates that the rationale supporting the conclusion that the covenants are not in restraint of trade seem largely predicated upon two propositions: (1) That the condition upon which the employee is to receive commissions on renewal premiums is a contractual one into which he is free to enter, and by which he must abide in order to receive the commissions; and (2) The contract in no way precludes him from working for another company and engaging in his occupation. These two factors then lead to the conclusion that there is no restraint of trade.

With reference to the first of the two propositions: The fact that the parties are “free to contract” does not, in and of itself, operate to bestow legitimacy upon each and every provision contained in the instrument. The cases completely prohibiting the employee from pursuit of his occupation for a period of time in a specified area also arise from contract provisions into which the parties were “free to enter”. (House of Vision v. Hiyane, 37 Ill.2d 32, 225 N.E.2d 21; United Travel Service, Inc. v. Weber, 108 Ill.App.2d 353, 247 N.E.2d 801; Professional Business Management v. Clark, 83 Ill.App.2d 236, 227 N.E.2d 371.) In such cases the courts of this State have not inclined to the view that the freedom and right to contract removes from scrutiny the provisions of the contract when it is charged that they are in restraint of trade. To hold otherwise is to provide the answer by reciting the question. It is begging the question to say that the parties are free to contract, did so, and therefore are bound by it no matter what it contains. We do not agree with the proposition that since the parties are free to contract concerning renewal premiums, it necessarily follows that the provisions are not in restraint of trade.

Neither can we agree with the second proposition upon which the rule is bottomed. The cases repeat the statement, in various ways, that provisions such as contained in section 23 of this agreement, do not obligate the employee to desist from earning a livelihood in the insurance business, or that the provision does not in any way restrain plaintiff from following his trade, profession or business; that there is nothing in the provision which precludes the employee from accepting other like work. We respectfully disagree with this analysis of the contract, terms for the reason that it seems to us to be based upon concepts completely divorced from practical reality. True, the terminated employee cannot be restrained, i.e., enjoined, from pursuing his occupation nor is he obligated to refrain from so doing, but this is only half the problem. If he does elect to engage in his occupation what consequences follow as a result of the contractual provision? He forfeits his right to commissions which he would have received but for the contractual terms, and this after he has performed all of the services required of him during his relationship with the defendant. Commissions on renewal premiums is a method by which defendant agreed to compensate plaintiff for the services he rendered, and to say that the prospective loss of those commissions does not operate to significantly restrict his right to engage in the pursuit of his occupation following termination of his relationship with the company, and by the same token reduce, if not eliminate competition is, in our view, to divorce the practical application and consequences of the covenant from the hard facts of economic reality. Here the plaintiff has worked only in the State of Illinois for the defendant in the pursuit of his occupation and his efforts have apparently been confined to Coles County since 1952. Under the restrictions of section 23 of the contract he is prohibited, except on forfeiture of his right to renewal commissions, from representing any other life insurance company in any capacity not only in Illinois but in the eleven-State .area in which it appears to be authorized to do business. He is then precluded, for example, from working in that area as an actuary, claims supervisor or in any other capacity for any other company. To state the restriction is to demonstrate its breadth. The contract clearly extracts a penalty of significant proportions in the event that plaintiff seeks to engage in his occupation. We hold that portion of section 23 which prohibits plaintiff from representing any other life insurance company in any capacity, or from engaging in the sale of insurance policies except on forfeiture of renewal premiums is a provision in restraint of trade. “The validity of a contract in restraint of competition is conditioned upon its reasonableness in terms of its effect upon the parties to the contract and the public. ‘In determining whether a restraint is reasonable it is necessary to consider whether enforcement will be injurious to the public or cause undue hardship to the promisor, and whether the restraint imposed is greater than is necessary to protect the promisee. [Citations omitted.]’ ” House of Vision v. Hiyane, 37 Ill.2d 32, 37, 225 N.E.2d 21.

Tested by these standards the covenant in question does work undue hardship on the plaintiff, the restraint imposed is far greater than necessary to protect the defendant. That portion of section 23 which provides for payment of renewal premiums upon termination of plaintiff’s representation of the defendant we hold to be severable from that portion which seeks to impose a restraint herein held to be illegal. The provisions in question do not become operative until termination is effected and we refuse to hold that plaintiff’s right to renewal commissions was conditioned solely on compliance with an illegal condition and that his right to the commissions falls with the condition. This would indeed leave the plaintiff without a remedy. Plaintiff is entitled to the commissions and we so hold. (Mackie v. State Farm Mutual Automobile Insurance Co., 13 Mich.App. 556, 164 N.W.2d 777.) We do not mean to imply that the defendant has no legitimate interest in the area of customer contact which is undeserving of protection under certain circumstances, but it has continued access to the courts if that interest be unfairly invaded.

For the reasons above set forth the judgment of the Circuit Court is reversed.

Judgment reversed.

SMITH, P. J., and TRAPP, J., concur.


author: Mr. PRESIDING JUSTICE STAMOS

text:
    St. Paul Fire & Marine Insurance Company, Plaintiff-Appellee, v. Michelin Tire Corporation et al., Defendants-Appellants.
    (No. 55260;
    First District (2nd Division)
    May 15, 1973.

      Rehearing denied June 5, 1973.

      James B. O’Shaughnessy and Sheldon A. Zabel, of Schiff, Hardin, Waite, Dorschel & Britton, of Chicago, for appellant Michelin Tire Corporation.
    Joseph B. Lederleitner, of Pretzel, Stouffer, Nolan & Rooney, of Chicago, for appellant Smith Tire Company.
    Howard & French, of Chicago, (Richard G. French, Stuart N. Litwin, and Gary E. Dienstag, of counsel,) for appellee St. Paul Fire and Marine Insurance Company.
   Mr. PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

This is an indemnity action which seeks recovery of sums paid in settlement to the estates of four individuals killed in a 1962 collision between the car in which they were riding and a truck operated by plaintiff’s insured. The case was tried upon a theory of strict liability in tort for the manufacture and sale of a defective product. After a bench trial judgment for plaintiff was entered in the stipulated amount of $39,000. Two contentions are raised on appeal: (1) that plaintiff’s failure to give notice to defendants prior to settling the initial litigation imposedupon plaintiff the duty to subsequently prove the liability of its insured (in order to avoid the status of a volunteer) and the reasonableness of the settlement, and that such burden was not met; (2) that the evidence on the issue of a manufacturing defect required a finding in favor of defendants, or, in the alternative, that the finding in favor of plaintiff on that issue was contrary to the manifest weight of the evidence.

On August 29, 1962 a truck operated by an employee of the Pillsbury Company (hereinafter referred to as Pillsbury) collided head-on with an automobile occupied by four individuals, all of whom were killed. The immediate cause of the collision was apparently a blowout in the truck’s front left tire, causing the truck to swerve into the path of the oncoming car. The tire in question was manufactured by defendant Michelin Tire Corporation (hereinafter referred to as Michelin) and sold by defendant Smith Tire Company (hereinafter referred to as Smith). Lawsuits on behalf of the estates of each of the deceased occupants were filed in the Circuit Court of Cook County against Pillsbury, the driver of the truck and the lessor of the truck. The complaints alleged numerous negligent and careless acts and omissions, including failure to maintain the truck in a safe operating condition and failure to equip the truck with safe tires. Pillsbury and its insurance carrier, St. Paul Fire and Marine Insurance Company, settled all these claims for the total amount of $38,950. Subsequently, Pillsbury filed a complaint for indemnity against defendants, alleging that the tire on the truck was defective and was the proximate cause of the collision. In a second amended complaint, St. Paul Fire & Marine Insurance Company, which had paid the entire settlement, was substituted as plaintiff.

OPINION

Defendant’s first contention is that the settlement of the initial lawsuit, without notice to the prospective indemnitors, imposed upon plaintiff tire burden of proving that plaintiff’s insured was in fact liable to the four estates and that the settlement amounts were reasonable. It is asserted that this burden, in addition to the burden of proving the primary liability of the indemnitor, is assumed by any party who voluntarily pays a settlement without such notice. No direct authority is cited for this proposition, and our research has uncovered no case concerning the precise issue. It is a matter of first impression in Illinois.

We hold that, in addition to proving the primary liability of the indemnitor for the injury occasioning a settlement, an indemnitee who settles without notice to the prospective indemnitor need prove only that, by settling, he was responding to a reasonable anticipation of personal liability rather than acting as a mere volunteer. The reasonableness of the amounts paid in settlement is a matter bearing solely upon the issue of damages.

That a party in plaintiff’s posture need not prove his or his insured’s negligence, but need only establish potential liability, is supported by case law and by policy considerations. In Sleck v. Butler Brothers, 53 Ill.App.2d 7, 202 N.E.2d 64, an injured workman sued the owners of the building in which he had been injured and the general contractor for the job on which he had been working. The complaint alleged general negligence and violation of the Structural Work Act. Defendants filed third party complaints against plaintiff’s immediate employer, seeking indemnity on a theory of active-passive negligence. After giving notice to the employer, defendants settled with plaintiff, and an appropriate consent order was entered. Tire indemnity action proceeded to a bench trial and a directed verdict for third party defendant. On appeal, third party defendant asserted that the judgment in its favor was justified by the gratuitousness of the settlement by third party plaintiffs; that the evidence clearly showed that third party plaintiffs were not “in charge” of the operation in which plaintiff had been injured and could not have incurred liability. In rejecting this contention, the appellate court enunciated and applied the appropriate rule as follows:

“[T]he third-party plaintiffs are not volunteers; a party may seek contribution even though it has not been judicially determined that it is liable to the injured party. The Sack and Gulf cases heretofore cited are in point. It is necessary only that the person seeking contribution has been subjected to liability because of the wrongful conduct of another. In Boston v. Old Orchard Business Dist., Inc., 26 Ill.App.2d 324, 329, 168 N.E.2d 52 (1960), the court stated:
‘Whether the legal principle upon which the third party complaint is based is contribution or indemnity, in either case the fact that a party against whom a legal liability is asserted made a fair settlement in good faith without a judgment having been entered against him does not prevent his seeking to enforce a claim for reimbursement against another person primarily responsible for the injury suffered by the plaintiff. * * *’
In the instant case the third-party plaintiffs were subjected to tort liability by the wrongful acts of the third-party defendant. Third-party plaintiffs Butler and Canal owned the building and had inspected the elevator before the third-party defendant began its work at the building. Third-party plaintiff Gallaher had contracted with the owners of the building to do the work in question and then subcontracted that work to the third-party defendant. These circumstances could reasonably be considered to create a question of fact as to whether the third-party plaintiffs were technically responsible for the work being done and technically liable to Sleek for failing to discharge a supervisory responsibility even though they were not guilty of any active common law negligence or any active violations of the Structural Work Act.” 53 Ill.App.2d 7, 17 — 18.

Defendants have offered no cogent reason why an indemnitee’s failure to give pre-settlement notice to a prospective indemnitor would warrant a different approach. See also, Allied Mutual Casualty Corp. v. General Motors Corp. (10th Cir.), 279 F.2d 455; Popkin Bros. Inc. v. Volk’s Tire Co., 20 N.J. Misc. 1, 23 A.2d 162.

We see no way in which plaintiff’s settlement either did or could prejudice defendants by depriving them of any defenses, whether negative or affirmative, which would otherwise have been available to them; that situation, of course, would be a very different matter. Our position is further supported by the established tenet that the law favors the amicable compromise and settlement of litigation. (I.L.P. Compromise and Settlement par. 2) A defendant who might otherwise be amenable to settlement in the initial action might well elect to seek vindication in that action, in which plaintiff would carry the burden of proving negligence, rather than in a subsequent indemnity action in which, under defendants’ contention, he would carry that burden. Settlements would be discouraged and a multiplicity of actions fostered.

In the case at bar it is manifest that plaintiff’s insured was confronted with a reasonable anticipation of liability. The pleadings filed on behalf of the decedents’ estates alleged facts and a variety of negligent acts and omissions by Pillsbury which could have supported a substantial judgment. Although we do not believe that it would be fatal to plaintiff’s action if those complaints had alleged only “active” negligence (Miller v. DeWitt, 37 Ill.2d 273, 290-291, 226 N.E.2d 630; Blaszak v. Union Tank Car Co., 37 Ill.App.2d 12, 184 N.E.2d 808; cf. D’Amico v. Moriarty Meat Co., 47 Ill.App.2d 63, 197 N.E.2d 445; Halligan v. Shulman, 31 Ill.App.2d 168; 175 N.E.2d 590), we note that Pillsbury was charged with failure to properly maintain and equip its vehicle, omissions which might constitute only “passive” negligence. (Shell Oil Co. v. Hercules Construction Co., 74 Ill.App.2d 166, 219 N.E.2d 392; Savage v. Blancett, 47 Ill.App.2d 355, 198 N.E.2d 120.) The parties stipulated to damages in the amount of $39,000, thus relieving plaintiff of its obligation to prove the settlement amounts. Therefore, the only element remaining to be proved was that defendant was jointly responsible for the injuries in a manner warranting recovery under any one of the numerous theories of indemnity recognized by Illinois case law. See Feirich, “Third-Party Practice,” 1967 U. Ill. L.F. 236.

Apart from the contentions discussed above, defendants have not disputed that plaintiff would be entitled to indemnification if it were established that the 1962 collision was occasioned by a blowout caused by a tire defect attributable to Michelin. This concession is well warranted. (Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182; Chicago & Illinois Midland Ry. v. Evans Construction Co., 32 Ill.2d 600, 208 N.E.2d 573; Texaco, Inc. v. McGrew Lumber Co., 117 Ill.App.2d 351, 254 N.E.2d 584; Shell Oil Co. v. Hercules Construction Co., supra: Restatement of Restitution § 95.) Accordingly, we will proceed to the issue of the sufficiency of the evidence.

Defendants contend that the evidence required a finding in their favor, or, in the alternative, that the finding in favor of plaintiff was contrary to the manifest weight of the evidence. This case was litigated upon a theory of strict liability in tort for the manufacture and sale of a defective product. It is by now well established in Illinois that strict products liability will be imposed only if the following three elements are established: (1) the injury or damage resulted from a condition of the product; (2) the condition was an unreasonably dangerous one; (3) the condition existed at the time it left the manufacturer’s control. (Suvada v. White Motor Company, supra; Dunham v. Vaughan & Bushnell Manufacturing Co., 42 Ill.2d 339, 247 N.E.2d 401.) There is no dispute that the injuries in the case at bar were occasioned by a blowout in a tire manufactured by one defendant and sold by the other. The basic point of contention at trial was whether the blowout was caused by a penetration of the tire by an external object lying on the road or was caused by an unreasonably dangerous condition existing in the tire when it left the manufacturer’s control. We will therefore confine our discussion to a review and analysis of only that testimony and those exhibits bearing directly upon this single determinative issue.

. Plaintiff’s case consisted primarily of the testimony of John Reffner, an expert in the field of chemical analysis. He testified as follows: He was the assistant director of the Institute of Material Science at the University of Connecticut, with responsibilities divided between research in microscopical analysis and administration. In 1956 he received a degree in chemistry from the University of Akron, where he had taken some courses in rubber chemistry and technology. He was employed for two and one-half years by B. F. Goodrich Company, working in. their physical testing laboratory with products other than tires, and in the microscopic laboratory with the entire line of products, including tires. In the course of his employment with B. F. Goodrich he had occasion to cut up slightly less than twenty Michelin tires for the purpose of microscopic analysis. Between his years at B. F. Goodrich and his arrival at the University of Connecticut he studied chemical microscopy at the University of Colorado, was employed by a research consulting laboratory and received a masters degree from the Illinois Institute of Technology. At the request of plaintiff’s attorney, Mr. Reffner had conducted a visual and microscopic examination of the left front tire of the Pillsbury truck to determine the cause of its failure. His examination revealed an 18" rupture in the tread and underlying plies of the tire, in addition to other smaller cuts and abrasions. The rupture bore no signs of scuffing, whereas the other cuts showed external damage. He found signs of smoothing and polishing on the internal surfaces of the rupture; the rubber components were separated from the radial ply wires; and the wires themselves were separated in a “necking down” fashion, characteristic of a break due to tension. On the basis of this examination Mr. Refiner concluded that the rubber surrounding the wires had failed mechanically, causing an internal "ply separation,” which expanded outward over a period of time and resulted eventually in a gross failure of the tire in the area of the 18" rupture. This conclusion was further supported by the presence of other “ply separations” and blisters in the interior portions of the tire. Mr. Refiner said that the “ply separations” resulted from defects or errors in the manufacturing process and that, in his opinion, “there was something defective in the manufacture of the tire.” This portion of his testimony was in conflict with earlier testimony that he found no defect in the manufacture of the tire; that the cause of the internal rupture was “very difficult to establish”; and that he “wouldn’t be able to say for sure that it was the manufacturing problem.”

On cross-examination Mr. Refiner admitted that radial ply wires might reflect tension breaks even after a blowout caused by external penetration. He also acknowledged that there were cuts and other signs of external force at the base of the 18” rupture on the tread of the tire, and that the exterior appearance of the tire was compatible with the possibility of external penetration. However, he discounted that possibility because of the exclusive “necking down” configuration of the severed wires, which indicated a tension break rather than a traumatic break. He reiterated his opinion that the blowout resulted from an internal defect.

Plaintiff introduced a number of exhibits into evidence. The Michelin tire was introduced in several pieces, one consisting of approximately 75% of the tire and the others consisting of cut-outs and cross-sections from the area of rupture. A series of photographs and photomicrographs of various portions of the tire were also introduced, but the record does not reflect the introduction by plaintiff of any photomicrographs of the severed radial ply wires.

Defendants relied primarily on the testimony of two expert witnesses. Mr. Robert G. Dunlop testified as follows: Since 1955 he had been president of Smithers Laboratories, an independent laboratory specializing in the testing of materials used in rubber compounds and in the testing of rubber products, including tires. Prior to assuming that position, he had spent 11 years with B. F. Goodrich Company engaged in all phases of tire manufacturing and testing. He had examined thousands of tires, some prior to distribution and some upon their return after field failures. Much of his testing experience involved intentionally induced tire failures with follow-up analyses and recommendations for improvements. He performed similar tests for two years with the General Tire and Rubber Company. Immediately prior to joining the Smithers Laboratories, Mr. Dunlop was self-employed as a consultant specializing in tire manufacturing and development problems. At the request of the attorneys for Smith Tire Company, he had conducted a visual, photographic and microscopic examination of the left front tire of the Pillsbury truck. His examination revealed that the tire had suffered a blowout in the vicinity of the same 18" rupture identified by plaintiff’s expert witness. There was evidence that “a moderately sharp solid instrument * * * impacted the tire, cutting and breaking the surface of the tread.” There were scratches and gouges leading from the first two ribs of the tread to the base of the rupture near the sidewall of the tire. The instrument apparently penetrated at this point and continued to rip circumferentially in the direction of rotation, breaking radial ply wires in the process. Photomicrographs were taken of the severed wires along the course of the rupture. Mr. Dunlop explained that the ends of a broken wire have a characteristic appearance depending on how the wire is broken. A wire which is broken as a result of tension has a “cup and cone” configuration and is thinner or “necked down” at the point of separation. A wire that is sheared has a sliced appearance. These contrasting configurations were illustrated by the use of diagrams and modeling clay. The photomicro-graphs of the rupture area revealed the presence of both configurations, indicating to Mr. Dunlop that some of the radial ply wires had been broken by a process of shearing and some by tension. The combination of surface markings and the wire configurations led him to conclude that the tire was initially penetrated by a foreign object, which sheared the radial ply wires in its path and caused a blowout, which, in turn, caused tension breaks in the remaining wires in the area of penetration. His findings were inconsistent with the possibility that an internal “ply separation” was the causative force. In addition to the presence of the surface cuts and gouges and the sheared wires, the internal surfaces of the alleged “ply separation” did not bear such characteristic traits as smoothing and polishing. There was no void to suggest the past existence of rubbing between two split surfaces; in fact, when the surfaces were realigned, they meshed almost perfectly. Thus, there was no basis for concluding that the 18” rupture was of internal rather than external origin. A similar opinion was rendered concerning the other alleged “ply separations” and blisters; they resulted from the tire “running flat” immediately subsequent to the blowout.

On cross-examination Mr. Dunlop admitted that portions of his written report identified the presence of only tension breaks in the radial ply wires and did not refer to shearing. He also agreed that, if an in- I ternal “ply separation” had been present, it would have reflected a flawed bonding procedure during the manufacturing process.

Mr. Sidney Bloor testified on behalf of the defendants as follows: He had been employed by Michelin Tire Company for 18 years and presently served as general manager for tire North American market. In his career with Michelin he had examined and analyzed between 30,000 and 45,000 Michelin tires. He stated that there exist three categories of “ply separations.” The first is an internal separation of rubber components over a considerable length of time. It is manifested by a phenomenon known as “crumbling of the rubber,” in which the rubbing together of the detached surfaces produces a fine rubber powder and a void in the area of separation. The second type of “ply separation” is similar to the first, but occurs over a shorter period of time, and is identified by a tackiness in the rubber and a strong lingering odor. The third type is a splitting or detachment and is caused by an external shearing force. Mr. Bloor was asked to examine cross sections of the 18" rupture from the Michelin tire and to express an opinion as to the category of separation present. He concluded that it was of the third type, a splitting by a shear force. There existed no voids, rubber powder or tackiness. The lines of shear were clearly visible and, when they were aligned, it created a “beautiful fit.” There also existed surface gouges and scratches leading to the point of rupture. In his opinion, the cause of the rupture was penetration by a blunt foreign object.

On cross-examination and in response to the trial judge’s inquiries Mr. Bloor stated that he had examined thousands of Michelin tires which had been returned as defective. He asserted that he did not discover a single manufacturing defect in any of those tires. This assertion was supported by the subsequent testimony of Michelin’s vice-president.

Defendants also introduced into evidence photographs and photo-micrographs. Included among these were photomicrographs of the ends of the severed radial ply wires, with the contrasting configurations highlighted.

Defendants contend that the trial court should have found in their favor at the close of all the evidence. They contend that neither the proof of a blowout nor the testimony of plaintiff’s expert witness established prima facie the presence of a manufacturing defect in the Michelin tire. Alternatively, it is contended that, assuming arguendo that plaintiff’s evidence established a prima facie case, defendants’ contrary evidence so preponderated that all the evidence, even when viewed in its aspects most favorable to plaintiff, so overwhelmingly favored defendants that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria & Eastern R.R., 37 Ill.2d 494, 229 N.E.2d 504.

We have accepted as undisputed that the immediate cause of the 1962 collision was a blowout in the Michelin tire on the Pillsbury track. However, proof of the occurrence of a tire blowout carries no implication of product defectiveness. The term “blowout” is merely descriptive of a sudden, forceful expulsion of air, usually from a pneumatic tire. It in no way suggests the cause for the expulsion, nor whether that cause is of internal rather than external origin. See Shramek v. General Motors Corp., 69 Ill.App.2d 72, 216 N.E.2d 244; Williams v. U.S. Royal Tires (La.App.), 101 So.2d 488.

In order to establish a prima facie case, plaintiff was obligated to prove by additional evidence that the blowout was caused by a defect in the Michelin tire which existed at the time the tire left the manufacturers control. (Suvada v. White Motor Co., supra.) To this end, plaintiff presented an expert witness, Mr. John Reffner, who expressed the opinion that the Michelin tire ruptured as a direct consequence of an internal “ply separation,” resulting from a defect in the manufacturing process. This opinion was based on the following facts: (1) the area of rupture bore no evidence of scuffing or other external damage; (2) the radial ply wires had been split in a “necking down” fashion, characteristic of a break due to tension rather than to shearing; (3) the internal surfaces of the rupture showed signs of smoothing and polishing; (4) other “ply separations” and blisters were found inside the tire. On cross-examination, however, Mr. Reffner abandoned his first supportive finding and qualified his second. He acknowledged the presence of cuts and gouges at the base of the 18" rupture, and admitted that an externally induced blowout might also result in-a tension breakage of radial ply wires. He also agreed that the exterior appearance of the tire was compatible with the possibility of external penetration. Nonetheless, he held to the opinion that this blowout was of internal origin and, in support, cited the total absence of externally sheared wires in the area of rupture.

On the basis of Mr. Reffner’s testimony and his apparent expertise in the field of microscopic analysis; we conclude that plaintiff established a prima facie case in strict products liability. We recognize that the term “ply separation” was never precisely defined; it is unclear whether it constitutes a disengagement of layers of bonded rubber plies, a decomposition of rubber components, or something else. However, this lack of clarity bears less on the sufficiency of the evidence than on its weight and on the credibility of the witness. We also recognize that the expert witness did not identify the specific defect causing the “ply separation,” but merely opined that the separation reflected an error in the manufacturing process. This opinion, in conjunction with other testimony and physical exhibits, was sufficient. A manufacturing defect may be proven by either direct or circumstantial evidence. (Bollmeier v. Ford Motor Co., 130 Ill.App.2d 844, 265 N.E.2d 212; Nolan v. Shaf Manufacturing Co., 128 Ill.App.2d 19, 261 N.E.2d 209; Gibbs v. Proctor & Gamble Manufacturing Co., 51 Ill.App.2d 469, 201 N.E.2d 473.) Our review of the abundant products liability case law reveals an almost exclusive reliance on circumstantial evidence for the proof of defects. This has engendered a proliferation of law review commentary categorizing and analyzing the varieties of circumstantial evidence prevalent in products liability cases. (Rheingold, “Proof of Defect in Product Liability Cases,” 38 Tenn. L. Rev. 325; Note, “Proof of Defect in a Strict Products Liability Case,” 22 Maine L. Rev. 189; Note, “Products Liability and the Problem of Proof,” 21 Stan. L. Rev. 1777.) It would unduly lengthen our opinion to fully critique those articles. We need only note two categories of circumstantial evidence which are recognized in most of these articles: (1) expert opinion that the product was defective; (2) evidence negating alternative causes. Both of these categories were represented in the testimony of plaintiff’s expert in the case at bar. To require identification of the precise defective procedure or mechanism which created the “ply separation” would be to place an intolerable burden upon this plaintiff. In every products liability case there must exist some juncture beyond which a plaintiff need not and perhaps cannot be more specific. It is sufficient if, by expert opinion and/or circumstantial evidence, it appears more probable than not that the product in question contained a defect when it left the manufacturer’s control, and that the defect was causally connected to the injury. In some cases the requisite quantum of proof may correspond to that usually required to invoke the doctrine of res ipsa loquitur, although purists would correctly note that res ipsa loquitur is incompatible with a strict liability theory. (Prosser, “The Fall of the Citadel,” 50 Minn. L. Rev. 791, 842; Rheingold, “Proof of Defect in Product Liability Cases,” 38 Tenn. L. Rev. 325; C. McCormick, Law of Evidence 643 (1954 ed.).) Yet, the doctrine of res ipsa loquitur is no more than a recognition that the proof of certain facts may logically lead one to the inference or presumption of the negligence of one or more parties. (I.L.P. Negligence § 202.) The underlying principle that circumstantial evidence may create inferences of fact which are not otherwise subject to direct proof is entirely consonant with a strict liability theory. This is illustrated by the recent case of Bollmeier v. Ford Motor Co., supra, wherein the reviewing court enunciated the following rule:

“[DJirect or circumstantial evidence which tends to prove that the product failed to perform in the manner reasonably to be expected in the light of its nature and intended function, such as proof of a malfunction which tends to exclude other extrinsic causes, is sufficient to make a prima facie case on this issue.” 130 Ill.App.2d 844, 851.

In Bollmeier the plaintiff had been involved in a one-car accident, allegedly as a result of a failure in the steering system. He introduced testimony that there existed in his car a malfunction which was manifested by a vibration in the steering; that such vibration could cause a metal failure or loosening of bolts in the steering mechanism; and that the car failed to respond when plaintiff attempted to turn a corner. The court held that this evidence was sufficient to present a jury question on the issue of the defectiveness of the automobile.

In the case at bar plaintiff has relied on expert testimony and physical exhibits. Although Mr. Refiner’s experience in the field of tire analysis was limited, and his presentation was admittedly conflicting in some parts and weak in others, when that testimony is viewed in its aspects most favorably to plaintiff, we believe that it suffices to establish a prima facie case.

Our conclusion that plaintiffs evidence established a prima facie case does not dispose of defendants’ contention that the trial court should have found in their favor at the close of all the evidence. This contention requires an analysis of all the evidence in the context of the standard enunciated by Pedrick v. Peoria & Eastern R.R., supra.

We have already alluded to certain weaknesses and contradictions in the testimony of plaintiff’s expert witness. These assume greater proportion when contrasted with the expert testimony and physical exhibits introduced by defendants. Defendants’ first expert witness, Mr. Dunlop, was president of an independent laboratory specializing in the testing . and analysis of rubber products. His expertise in the diagnosis and analysis of tire failures was unimpeachable. His testimony totally undermined the factual basis upon which plaintiff’s expert had concluded that the tire rupture was of internal origin. He located cuts and gouges on the tread of the Michelin tire and traced them to the base of the 18” rupture. Photomicrographs of the ends of the severed radial ply wires were introduced into evidence to illustrate the presence of sheared wires in addition to wires broken by tension. He referred to cross sections of the rupture to show the absence of voids, polishing or smoothing. The presence of other “ply separations” and blisters were explained as the natural consequence of “running flat” immediately after a blowout. Mr. Dunlop expressed, and painstakingly supported, the opinion that the blowout in the Michelin tire was caused by penetration by an external object. His testimony was clear, unequivocal, unimpeached, and in harmony with the physical exhibits introduced by plaintiff and defendants. The testimony of defendants’ second expert witness, also an unquestioned authority in the field of tire failures, corroborated Mr. Dun-lop’s and was equally compelling and impeaching of plaintiff’s expert, although its weight was somewhat diminished by his long association with the Michelin Tire Company.

Plaintiff presented the testimony of one expert witness; defendant presented the testimony of two. Although the number of witnesses for each side is a factor to be considered, it is not determinative. (Miller v. Green, 345 Ill.App. 255, 103 N.E.2d 188.) The conflicting testimony of expert witnesses normally raises an issue uniquely determinable by the trier of fact, who is in a better position to view the pertinent exhibits and assess the credibility of the witnesses. However, the weight of an expert’s opinion must be measured by the reasons given for the conclusion and the factual details marshalled in support thereof. (People v. Burress, 1 Ill.App.3d 17, 272 N.E.2d 390.) The opinion of an expert is of value only when it is based upon and in harmony with facts which are capable of verification by the court (Yowell v. Hunter, 403 Ill. 202, 214, 85 N.E.2d 674), and, where a factual basis is lacking, the opinion is entitled to little weight. (Manion v. Brant Oil Co., 85 Ill.App.2d 129, 136, 229 N.E.2d 171.) In the case at bar the opinion of plaintiff’s expert was directly contradicted by the defendants’ experts, but, of greater importance, it was severely impeached by the physical exhibits introduced into evidence. When exhibits are a significant part of the record, the reviewing court is in as good a position to decide the case as is the trial court. (Yowell v. Hunter, supra.) We have closely examined the exhibits in this case in conjunction with the related illustrative testimony of all the experts. We conclude that the tire, the cross sections of the rupture, the photographs, and particularly the photomicrographs of the radial ply wires all support defendants’ theory of the case.

Defendants, too, may develop their theories through circumstantial evidence; it would impose an equally unwarranted burden on defendants in this case to require production of the instrument which punctured the exterior of the Michelin tire. It is sufficient for defendants if, by expert opinion and/or circumstantial evidence, it appears more probable than not that the product in question did not contain a defect when it left the manufacturer’s control, or that the injury was caused by some other independent force. We believe that defendants’ evidence met and surpassed this standard, and satisfied the criteria expressed in Pedrick v. Peoria & Eastern R.R. Co., supra. Judgment in favor of defendants should have been entered at the close of all the evidence. We reverse.

Judgment reversed.

LEIGHTON and HAYES, JJ„ concur.

        Davis v. Lebschier, 63 S 8799, Allen v. Pillsbury Company, 64 L 1005 and Gore v. Lebschier, 63 S 22352.

       Plaintiff failed to introduce the complaints into evidence, but we have chosen to take judicial notice of their contents. See State Farm Mutual Automobile Ins. Co. v. Grebner, 132 Ill.App.2d 234, 269 N.E.2d 337.

       This confusion was compounded by defendants’ expert testimony that the tire in question was a single ply tire.


author: Mr. JUSTICE DIERINGER Mr. PRESIDING JUSTICE BURMAN

text:
    Clyde Carrell, Plaintiff-Appellee, v. Dr. Anthony Francona et al., Defendants-Appellants.
    (No. 55945;
    First District (4th Division)
    May 16, 1973.

      BURMAN, P. J., dissenting.
    Tom L. Yates, of Chicago, (Carl E. Abrahamson, of counsel,) for appellant.
    Cooney and Stenn, of Chicago, (Joseph V. Roddy, of counsel,) for appellee.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

The defendant, Dr. Anthony Francona, appeals from a judgment entered in the Circuit Court of Cook County following a jury trial awarding the plaintiff damages in the sum of $35,000.

The issues presented on appeal are: (1) whether the trial court erred in denying the defendant’s motion for a directed verdict; (2) whether the verdict is contrary to the manifest weight of the evidence; (3) whether the trial court erred in refusing to submit the issue of assumption of risk to the jury; (4) whether the trial court erred in overruling the defendant’s objection to a hypothetical question propounded to a certain witness; (5) whether the defendant was afforded a fair trial, free of prejudicial error; (6) whether the damages awarded to the plaintiff are excessive; and (7) whether the trial court erred by submitting a certain instruction to the jury tendered by the plaintiff and refusing to submit a certain instruction tendered by the defendant.

In September, 1953, Dr. Anthony Francona purchased a chicken farm and small residence, together with adjoining properties, in Lake Villa, Illinois. Soon thereafter, Dr. Francona hired the plaintiff, Clyde Carrell, a journeyman electrician, for the purpose of managing a chicken-raising business which Dr. Francona intended to conduct. As part of a written employment contract, the plaintiff was to live in the residence on the premises of the chicken farm and oversee the chicken-raising business.

The plaintiff arrived at the farm on October 26, 1953, and began preparations for raising the chickens, which arrived on November 16, 1953. The house where the chickens were to be raised was a two-story structure divided into four separate rooms. Each room contained six to eight brooders which were used for warming the chickens. Each brooder had a double electrical socket over it, of which one socket was used for a light over the brooder and one socket for an extension cord attached to a light underneath the brooder. The double sockets were connected to a main fuse box which held 15 and 20 amp fuses. There were also some 30 amp fuses in use for an automatic feeder which carried seed to each of the four rooms in the chicken house. The fuse box was located on the wall inside the door of the building. The fuse box had a handle on it which, when pulled down, cut off all electrical power to the circuits within the chicken house, as well as to the plaintiff’s residence adjacent to the building.

The plaintiff began to experience difficulty with the electrical system early in December, 1953. The difficulty was caused by an overload on the main system which was burning out the fuses. The plaintiff informed Dr. Francona of the difficulty, as well as the fact that the system was inadequate and could not be repaired. He recommended replacement of the system, which Dr. Francona said could only be considered after the first chicken litter was completed. The plaintiff also complained to Dr. Francona of difficulties with the electrical system caused by Dr. Francona’s use of the double electrical sockets over the brooders and the replacement of the light bulbs in the brooders with higher wattage bulbs, both of which only caused more of an overload on the already overloaded system. Thereafter, the plaintiff substituted the light bulbs with lower wattage bulbs; the system, however, remained overloaded to the point where in the remaining weeks in December, the plaintiff had to replace the fuses five times.

At approximately 1:00 A.M. on January 4, 1954, the plaintiff was awakened by his wife, who told him the house lights were dimming. When the plaintiff looked out the window toward the chicken house, he saw the west end of the second floor in flames, He quickly dressed and ran to the chicken house to turn off the electrical power in the chicken house, thereby cutting the power and protecting his own residence. After entering the chicken house, the plaintiff reached the main switch on the fuse box and turned if off; however, a rush of air shut the door behind him. In attempting to escape from the burning building, the plaintiff was burned quite seriously on his head, hands, face and body. After thirty-one days in the hospital, the plaintiff was released, but due to the severity of his injuries was no longer able to work at his former trade as a journeyman electrician.

The plaintiff thereafter filed a complaint in the Circuit Court of Cook County alleging the fire which caused his injuries was the result of the defendant’s negligence in that the electrical system was insufficient, defective and unsafe. At a subsequent trial, certain testimony relative to the allegedly defective electrical system was presented. Dr. Francona, called as an adverse witness, denied having any notice of defects in the electrical system prior to purchasing the chicken farm. He also could not recall the plaintiff ever complaining to him about the inadequacies of the electrical system. The defendant, however, testified he had occasion to speak with the plaintiff concerning the fuses blowing, whereupon defendant recommended the plaintiff replace the large watt bulbs in the chicken house with bulbs of lower wattage. This, to the defendant’s knowledge, resulted in the plaintiff encountering no further fuse difficulty.

Frank Kasky, a detective assigned to the Chicago Police Department Bomb and Arson Unit, was called as a witness by the plaintiff. After being qualified as an expert as to the causes of fires, Mr. Kasky was asked a hypothetical question as to the cause of a fire under circumstances similar to those which were present when the plaintiff was injured. Mr. Kasky responded that, in his opinion, such a fire could only originate from an overload on an inadequate electrical system.

Lester Hamlin testified he was the electrical contractor who installed the main electrical system in the chicken house. Mr. Hamlin stated the main switch for the system was located in a vestibule outside tire actual brooder house. On cross-examination, Mr. Hamlin testified he had no knowledge of the chicken house or its electrical system for the years 1952, 1953 and 1954. He did state, however, that if the cause of the fire was electrical, cutting the electrical power, as the plaintiff was attempting to do when he was burned, would be helpful in stopping further damage.

Kenneth Sheldon, a former resident of the premises, testified he remembered the main switch for the electrical system to be outside the chicken house. On cross-examination, Mr. Sheldon admitted he had not seen the house since 1949.

Paul Sheldon testified he had sold the premises to the defendant. He, likewise, testified the main switch for the electrical system was outside the entrance to the chicken house. On cross-examination, Mr. Sheldon did state that although he raised chickens while living on the premises, he hired a manager to do the work.

John Ziah, an attorney and certified court reporter, testified he had occasion soon after the fire in January, 1954, to record an interview he had with the plaintiff while he was confined to St. Anne’s Hospital, Chicago. Mr. Ziah testified the plaintiff, on the occasion of the interview, stated he did not know what could have caused the fire.

The foregoing evidence was submitted to the jury, which returned a verdict in favor of the plaintiff and awarded him damages in the amount of $35,000. The defendant herein appeals from the judgment entered by the trial court on that verdict.

The first issue presented for review is whether the trial court erred in denying the defendant’s motion for a directed verdict.

The defendant contends the trial court erred in denying his motion for a directed verdict in that the evidence presented by the plaintiff failed to prove the allegations contained in his complaint because the plaintiff never proved the negligence charged to the defendant was the proximate cause of his injury. In view of this contention, the defendant asserts the verdict of the jury in favor of the plaintiff and against the defendant totally lacks support and, therefore, the trial court erred in denying the motion for a directed verdict.

The law in Illinois relative to whether a trial court has properly refused to direct a verdict is well settled. In Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510, the court stated:

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

After a thorough review of the record in the instant case, applying the standard set forth in Pedrick as to directed verdicts, we find the trial court’s denial of the defendant’s motion for a directed verdict to be amply supported by the great weight of the evidence preserved in the record. For this reason, we find the defendant’s contention that the trial court’s denial of his motion for a directed verdict was error is totally lacking in merit.

The second issue presented for review is whether the verdict of the jury is contrary to the manifest weight of the evidence. The defendant contends the verdict of the jury in favor of the plaintiff is patently contrary to the manifest weight of the evidence. The basis for the defendant’s contention is that the jury could only have returned a verdict in favor of the plaintiff by arbitrarily rejecting the testimony of the following defense witnesses: Lester Hamlin, the contractor who installed the electrical system in the chicken house; Kenneth Sheldon, a former resident of the premises; Paul Sheldon, the former owner and operator of the premises; and John Ziah, who took the plaintiff’s statement soon after the accident. In support of this contention, the defendant relies on the definition of the term “manifest weight” as stated by the court in Roth v. Lissner Iron and Metal Co., (1967), 88 Ill.App.2d 352:

“A verdict is against the manifest weight’ when an opposite effect is ‘clearly apparent,’ Tabor v. Tazewell Serv. Co., 18 Ill.App.2d 593, 153 N.E.2d 98 (3d Dist., 1958) or the' finding of the jury appears to be ‘unreasonable, arbitrary, and not based on the evidence,’ Stobbs v. Cumbry, 9 Ill.App.2d 138, 132 N.E.2d 448 (3d Dist., 1956).”

A review of the testimony of the aforementioned witnesses as it is preserved in the record reflects that the jury did not arbitrarily reject their testimony and thereby reach a verdict contrary to the manifest weight of the evidence. The jurors witnessed not only the testimony of the four witnesses on direct examination but also their testimony on cross-examination. Furthermore, the jury also viewed the testimony of plaintiff, and the expert witness called by the plaintiff, Frank Kasky. Although the defendant does not mention the testimony of either the plaintiff or Mr. Kasky in discussing his contention, such testimony was heard by the jury and, therefore, also merited their consideration. In view of these facts, we must apply the standard set forth in Allen v. Colaw (1969), 27 Ill.App.2d 304, wherein the court stated that for a verdict of a jury to be overturned, the opposite conclusion from what the jury found must be both clear and convincing to the reviewing court. Since the record in the instant case neither clearly nor convincingly reflects the opposite conclusion from that which the jury found, we must reject the defendant’s contention that the finding of the jury is contrary to the manifest weight of the evidence.

The third issue presented for review is whether the trial court erred in refusing to submit the issue of assumption of risk to the jury. The defendant contends the trial court improperly refused to submit the issue of assumption of risk, in the form of defendant’s instruction No. 12, to the jury. This instruction was based on the defendant’s assertion that he had pleaded assumption of risk as an affirmative defense and, as such, the issue should have been submitted to the jury for consideration. Therefore, the refusal by the trial court to submit the issue to the jury for their consideration effectively denied the defendant a defense to which he was entitled and is error.

A thorough review ©f the record in the instant case reflects the pleading wherein the affirmative defense of assumption of risk is located was not in existence until the day the case went to the jury. This, in itself, does not preclude the trial court from submitting the issue to the jury. However, the record is devoid of any motion by defense counsel requesting the trial court admit such pleading. Furthermore, there is no indication on the face of the pleading or elsewhere in the record that the trial court allowed such pleading as an amendment to the defendant’s answer. We, therefore, conclude the trial court properly denied defendant’s instruction No. 12 based on the issue of assumption of risk, since the issue of assumption of risk was never before the court.

The fourth issue presented for review is whether the trial court erred in overruling the defendant’s objection to a hypothetical question propounded to a certain witness. The basis for the defendant’s contention lies in his assertions that there is no evidence in the record to support that element of the question wherein it is stated approximately twenty or more double sockets were being used almost continually; that there is no evidence of an overload in the electrical system prior to October, 1953; and that the witness, Frank Kasky, was not qualified to answer the question.

There is ample evidence in the record in the form of plaintiff’s uncontradicted testimony to the effect that there were between twenty-four and thirty-two double sockets in the chicken house. There is further testimony by the plaintiff to the effect that the lights above and beneath the brooders, which were connected to the double sockets, were in use twenty hours each day. The record also reflects the defendant’s assertion that there is no evidence of an overload on the electrical system prior to October, 1953, is likewise erroneous. In Oberkircher v. Chicago Transit Authority (1963), 41 Ill.App.2d 68, the court stated:

“[T]he rule is that where a statement made by a party contradicts his testimony as a witness in the trial it may be used not only for the purpose of impeachment but as evidence against him.”

In the instant case, Dr. Francona, testifying as an adverse witness pursuant to section 60 of the Illinois Civil Practice Act (Ill. Rev. Stat., ch. 110, § 60), was questioned concerning his knowledge of an overload on the system prior to October, 1953. During his testimony, Dr. Francona denied any notice of an overload, whereupon a portion of a deposition taken of Dr. Francona subsequent to the fire was introduced into the record. In that deposition, Dr. Francona acknowledged notice of an overload on the system prior to October, 1953, was given to him by a prior occupant of the farm. Applying the rule set forth in Oberkircher v. Chicago Transit Authority, supra, to this statement made by Dr. Fran-cona in direct contradiction of his testimony, we necessarily hold that such a statement may be used as evidence against him. Therefore, contrary to the defendant’s assertion, there is evidence in the record of an overload on the electrical system prior to October, 1953.

The defendant finally asserts the witness, Frank Kasky, was not qualified to answer the hypothetical question propounded to him. Once again the record discloses the defendant is in error. When Mr. Kasky, a detective assigned to the Chicago Police Department Bomb and Arson squad for eleven years, was called to testify, plaintiff’s counsel more than adequately showed Mr. Kasky to be qualified as an expert in determining the causes of fires. Since the determination of whether an alleged expert is qualified is largely within the discretion of the trial judge (Garrett v. S. N. Nielsen Co. (1964), 49 Ill.App.2d 422), and since the defendant has failed to show an abuse of discretion by the' instant trial judge in ruling Mr. Kasky an expert witness, we will not substitute our judgment for that of the trial court.

In light of the foregoing evidence, we therefore necessarily reject the defendant’s contention that the trial' court erred in overruling his objection to the hypothetical question propounded to the expert witness.

The fifth issue presented for review is whether tire defendant was afforded a fair trial free of prejudicial error. The defendant contends he was not afforded a fair trial in that plaintiff’s counsel repeatedly and knowingly injected prejudicial remarks to the defendant’s detriment. The defendant further contends he was denied a fair trial in that the trial court not only made improper rulings on the evidence but also made improper remarks in the presence of the jury. In support of these dual contentions, the defendant cites numerous instances throughout the record which he considers to be exemplary of such improper conduct and prejudicial remarks by both plaintiff’s counsel and the trial court. The defendant asserts such conduct and remarks are preserved for review, even though he did not object to such remarks based on the decision in Paulsen v. Gateway Transportation Co. (1969), 114 Ill.App.2d 241, wherein the court stated:

“In a case where prejudicial arguments or improper conduct of counsel affect the case to the extent that the litigants cannot receive a fair trial and the judicial process suffers deterioration, this court may consider such an assignment of error even though no objection was made and no ruling made or preserved thereupon by court or counsel.”

Once again a thorough review of the record indicates the defendant’s contention lacks merit and deserves scant consideration. Moreover, the defendant’s reliance on the decision in Paulsen v. Gateway Transportation Co., supra, is inappropriate when judging the tenor of the alleged prejudicial comments and improper conduct which the defendant urges this court consider. These alleged comments and conduct do not, in the opinion of this court, affect the defendant’s case to the extent of denying him a fair trial, nor does allowing them to stand indicate the judicial process has suffered the slightest deterioration as the defendant would have us believe. We, therefore, reject the defendant’s contention that he was not afforded a fair trial.

The sixth issue presented for review is whether the damages awarded to the plaintiff are excessive. The defendant contends the jury award of damages in the amount of $35,000 is excessive and highly unreasonable. In support of this contention that defendant relies on a series of Illinois cases wherein damages awarded by the trial court were held to be excessive. (Hyatt v. Cox (1965), 57 Ill.App.2d 293; Clarke v. Rockford (1967), 79 Ill.App.2d 336; DeMilio v. Schnoor (1967), 84 Ill.App.2d 250.) The defendant further supports his contention by his assertion that the plaintiff’s hospital and nursing bills amounted to only $1,402, and that the plaintiff’s attending physician did not testify at trial.

The defendant’s obvious dissatisfaction with the damage amount awarded by the jury is based on a very narrow interpretation of the damage evidence. The defendant apparently reasons that damages should only be awarded to the plaintiff in the amount of his hospital and nursing biUs. Such an interpretation by the defendant is highly erroneous. A review of the uncontradicted evidence preserved in the record reflects the plaintiff not only incurred medical and nursing bills amounting to $1,402 but also lost nine months of wages which amounted to approximately $7,000. Furthermore, the plaintiff could no longer continue his trade as a journeyman electrician due to the severity of his injuries and is now forced to work at a substantial reduction in earnings. In view of these facts, we must reject the defendant’s contention that the damages awarded the plaintiff are excessive.

The final issue presented for review is whether the trial court erred in submitting a certain instruction to the jury which was tendered by the plaintiff and refusing to submit a certain instruction tendered by the defendant. The defendant first contends the trial court erred in submitting plaintiff’s instruction No. 6 to the jury. This was the instruction in which the allegations of negligence against the defendant from the plaintiffs complaint were set forth, and is called the issues instruction. The basis for the defendant’s contention lies in his assertion that there is no evidence in the record to support the plaintiffs allegations as listed in the instruction.

Upon reviewing the evidence preserved in the record, it is apparent to this court the allegations contained in plaintiff’s instruction No. 6 were supported by the evidence and all reasonable inferences that flowed from that evidence. The allegations in the complaint and as stated in the instruction are that the electrical system was defective; that the defendant was aware of the defective condition of the system; and that the defendant negligently failed to remove the defect. The uncontradicted testimony of both the plaintiff and the defendant clearly establish these allegations to be fact. It was therefore not error for the trial court to submit plaintiffs instruction No. 6 to the jury for its consideration.

The defendant secondly contends the trial court erred in refusing to submit defendant’s instruction No. 12 to the jury. We do not find it necessary to discuss this contention, however, since defendant’s instruction No. 12 was discussed previously in this opinion.

For the reasons contained herein, the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

ADÉSKO, J., concurs.

Mr. PRESIDING JUSTICE BURMAN

dissenting:

The plaintiff alleged that the defendant, Dr. Anthony Francona, was negligent in that he knew, or in the exercise of ordinary care should have known, that the electrical system in the chicken house was insufficient and defective and in that he permitted a fire hazard by allowing it to remain in this condition. I believe that these allegations were not proved by the evidence which appears in the record and that the court should have directed a verdict for the defendants.

Dr. Francona and the plaintiff first met in 1936 at a Civilian Conservation Corps camp in which they were both employed. Since then they had been friends, and Dr. Francona had been the plaintiffs physician. In the fall of 1953 the plaintiff was employed as a journeyman electrician. He learned of Dr. Francona’s plans to invest in a chicken raising business through their friendship and approached the doctor about becoming manager of the chicken farm, stating that he had had “some experience with farming.” This led to the employment agreement which was executed on October 7, 1953.

It was undisputed that the purchase of the Lake Villa property was Dr. Francona’s first venture into the chicken raising business. He received no notice of any defect in the electrical system prior to or at the time of his purchase of the farm. He never resided on the premises. In October, 1953, the plaintiff and his family moved into the residence pursuant to the terms of the employment agreement.

The plaintiff testified that he inspected the electrical system in the chicken house shortly after he arrived “because he was curious” about it. He reported no defects to Dr. Francona nor made any complaint at that time.

The employment agreement provided, among other things, that the plaintiff had tire responsibility of repairing and maintaining the premises and all equipment on it. He did some electrical work in the chicken house, which included putting in an additional line and replacing fuses and light bulbs periodically. He used his own judgment as to tire loads which the system would bear and as to the types of fuses and bulbs which should be employed. He also testified that on one occasion he wired around a fuse after it had btuned out. Once or twice during this period he mentioned to Dr. Francona that he thought the electrical system was outmoded and should be replaced, but he never indicated that the system created a fire hazard or that it could not be utilized safely until the first litter of chicks was raised and sold.

Under the employment agreement the plaintiff was to make all minor repairs on the premises at his own expense. He was obligated to pruchase one half of the equipment needed for operation of the farm. His compensation was based upon a percentage of the profits derived from the sale of the chicks. He was obligated to cooperate with the representatives of Corn-Belt Hatcheries and to report to Dr. Francona, but was otherwise in complete control of the operation and maintenance of the farm.

As the foregoing demonstrates, there is a complete absence of any direct or positive evidence that Dr. Francona was negligent. The plaintiff was in complete charge and control of the premises and was better informed of its condition than Dr. Francona. The plaintiff was a journeyman electrician. He had done work on the chicken house and was familiar with the wiring in it. At no time did Dr. Francona receive any notice that the electrical system was a fire hazard. He did not have sufficient personal knowledge to evaluate the system, and he relied upon the expertise of the plaintiff, whose duty it was to maintain the premises,

It is also well settled in Illinois that an employee, particularly one who is ip complete charge and is a specialist, assumes the risk of known dangers, as well as those which are so obvious that knowledge of their existence is fairly to be presumed. (Chicago & E.I.R.R. v. Heerey, 203 Ill. 492, 495-97.) It is also well settled that the question of contributory negligence is distinct from that of assumption of risk. (Kelley v. FletcherMerna Cooperative Grain Co., 29 Ill.App.2d 419, 425-26.) Although the defendant affirmatively pleaded assumption of risk as a defense, the court refused to submit the issue to the jury. In so doing, the court deprived Dr. Francona of a defense to which he was entitled.

The plaintiff’s testimony established that there were essentially two structures on the farm: the chicken house and the residence. The residence was located “some distance” from the chicken house. Electrical service to both structures was provided by a line which ran to a pole in the yard and then to the residence. It is unclear whether the line to the chicken house ran from the pole or from the residence.

Sometime after eleven o’clock on the evening of January 3, 1954, the plaintiff was awakened by his wife, who told him that the lights in the residence were going dim. The plaintiff looked out of his bedroom window and saw that a portion of the upper floor of the chicken house was in flames. He got dressed, rushed out of the chicken house and entered it via the entrance vestibule on the south end. 'While he was inside, a draft blew the door shut, and the plaintiff was forced to exit through the building suffering burns. The plaintiff testified that his purpose in entering the chicken house was to shut off the main electrical switch. It is unclear why he felt compelled to do this. At trial, his counsel suggested that he did it “to save his family”; however, there is no evidence that the residence or its occupants were in any danger.

It is apparent that the plaintiff left a place of safety to enter the burning building. When he did so he assumed the risks of this undertaking. The defendant’s tendered instruction was based upon I.P.I. 13.02. It was supported by ample evidence in the record, and I believe that the court erred in refusing to give it.

I would reverse the judgment or, in the alternative, reverse and remand the cause for a new trial.