author: PRESIDING JUSTICE EARNS JUSTICE WELCH,

text:
    MICHAEL W. FALKENBURY, Plaintiff-Appellee, v. ELDER CADILLAC, INC., et al., Defendants-Appellants.
    Fifth District
    No. 81—334
    Opinion filed August 13, 1982.

      WELCH, J., dissenting.
    Otis M. Smith, General Counsel, General Motors Corp., of Detroit, Michigan and Pope and Driemeyer, of Belleville (William A. Schmitt, of counsel), for appellants.
    Freeark, Harvey & Mendillo, of Belleville (Ray Freeark and James Mentidlo, of counsel), for appellee.
   PRESIDING JUSTICE EARNS

delivered the opinion of the court:

Defendants, Elder Cadillac and General Motors Corporation, appeal from the judgment of the circuit court of St. Clair County, entered on a jury verdict, awarding plaintiff, Michael W. Falkenbury, $125,000 in this products liability action. Defendants appeal, alleging, inter alia, that, as a matter of law, the product in question was not unreasonably dangerous.

On June 16, 1977, plaintiff, a dental technologist, purchased a new Cadillac Coupe de Ville from Elder Cadillac, located in Belleville, Illinois, which had optional equipment including spoked wire wheel covers. A wire wheel cover consists of a disc proper with an outer row of long spokes and an inner row of shorter spokes. The spokes, positioned in the front of the wheel cover, crisscross and fit into slots along the circumference of the disc proper. In the center of the disc there is a hole, several inches in diameter, over which a center crest piece bearing the Cadillac emblem is placed. On the back of the wheel cover there is a flat, round retainer disc plate which has a hole corresponding to the hole on the disc proper. There are five bolts on the wheel cover which secure the crest piece and the retainer disc.

In the three weeks following the purchase of the automobile, plaintiff noticed several minor problems, including a noise in the left rear wheel which he described as a “clicking” sound. On July 6, 1977, plaintiff brought the automobile to Elder to have warranty service performed and detailed a list of problems, including the noise in the left rear wheel.

Carl Newson, service manager at Elder, testifying as a section 60 witness, stated that, in response to the complaint concerning the left rear wheel, the exhaust system was aligned and a “general tightening” was performed. Newson further testified that there was no procedure for tightening the spokes on the wire wheel cover. On direct examination, Newson stated that plaintiff never complained to him concerning the wire wheel covers on his automobile.

Plaintiff testified that, when he picked up his car after having service performed, the mechanic indicated that the problems had been solved; however, the noise emanating from the left rear wheel persisted. Plaintiff further testified that he took the car in for repairs again and was informed that the service department would order a repair kit for the spoked wire wheel covers. Plaintiff telephoned Elder on several occasions, but was told the repair kit was not in stock. Newson did not recall any conversations with plaintiff concerning a wire wheel cover repair kit or the ordering of such.

On August 18, 1977, plaintiff, because of the persistent noise in the left rear wheel, endeavored to fix the wheel himself. After first removing the wheel cover from the car, plaintiff loosened the five bolts and removed the centerpiece which bears the Cadillac emblem. This created a hole that goes all the way through the wheel. Plaintiff looked inside the wheel, saw two spokes out of their holes, reached in and pushed them into their respective slots along the circumference of the disc proper. Plaintiff testified that at this point “my hand slipped or something slipped here and my hand went down into the side of that disc.” This incident caused plaintiff to cut his hand, which is the complained of injury in the instant case. The cut was approximately V-k inches long and XU inch deep, running from the base of the thumb toward the back of the hand.

Plaintiff filed this strict liability action for personal injuries suffered to his hand and wrist. In his second amended complaint, plaintiff alleged that the wire wheel cover was unreasonably dangerous in one or more of the following ways:

“(a) It contained in and around the access area sharp and protruding edges;
(b) Protruding edges around the access area were not dulled, blunted, guarded or otherwise protected;
(c) No warning accompanied said product to warn of hazard involved;
(d) No instructions were provided with respect to the care, maintenance or use of said product.”

Plaintiff further alleged that as a “direct and proximate result of the foregoing unreasonably dangerous and/or defective conditions,” he suffered personal injuries to his right hand, and the tendons and nerves therein, that he was unable to engage in his usual professional duties to the extent he could prior to the occurrence, and that this caused him economic damage.

Dr. Dale Rosenberg, a plastic surgeon and the treating physician, testified as to the nature of plaintiff’s injury. Rosenberg testified that the cut caused tendon and nerve damage and to cause such injuries the cut would have to be down to the bone on the wrist. Rosenberg further testified that he was informed plaintiff had suffered the injury from being cut on a hubcap and was of the opinion that such a laceration could have been caused by a sharp metal edge. Plaintiff’s wrist was placed in a plaster cast for approximately four weeks. Plaintiff testified that after the cast was removed he experienced numbness in his thumb and a loss of dexterity that persists to the present. Plaintiff further testified that a scar developed over the area of the cut and there was a “swelling or knot” which is sensitive to the touch.

Three expert witnesses testified as to the nature and characteristics of the wire wheel cover in question.

Derwyn Severy, president of Severy, Inc., a firm involved in the evaluation of products liability cases and research in the automotive industry, testified by evidence deposition. Severy testified that the wire wheel cover is a combination of defective design and defective manufacturing. Upon disassembling the wheel, Severy noticed that the inner spokes did not receive an interlock as intended by the designer and it was apparent that the manufacturing process did not adhere to design intent. Severy observed a further defect in the stamping, particularly of the discs, which caused a sharp surface to prevail which could cause serious laceration. Severy described the disc as having a “razor-like quality.” On cross-examination, Severy stated that the wheel cover had to be disassembled, with five bolts removed, before the “lacerative edge” is exposed. Severy concluded that, in his opinion, the wheel with a disc having this “lacerative edge” is an unreasonably dangerous condition and that it is reasonably foreseeable that if the spokes on a wire wheel became loose the owner might attempt to adjust or fix them. Severy further concluded that the method used by plaintiff, reaching through the center of the wheel, while not being the “learned approach” was the most “direct approach” and, absent any instructions or published procedure, was the reasonably foreseeable method to be utilized.

H. Boulter Kelsey, an independent consultant and part-time engineering professor at Washington University in St. Louis, Missouri, testified at trial. Kelsey examined the wire wheel on two occasions and disassembled it the latter time. Kelsey testified that upon inspection he noticed that some of the outer spokes on the wheel were “loose and rattling” because they did not fit tightly into the outer diameter of the rim. Kelsey detected an “extremely sharp” edge and a raised burr on the edge of the hole caused by residual metal from the parent metal remaining as a result of the punching operation. Kelsey described the punching operation used to create the hole as follows:

“Well, the material is placed in a machine which has a die and above that die is a punch. The die contains a hole and the punch domes down through the hole and to produce that hole, the punch is lowered through the material and into the hole which provides a shearing action around the punch at the edge of the hole in the die.”

Kelsey further testified that, in his opinion, the existence of this very sharp edge constitutes an unreasonably dangerous condition, it is reasonably foreseeable that an owner of an automobile who heard a rattling in the wire wheels would attempt to fix it and that the likelihood of the owner doing so would be enhanced by the failure of the service department to remedy the problem. Kelsey delineated four methods that could be used to avoid the sharp edge made by the stamping procedure utilized.

Robert J. Smith, an automotive engineer who has been employed by General Motors for 31 years, testified at trial. Smith examined the wire wheel cover in question and stated that it is not in the same condition as it was when it was installed, specifically detecting that two of the spokes were bent so that they were in contact with other spokes. Smith testified that, in his opinion, “there is no surface on the cover [wire wheel cover] that is unreasonably dangerous from the standpoint of normal customer usage of the part.” Smith further testified that upon removal of the retainer disc during disassembly of the wire wheel cover, a typical sharp edge was evident which results when a steel part is stamped by a punch press and that any metal edge created in this manner will leave a slight burr. Smith noted that the only time the sharp edge would be exposed is if the five bolts were removed and the cover taken off. Smith stated that the metal edge in question is sufficiently sharp to cut human flesh, tendons and nerves.

At the close of all the evidence, defendants made a motion for directed verdict which was denied. On January 9, 1981, the jury returned a verdict in favor of plaintiff and against defendants in the sum of $125,000. On February 6, 1981, defendants filed a post-trial motion for judgment in accordance with the motion for directed verdict, judgment notwithstanding the verdict or in the alternative, a motion for new trial. The motions were denied, judgment was entered on the verdict, and defendants took this appeal.

Defendants assert that the trial court erred in denying the motions for directed verdict and for judgment notwithstanding the verdict in that, as a matter of law, the product was not unreasonably dangerous when used in a reasonably foreseeable manner and for the purpose for which it was intended. Plaintiff argues that whether a product is unreasonably dangerous and used in a reasonably foreseeable manner are questions of fact for the jury and that, under the evidence introduced in the instant case, defendants are not entitled to a judgment under the Pedrick standard. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.) Thus, the issue before us on appeal is whether the evidence, when viewed in its aspect most favorable to the plaintiff, so overwhelmingly favors the defendants that no contrary verdict based on this evidence could stand under the theory advanced by plaintiff.

We note at the outset that plaintiff has proceeded under the theory of strict liability in tort and in order to recover under that theory, plaintiff must prove that the injury “resulted from a condition of the product, that the condition was an unreasonably dangerous one and that the condition existed at the time it left the manufacturer’s control.” (Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 623, 210 N.E.2d 182, 188.) The Illinois Supreme Court in Suvada cited, with approval, section -402A of the Restatement (Second) of Torts involving the strict liability of the seller of products for physical harm caused to the user or consumer.

The rule enunciated in section 402A “applies only where the defective condition of the product makes it unreasonably dangerous to the user or consumer” and the product “must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” (Restatement (Second) of Torts, section 402A, comment i, at 352 (1965).) There is no concise definition as to what constitutes an unreasonably dangerous condition. (Burke v. Illinois Power Co. (1978), 57 Ill. App. 3d 498, 373 N.E.2d 1354.) The court in Burke went on to note that “[s]ince the classification of a product as unreasonably dangerous is dependent on a variety of circumstances, it naturally falls upon a jury in most instances to make the determination as a matter of fact.” (57 Ill. App. 3d 498, 511, 373 N.E.2d 1354, 1367.) We further recognize that in order for a strict liability case to go to the jury, the evidence must give rise to a “reasonable inference” that the condition was an unreasonably dangerous one. Rockett v. Chevrolet Motor Division, General Motors Corp. (1975), 31 Ill. App. 3d 217, 334 N.E.2d 764.

In the instant case it is undisputed that the disc on which plaintiff incurred his injury was sharp enough to cause the injury in question. Of course, there are many sharp edges on the various parts of an automobile that could not reasonably be classified as unreasonably dangerous considering their location and the unlikelihood that someone not a mechanic would come in contact with them. Whether a product can be classified as unreasonably dangerous depends in large part on its intended or foreseeable use. (Winnett v. Winnett (1974), 57 Ill. 2d 7, 310 N.E.2d 1.) Whether plaintiff cut his hand on the wire wheel cover in question or the extent of his injuries are not at issue before this court, these facts are uncontroverted; rather, in our view, the real inquiry involves whether plaintiff was acting in a reasonably foreseeable manner in attempting to repair the wheel cover himself and whether the method he utilized was reasonably foreseeable.

Strict liability in tort will only be imposed when a product is unreasonably dangerous when used in a reasonably foreseeable manner. (Dunham v. Vaughan & Bushnell Manufacturing Co. (1969), 42 Ill. 2d 339, 247 N.E.2d 401; Winnett v. Winnett (1974), 57 Ill. 2d 7, 310 N.E.2d 1; Illinois Pattern Jury Instructions, Civil, No. 400.06 and comment (2d ed. 1971).) The liability of a manufacturer extends only to situations in which a product is being used for its intended purpose or in a manner for which it is reasonably foreseeable that it may be used. In Winnett, the Illinois Supreme Court went on to note:

“A foreseeability test, however, is not intended to bring within the scope of the defendant’s liability every injury that might possibly occur. *** Foreseeability means that which it is objectively reasonable to expect, not merely what might conceivably occur.” 57 Ill. 2d 7,12-13, 310 N.E.2d 1, 4-5.

In the instant case the expert "witnesses had different opinions as to whether plaintiff’s injury occurred in a reasonably foreseeable manner. Severy and Kelsey testified that if spokes on a wire wheel become loose, the owner might attempt to fix them himself, and Kelsey further testified that the likelihood of the owner doing so would be enhanced by the failure of the service department to remedy the problem. Severy concluded that the method used by plaintiff was not the “learned approach” but was the direct and foreseeable method to be utilized. On the other hand, Smith, noting that the sharp metal edge would only be exposed if the five bolts were removed and the cover taken off, testified that the wheel cover was not unreasonably dangerous for “normal customer usage.”

We have some reservations concerning the probative value of some of the “expert” testimony adduced in the instant case as it merely stated the obvious about ordinary human behavior. We cannot say that the admission of such evidence was prejudicial to defendants.

In Illinois, an expert is permitted to express his opinion on ultimate issues in a case on the theory that because the trier of fact is not required to accept the opinion of the expert, the admission of such evidence does not usurp the province of the jury. (Merchants National Bank v. Elgin, Joliet & Eastern Ry. Co. (1971), 49 Ill. 2d 118, 273 N.E.2d 809; Scott v. Dreis & Krump Manufacturing Co. (1975), 26 Ill. App. 3d 971, 326 N.E.2d 74.) “The conflicting testimony of expert witnesses normally raises an issue uniquely determinable by the trier of fact, who is in a better position to review the pertinent exhibits and assess the credibility of the witnesses.” (St. Paul Fire & Marine Insurance Co. v. Michelin Tire Corp. (1973), 12 Ill. App. 3d 165, 179, 298 N.E.2d 289, 299. See also Anderson v. Hyster Co. (1977), 56 Ill. App. 3d 41, 371 N.E.2d 279.) Further, questions of foreseeability are ordinarily for the jury to resolve. (Dunham v. Vaughan & Bushnell Manufacturing Co. (1969), 42 Ill. 2d 339, 247 N.E.2d 401.) Whenever there is doubt as to the foreseeability of a particular use, whether the maker should have anticipated such use is an issue of fact. Kuziw v. Lake Engineering Co. (7th Cir. 1978), 586 F.2d 33, citing 2 J. Dooley, Modern Tort Law sec. 32.79 (1977).

In light of the foregoing and after careful review of the record, we find that there was sufficient evidence to submit the case to the jury and, therefore, the trial court did not err in denying defendants’ motions for directed verdict and for judgment notwithstanding the verdict. As stated, questions of foreseeability, as well as whether a product is unreasonably dangerous, are ordinarily for the jury to decide. Further, in the instant case we have the conflicting testimony of expert witnesses which raises issues of fact. As to the issue of foreseeability, we have the prior attempts of plaintiff to have the problem remedied by Elder’s service department and the existence of the spoke repair kit, which could be purchased by any Cadillac owner, as proof that such problems were foreseen. We cannot say, as a matter of law, that the sharp edge on the disc is not an unreasonably dangerous condition when used in a reasonably foreseeable manner.

Defendants cite Tibbets v. Ford Motor Co. (1976), 4 Mass. App. 738, 358 N.E.2d 460, as a factually similar case which supports their position. In Tibbetts, the plaintiff injured his fingers while attempting to remove a wheel cover from his automobile. In partially denying defendant’s motion for directed verdict, the trial court allowed four counts in this negligence action to go to the jury. The jury imposed liability against defendant for “negligent failure to inspect and test the wheel cover.” On appeal, the appellate court reversed the trial court, holding that defendant’s motion for directed verdict should have been allowed. While we recognize that Tibbetts, like the instant case, involved an injury incurred as a result of contact with a wheel cover, we note initially that Tibbetts was a negligence action and, in the instant case, plaintiff proceeded under the theory of strict liability in tort. Further, the court in Tibbetts expressly stated that that case did not involve a wheel cover slot "with hidden sharp edges that could seriously injure someone merely inserting his hand. For the reasons stated, we find Tibbetts distinguishable from the instant case.

Defendants also assert that the trial court erred in denying their alternative motion for new trial in that the cumulative effect of certain trial errors deprived defendants of a fair trial. Without detailing defendants’ specific contentions, we note that we agree "with plaintiff that, considering the length of the trial and the nature of the litigation, the trial was remarkably free of error and well tried on both sides. We have reviewed the alleged errors and find none to be prejudicial as to deprive defendants of a fair trial.

One matter deserves mention. Defendants complain of testimony concerning other alleged defects in the construction of the wheel covers and the admissibility of a spoke repair kit and a service bulletin that made reference to the repair kit. This evidence was admissible, not as proof of additional defects, but simply to show that the spokes did in fact rattle, that being the reason the plaintiff undertook to repair the wheel cover. The availability of the spoke repair kit was relevant to the question of defendants’ knowledge that it was reasonably foreseeable that the spokes might become loosened and that the repair of the wheel cover might be undertaken by an owner.

For the foregoing reasons, the judgment of the circuit court of St. Clair County, entered on the jury verdict, is affirmed.

Affirmed.

HARRISON, J., concurs.

JUSTICE WELCH,

dissenting:

The majority employs many often-used rules of law, derived from section 402A of the Restatement (Second) of Torts. I cannot take issue with this language, as it has become a well-established part of the rhetoric of strict products liability. But in applying these generalities to the facts of this case, the majority has reached a result which, in effect, substitutes the foreseeability of the accident for the unreasonably dangerous nature of the product as the outer limit of liability. Because this is an unprecedented and unrealistic expansion of the law of products liability, I must dissent from the decision of the majority.

In its opinion, the majority notes that the plaintiff must show that the product was unreasonably dangerous when used in a reasonably foreseeable manner. To me, this involves two inquiries: first, was the plaintiff using the product in a reasonably foreseeable manner, and second, was the product unreasonably dangerous for that use. In this case, the majority confines itself to the first of these questions when it states that “the real inquiry involves whether plaintiff was acting in a reasonably foreseeable manner in attempting to repair the wheel cover himself and whether the method he utilized was reasonably foreseeable.” (109 Ill. App. 3d 11, 17, 440 N.E.2d 180, 185.) It answers both foreseeability questions in the affirmative, and thus finds liability.

I, too, agree that it was foreseeable that the plaintiff would work on the wheel cover. In fact, there are virtually no automotive repairs which I cannot imagine some consumer, somewhere, attempting at home. It is common knowledge that, in addition to spoke kits, other parts are available individually from dealers and independent suppliers. An entire car can be built, rebuilt or repaired with these parts, and in these times it is foreseeable that more people will decide to undertake these tasks themselves. Yet, it is the logical conclusion to the reasoning of the majority that if someone is cut while performing home auto repairs, of whatever sort, then he can recover from the manufacturer of the car.

The majority attempts to disclaim these obvious results of its decision by stating that “there are many sharp edges on the various parts of an automobile that could not reasonably be classified as unreasonably dangerous considering their location and the unlikelihood that someone not a mechanic would come in contact with them.” (109 Ill. App. 3d 11, 17, 440 N.E.2d 180, 185.) But this so-called limitation of the holding is actually no limitation at all. If foreseeability is the boundary of liability, then, as I have noted above, virtually any car-repair injury, being reasonably foreseeable, is actionable. If the location of the sharp edge is the test, then what about a sharp edge near the carburetor? Behind the dashboard? In the distributor? Under the valve covers? The majority provides no reason that a sharp edge in these locations, all of which are common trouble spots, would not give rise to the manufacturer’s liability, while an injury received after the removal and disassembly of the wheel cover, is actionable. I fail to detect any obvious difference between the former locations and the latter, nor does the majority suggest any.

The flaw with the majority’s opinion is that it unsuccessfully attempts to confine its result to “foreseeable” repairs, whatever they may be, while ignoring the very limitation which section 402A itself places on liability — namely, that the product be unreasonably dangerous. Whether a product may be considered to be unreasonably dangerous is a question of policy, involving such factors as

“(1) the usefulness and desirability of the product, (2) the availability of other and safer products to meet the same need, (3) the likelihood of injury and its probable seriousness, (4) the obviousness of the danger, (5) common knowledge and normal public expectation of the danger, particularly for established products, (6) the avoidability of injury by care in use of the product, including the effect of instructions or warnings, and (7) the ability to eliminate the danger without seriously impairing the usefulness of the product or making it unduly expensive.” (63 Am. Jur. 2d, Products Liability sec. 132 (1972).)

In finding liability because the plaintiff’s repairs were reasonably foreseeable, the majority has stopped short of discussing these issues and thus fails to meet the policy objections which the appellants raise to challenge the judgment against them. Moreover, by analyzing only the plaintiff’s conduct, the majority also departs from the fundamental tenet of products liability law that the focus in such a case should be on the product itself. Kerns v. Engelke (1979), 76 Ill. 2d 154, 390 N.E.2d 859.

Simply stated, the broad question posed by this case is what standard of performance is to be demanded from an auto manufacturer. The plaintiff’s complaint alleged that his Cadillac was defective because the edges were sharp in the area under the center disc of the wheel cover, because no warning was provided to protect the consumer from that hazard, and because no instructions were given. If, as the majority holds, these defects are actionable, then a car is reasonably safe only if virtually every potentially sharp edge is trimmed with jewelry-like precision, if the car is bedecked with warning stickers for each sharp edge which could remain, and if a service manual is provided to the buyer. I cannot believe that a car which falls short of these standards is “unreasonably dangerous.” An examination of the relevant case law reveals more realistic guidelines.

Most of the reported decisions in which a plaintiff has recovered damages for a defective automobile have involved the inability of the car to serve its primary function — transportation. Engine, transmission, brake, and steering failure are typical subjects of these cases. (Annot., 78 A.L.R.2d 460 (1961); R. M. Goodman, Automobile Design Liability (1970, Supps. 1971 — 1977, 1981).) Such a defect is not presented here. Instead, we are faced with a cutting surface which injured the plaintiff only when he acted to repair his car on his own.

It has been held that a plaintiff who is cut on a sharp edge in the passenger compartment of a car may recover damages for his injuries. (Ford Motor Co. v. Zahn (8th Cir. 1959), 265 F.2d 729 (passenger thrown into jagged edge on ashtray in 1956 Ford).) In certain situations, it has been held that one who collides with a sharp edge on the exterior of a car is also entitled to recover damages. (Compare Green v. Volkswagen of America, Inc. (6th Cir. 1973), 485 F.2d 430 (girl’s finger severed in body vent of parked 1956 microbus while she was playing ball in its vicinity), and Passwaters v. General Motors Corp. (8th Cir. 1972), 454 F.2d 1270 (motorcyclist cut on decorative flippers on wheel cover during collision with 1964 Buick), with Schneider v. Chrysler Motors Corp. (8th Cir. 1968), 401 F.2d 549 (car owner cut on wing vent window of 1960 Valiant while trying to look into car in dark garage to see if keys were in it), Hatch v. Ford Motor Co. (1958), 163 Cal. App. 2d 393, 329 P.2d 605 (child walked into radiator ornament on 1939 Ford), Kahn v. Chrysler Corp. (S.D. Tex. 1963), 221 F. Supp. 677 (child rode bicycle into tailfin of 1957 Dodge).) Similarly, plaintiffs who have been cut while performing what can best be described as “routine maintenance” have established the liability of the manufacturer. (Kikis v. Ford Motor Co. (Fla. App. 1980), 386 So. 2d 306, rev’d (Fla. 1981), 401 So. 2d 1341, on remand (Fla. App. 1981), 405 So. 2d 1061 (owner cut on hole of wheel cover while removing it to change tire); Vlahovich v. Betts Machine Co. (1970), 45 Ill. 2d 506, 260 N.E.2d 230 (truck driver cut by plastic lens of clearance light which shattered while he was changing a bulb). See also Pouncey v. Ford Motor Co. (5th Cir. 1972), 464 F.2d 957 (car owner cut by blade which broke off from radiator fan while owner was adding anti-freeze to car).) Also, I might add that the plaintiff in Tibbetts v. Ford Motor Co. (1976), 4 Mass. App. 738, 358 N.E.2d 460, was attempting to perform such routine maintenance when he was injured, namely, changing a tire. However, he sought to remove the wheel cover by inserting his bare hand into the decorative slots of the cover and pulling it, instead of trying to pry the cover loose. (Compare Kikis v. Ford Motor Co.) Tibbetts should property be thought of as an example of a misused product. That case is not distinguishable from the present case, as the majority claims, because it was a negligence action, since the court specifically answered the question of whether the wheel cover was defective, which is a prerequisite to proving a case either in negligence or in strict liability.

All of the cases discussed above limit liability to those plaintiffs who were automobile passengers, those who collided with the automobiles, and those who were performing routine maintenance such as changing tires, light bulbs and filters or adding vital fluids. It is reasonable to expect a manufacturer to trim those edges which could come in contact with someone engaging in these common activities. But to require that all surfaces between the center crest piece and the retaining disc of the wheel cover be completely safe for human contact would effectively require all surfaces anywhere in the car to be machined to perfection.

Nor does Elliott v. General Motors Corp. (7th Cir. 1961), 296 F.2d 125, justify such a result. There, the plaintiff was a mechanic who was employed to replace the piston rings on a Chevrolet. While he lay on his back underneath the car with his hand extended through an opening in a splash shield under the front end of the car, removing fan pulley bolts and loosening connecting rod bolts with a socket wrench, his hand slipped from the wrench, throwing his right wrist against a sharp edge on the shield. Although replacing the piston rings is certainty not routine maintenance, this case is of no assistance to the plaintiff, because the opening in the shield was designed specifically to permit mechanics to gain access to the engine compartment. There is no proof that the opening under the wheel cover of the plaintiffs Cadillac was intended to provide any sort of access for repair work, despite the plaintiffs reference in his complaint to this space as an “access area.” In fact, the only way that the sharp edge could be exposed was for the plaintiff to remove the wheel cover and then remove the five bolts in the wheel cover in order to disassemble it.

The majority’s decision to hold the defendants liable for failure to correct a sharp edge in an opening underneath the center crest piece of the wheel cover means that auto manufacturers must trim all possibly sharp edges, of glass, plastic, or metal, wherever they are located, so as to make the car as safe as a child’s toy. Such a standard of perfection in workmanship, while a commendable goal, cannot be the test of whether a product is unreasonably dangerous. Instead, consideration of the relevant policy issues and cases discussed above shows that a sharp edge on a car is not unreasonably dangerous unless it is likely to come in contact with a passenger, with someone who collides with the vehicle, or with someone who performs routine maintenance on the car. Such an edge would also be unreasonably dangerous if it were on a part designed as an access area. (Elliott.) Since none of these descriptions applies to the metal edge in question, there can be no reasonable inference that the automobile was unreasonably dangerous (Rockett v. Chevrolet Motor Division, General Motors Corp. (1975), 31 Ill. App. 3d 217, 334 N.E.2d 764), and therefore the court erred in submitting this case to the jury.


source: Caselaw Access Project

author: JUSTICE JONES

license: Public Domain

text:
    WALTER M. PASKAS et al., Plaintiffs-Appellants, v. ILLINI FEDERAL SAVINGS & LOAN ASSOCIATION et al., Defendants-Appellees.
    Fifth District
    No. 81—486
    Opinion filed August 18, 1982.

      Thomas J. Nold, of Belleville, for appellants.
    Listeman, Bandy & Hamilton, of Belleville (John M. English, of counsel), for appellee Illini Federal Savings & Loan Association.
    Victoria J. Ehret, of Belleville, for appellee Anne T. Skikas.
   JUSTICE JONES

delivered, the opinion of the court:

This action was brought by plaintiffs Walter Paskas (Paskas) and his wife, Agnes, to recover a sum of $14,293.60 which they allege defendant Illini Federal Savings & Loan Association (Illini) wrongfully paid out to Julian Baltakis, a joint depositor with plaintiffs in a joint savings account at Illini. Also named as defendants are the estate of Julian Baltakis and Anne Skikas, the latter of whom was named as a joint tenant with Baltakis in a new account opened with the funds in question. A counterclaim was filed by Illini pursuant to section 26.2 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 26.2) in which it tendered the disputed sum to the court and disclaimed any interest in the funds except as to usual bank charges and attorney fees. The trial court found that defendant Anne Skikas was entitled to the proceeds of the joint account "with Baltakis and ordered that plaintiffs take nothing from the suit. The court further found against Illini on its counterclaim. Plaintiffs appeal and Illini cross-appeals from this judgment. We affirm.

On September 8, 1970, plaintiff Paskas opened a savings account with Illini with a deposit of $20. This account was changed to a joint savings account on September 17, 1970, when Paskas added the name of his uncle, Julian Baltakis, as joint tenant with right of survivorship. At that time, Baltakis deposited $3,000 which was to be used to pay his burial expenses. Paskas and his uncle signed a signature card creating the joint account and received a passbook, which Paskas retained in his possession.

The passbook contained the following “information” about the account:

“1. ADDITIONS AND WITHDRAWALS-*** Passbook must be presented for withdrawal.
* * *
3. LOSS OR DESTRUCTION OF PASSBOOK-Please notify us without delay if this book is lost, stolen, or destroyed. A new book will be issued after an affidavit is executed by all the owners of the account.” (Emphasis added.)

The signature card stated in pertinent part: “A specimen of our signatures appears above and you are hereby authorized to act without further inquiry in accordance with writings bearing any one of such signatures. If only one signature is required, the Association may pay without liability for such payment to any one or to the survivors at any time.”

The parties subsequently made three substantial deposits into the account: $2,100 from a joint checking account of Paskas and his wife, $9,496.14 from a savings account in the name of Julian Baltakis and his sister (Paskas’ mother), and $2,135.35 from the sale of property jointly held by Paskas and his uncle. Various amounts were withdrawn and used to pay taxes on and maintain family rental property, to build a fence around Paskas’ sister’s house when his uncle went to live there, and to buy a hearing aid for the uncle.

Paskas testified that during this time there was never any discussion as to who put money into the account. “It was a family affair. Whoever wanted it put it in.” Paskas, however, maintained exclusive possession of the passbook and handled all transactions regarding the account. Paskas’ social security number was on the account, and he received all statements of interest earnings and reported this income on his individual tax returns. On March 26, 1976, Paskas had his wife’s name added to the account.

In a letter dated March 29, 1976, Julian Baltakis, through his attorney, requested that Paskas surrender the passbook to him for purposes of making changes in the account. Baltakis cited as reasons for his request that (1) the account did not carry his social security number and he (Baltakis) did not receive any of the records pertaining to earnings; (2) he did not authorize certain recent withdrawals from the account; and (3) he did not authorize the inclusion of Paskas’ wife on the account. In April 1976, Baltakis withdrew the funds from the joint account by means of an indemnification agreement signed by himself. The agreement stated that “said account represents savings of the undersigned *** [and] WALTER M. PASKAS and AGNES D. PASKAS have not contributed any part whatsoever toward said pro1 ceeds[;]- *** the names of WALTER M. PASKAS and AGNES D. PASKAS were placed on said account for convenience purposes only *** [and] the undersigned desires to withdraw said account and make other arrangements with regard thereto, and does not have the passbook pertaining thereto.” The $14,293.63 which was then in the account was placed in a second joint savings account with Baltakis’ niece (Paskas’ sister), Anne Skikas. Baltakis died in March 1978 and Anne Skikas claimed the proceeds of the account by reason of her status as surviving joint tenant. Paskas testified that he first became aware of the withdrawal in January 1977 when he received from Illini and Internal Revenue Service Form #1099 which indicated that the account balance was “0.”

On appeal from the judgment for defendant Skikas, plaintiffs contend that the trial court erred in finding that Illini breached no conditions precedent in allowing Baltakis to "withdraw funds from the joint account without presenting the passbook. They further contend that Illini misrepresented to Paskas its policy concerning withdrawals without a passbook and that Illini failed in its fiduciary duty to advise Paskas whether the signature card or the terminology appearing in the back of the passbook controlled withdrawals from the account. Finally, plaintiffs assert that defendant Skikas should not be allowed to benefit from the wrongful acts of her uncle and that the court should thus impose a trust in their favor on the proceeds of the account.

It is well established in Illinois that an agreement creating a joint account governs the rights of the parties thereto (Speasl v. National Bank (1962), 37 Ill. App. 2d 384, 186 N.E.2d 84; In re Estate of Gubala (1967), 81 Ill. App. 2d 378, 225 N.E.2d 646; In re Estate of Macak (1973), 14 Ill. App. 3d 261, 302 N.E.2d 436), and such an agreement will not be limited by internal rules of the bank which have been printed in the passbook. (Speasl v. National Bank.) Plaintiffs contend that presentation of the passbook was a condition precedent to withdrawal from the account and that Illini thus breached its contractual duties by paying funds to Baltakis in the absence of the passbook, mini’s payment, however, was consistent with the parties’ agreement as contained in the signature card wherein Illini was authorized to pay out funds from the account “in accordance with writings bearing any one of [the depositors’] signatures.” This situation is virtually identical to that addressed in Speasl v. National Bank, where the court stated:

“[T]he joint depositors saw fit to enter into an express agreement with defendants [bank] under which the latter was authorized to pay the deposit to either plaintiff or her mother. The permission or authority thus granted was not limited so as to be effective only when the passbook was presented by one of the depositors. Whatever the rules and regulations of defendant may have provided with reference to production of the passbook when a depositor withdrew money, it did not deprive the parties of the right to expressly agree as to the conditions under which their joint deposit might be paid out by the defendant. Such right was exercised by the joint depositors and the defendant bank.” 37 Ill. App. 2d 384, 389, 186 N.E.2d 86, 87.

In this case, as in Speasl v. National Bank, the signature card agreement was within the purview of section 2(a) of “An Act to revise the law in relation to joint rights and obligations” (Ill. Rev. Stat. 1979, ch. 76, par. 2(a)), which states:

“When a deposit in any bank or trust company transacting business in this State has been made or shall hereafter be made in the names of two or more persons payable to them when the account is opened or thereafter, such deposit or any part thereof or any interest or dividend thereon may be paid to any one of said persons whether the other or others be living or not, and when an agreement permitting such payment is signed by all said persons at the time the account is opened or thereafter the receipt or acquittance of the person so paid shall be valid and sufficient discharge from all parties to the bank for any payments so made; ***.”

Further, section 4 — 10(a) of the Illinois Savings and Loan Act (Ill. Rev. Stat. 1979, ch. 32, par. 770(a)) provides:

“If two or more persons opening or holding a withdrawal capital account shall execute a written agreement with the association or federal association providing that the account shall be payable to any or the survivor of them, the account, and any balance thereof which exists from time to time, shall be held by them as joint owners with right of survivorship and, unless otherwise agreed, any payment by the association or federal association to any of such persons shall be a complete discharge of the association’s or federal association’s obligation as to the amount so paid.”

Under these statutes, then, Illini properly discharged its obligation towards plaintiffs when it paid the amount of the disputed withdrawal according to the terms of the parties’ agreement. The parties’ rights and obligations under the contract were not limited by internal bank procedures concerning presentation of the passbook. We therefore find that Illini incurred no contractual liability in paying funds from the account in the absence of a passbook.

Plaintiffs contend, however, that Illini owed them a fiduciary duty which it breached by failing to explain the conflicting terminology concerning withdrawals found in the signature card and the passbook. Plaintiffs assert that Illini’s failure to advise them that the signature card took precedence over statements contained in the passbook was tantamount to a false representation and thus constituted constructive fraud.

Constructive fraud is defined as a breach of legal or equitable duty which, irrespective of the moral guilt of the wrongdoer, the law declares fraudulent because of its tendency to deceive others. (In re Estate of Neprozatis (1978), 62 Ill. App. 3d 563, 378 N.E.2d 1345.) Constructive fraud will be found in a breach of duty arising out of a fiduciary or confidential relationship. (19 Ill. L. & Prac. Fraud sec. 5 (1956).) Such a fiduciary relationship may be presumed from the very relationship of the parties, such as in the case of attorney and client or trustee and beneficiary, or may be found to exist in a particular situation where confidence is reposed on one side and there is a resulting superiority and influence on the other side. Higgins v. Chicago Title & Trust Co. (1924), 312 Ill. 11, 143 N.E. 482; 15 Chi.-Kent Rev. 328 (1937); see Illinois Rockford Corp. v. Kulp (1967), 88 Ill. App. 2d 458, 232 N.E.2d 190, rev’d on other grounds (1968), 41 Ill. 2d 215, 242 N.E.2d 228.

In the instant case, plaintiffs’ count IV in which they alleged Illini’s breach of fiduciary duty was stricken by the trial court as being insufficient in law and thus was not considered by the court in reaching its decision. While plaintiffs do not cite the dismissal of this count as error but merely argue the merits of the issue on appeal, we find no error in the trial court’s ruling. Plaintiffs present no authority, nor are we aware of any, which would indicate that, in Illinois, a fiduciary relation exists as a matter of law between a bank and its depositor. (But cf. Stewart v. Phoenix National Bank (1937), 49 Ariz. 34, 64 P.2d 101, where the Arizona Supreme Court held that the relationship between a bank and a customer whom it advises on financial matters comes within the category of relations legally presumed to be fiduciary. See also 15 Chi.-Kent Rev. 328 (1937).) Rather, a debtor-creditor relationship exists between the depositor and the bank and the contract between the two controls their relationship. (Menicocci v. Archer National Bank (1978), 67 Ill. App. 3d 388, 385 N.E.2d 63.) While a high degree of contractual responsibility is imposed on banks in paying money chargeable against their depositors’ accounts (Menicocci v. Archer National Bank), no fiduciary duty will be found to exist absent facts showing that the depositor was subject to domination and influence on the part of the bank (Evra Corp. v. Swiss Bank Corp. (N.D. Ill. 1981), 522 F. Supp. 820; People ex rel. Barrett v. Central Republic Trust Co. (1939), 300 Ill. App. 297, 20 N.E.2d 999).

Plaintiffs’ complaint alleged no facts giving rise to such a fiduciary duty, nor was there any showing at trial that Illini breached any duty owing to plaintiffs. In count IV, which was dismissed by the court, plaintiffs stated only that they “reposed the greatest trust and confidence in Defendant’s skill and judgment in handling the passbook savings account.” There is no indication, however, that plaintiffs were subject to the domination and control of Illini. Rather, the evidence shows that Paskas was experienced in handling the financial affairs of his family and had dealt not only with Illini but with other similar financial institutions over the years. Although plaintiffs may have reposed confidence in Illini to the extent that anyone reposes trust and confidence in a commercial bank, there was no resulting superiority and influence on Illini’s part so as to create a fiduciary relationship. (See Evra Corp. v. Swiss Bank Corp.; People ex rel. Barrett v. Central Republic Trust Co.) In the absence of a fiduciary relationship, Illini owed no duty to plaintiffs to explain the legal effect of its rules regarding passbooks, as knowledge of the law is equally available to all parties and a cause of action cannot be predicated upon a misapprehension or misrepresentation of the law. (Peterson v. Yacktman (1960), 25 Ill. App. 2d 208, 166 N.E.2d 452; Rogan v. Illinois Trust & Savings Bank (1900), 93 Ill. App. 39, aff’d sub nom. Foote v. Illinois Trust & Savings Bank (1902), 194 Ill. 600, 62 N.E. 834; 19 Ill. L. & Prac. Fraud sec. 7 (1956).) We thus find that the trial court correctly dismissed the count of plaintiffs’ complaint alleging breach of fiduciary duty by Illini, and we accordingly affirm its decision finding no misrepresentation on Illini’s part.

Plaintiffs’ claim against defendant Anne Skikas is based upon the allegedly false representations made by Baltakis in making the withdrawal from the parties’ joint account. The indemnity agreement executed by Baltakis contained assertions that plaintiffs had “not contributed any part whatsoever” toward the proceeds of the account and that plaintiffs’ names were placed on the account “for convenience purposes only.” Plaintiffs contend that these false representations rendered Baltakis’ withdrawal fraudulent and that Skikas, who was named as joint tenant in the second account established with the proceeds in question, should be estopped from benefitting from Baltakis’ wrongful act.

We find no merit in these contentions as plaintiffs have failed to show a fraudulent intent on Baltakis’ part in making the disputed withdrawal. Such intent is a necessary element of actionable fraud, as fraud implies a wrongful intent, an act calculated to deceive. (People v. L & M Liquors, Inc. (1976), 37 Ill. App. 3d 117, 345 N.E.2d 817; 19 Ill. L. & Prac. Fraud sec. 4 (1956).) Here, Baltakis was entitled to withdraw the entire proceeds of the joint tenancy account upon his written request, and any assertions concerning the source of the deposited funds were immaterial to his rights as joint tenant. (See In re Estate ofTaggert (1973), 15 Ill. App. 3d 1079, 305 N.E.2d 301.) Thus, while plaintiffs dispute the accuracy of Baltakis’ statements, this is insufficient to establish that they were made in an attempt to defraud plaintiffs of their interest in the joint account. In the absence of such fraud, Baltakis, as a withdrawing joint tenant, was not legally accountable to the other joint tenants for the funds so withdrawn, nor, after his demise, are his personal representatives or beneficiaries. In re Estate of Taggert.

In urging the court to look beyond the form of the joint bank account and exercise its equitable powers to determine ownership of the account proceeds, plaintiffs emphasize Paskas’ role in the family as the “key dominant male figure.” As such, Paskas handled financial transactions for his mother and uncle and managed certain property which was jointly owned by him and his uncle. According to Paskas, “[i]t was a family and I was the boss.” While Paskas may feel strongly that his family status entitles him rather than his sister to the proceeds of the account in question, this is of no legal significance in determining rights which arise from the creation of a joint bank account. “[A]n instrument creating a joint account under the statutes presumably speaks the whole truth,” and one seeking to go behind the terms of the agreement has the burden of establishing that its effect was not intended. (Murgic v. Granite City Trust & Savings Bank (1964), 31 Ill. 2d 587, 591, 202 N.E.2d 470, 472.) In the instant case, we believe the trial court correctly found that the parties’ rights were governed by the agreements between them, and we accordingly affirm its judgment for defendant Skikas.

Turning finally to Illini’s cross-appeal for attorney fees, we note that Illini made no prayer for such relief at trial nor did it present any evidence concerning this claim. Rather, Illini’s pleading was merely a counterclaim for interpleader under section 26.2 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 26.2), whereby Illini requested permission to pay the disputed sum into the court and sought to be discharged from liability to the other parties in the suit. While the counterclaim contained a general request for “such other and further relief as may seem just and equitable,” Illini made no allegations regarding entitlement to attorney fees either under the account agreement with plaintiffs and Baltakis or the indemnity agreement with Baltakis. It is elementary that “relief should not be granted where not pleaded [and] the pleader must stand or fall with the case made by the pleading.” (Warnes v. Champaign County Seed Co. (1955), 5 Ill. App. 2d 151, 156, 124 N.E.2d 695, 697; Tison & Hall Concrete Products Co. v. A.E. Asher, Inc. (1967), 86 Ill. App. 2d 34, 229 N.E.2d 137.) Where there was no prayer for attorney fees by Illini and no evidence presented at trial on this claim, there was no basis upon which such relief could be granted. The trial court therefore did not err in failing to award Illini court costs and attorney fees incurred in defending this suit.

Affirmed.

EARNS, P. J., and WELCH, J., concur.


author: JUSTICE HARRISON

text:
    WILLIAM H. CHRISTINSON, Trustee, Plaintiff-Appellee, v. VENTURI CONSTRUCTION COMPANY et al., Defendants-Appellants.
    Fifth District
    No. 81—581
    Opinion filed August 23, 1982.

      John J. Flood, of Musick & Mitchell, P. C., of Mt. Vernon, for appellants.
    Alice M. Jordan, of Richard C. Cochran Law Office, of Fairfield, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

The defendants, Venturi Construction Company and Robert W. Venturi (hereinafter both defendants are referred to collectively as “Venturi”), appeal from a final judgment of the circuit court of Wayne County for $33,725.57 plus costs of suit, in favor of the plaintiff, William H. Christinson as trustee in bankruptcy in re Illinois Valley Acceptance Corporation (hereinafter referred to as “IVAC”). The plaintiff sued on two negotiable instruments which had been executed by Venturi. This appeal raises two issues. First, Venturi contends that the plaintiff is not a holder in due course because IVAC and the seller of the instruments in question, the Moody Manufacturing Company (hereinafter referred to as “Moody”), were so closely connected with one another that Moody’s lack of good faith and its notice of Venturi’s personal defenses should legally be imputed to the plaintiff. Second, Venturi asserts that the evidence at trial sufficiently established the defense of fraud in the factum under Section 3 — 305(2)(c) of the Uniform Commercial Code (Ill. Rev. Stat. 1979, ch. 26, par. 3 — 305(2)(c>). For the reasons which follow, we affirm the judgment of the circuit court.

Venturi first purchased products from Moody in 1968. In May of that year, Venturi signed a trade acceptance for the first time, after being assured that the document was of no legal effect and would only be used to obtain financing for Moody. A Moody salesman provided Venturi with the names of two persons whom Venturi could contact to confirm the representations. Venturi did telephone these people and was assured that the statements were true. On this basis, Venturi signed the trade acceptance. About a year later, Venturi signed two more trade acceptances after the Moody salesman told him that the previous trade acceptance had been torn up. Venturi testified that he believed that he was not ordering goods, but rather was merely indicating his potential requirements for the coming year in order to facilitate bank loans for Moody and to insure better delivery of possible future orders to Venturi. Venturi testified on cross-examination that, although he had an opportunity to telephone his bank to determine the nature of the instrument which he was signing, he did not do so.

Robert W. Martin, Jr., testified for the plaintiff that he was an officer of I VAC and that he had received the two trade acceptances from Moody, paying for them by check. Martin further testified that each trade acceptance was acquired before its maturity date, that at the time of purchase he lacked notice of any defenses to the instruments, and that Venturi had not paid the trade acceptances. On cross-examination, Martin testified that Moody assigned all of its accounts receivable to IVAC pursuant to a written financing agreement and that some trade acceptances were accompanied by invoices and some were not.

The plaintiff brought suit on two instruments which were denominated as “trade acceptances.”

“A trade acceptance is a draft or bill of exchange drawn by a seller on the purchaser of goods sold, and accepted by the purchaser. Its purpose is to make the book account liquid and permit the seller to raise money on it before it is due under the terms of the sale. [Citations.] When properly drawn, it is negotiable paper and its use results in advantages to both the purchaser and the seller. Properly used, it represents current merchandise transactions only, and in this respect, it is different from an ordinary promissory note which may be given for a past due account, borrowed money or for any other consideration. The principal function of a trade acceptance is to take the place of selling goods on an open account.” (Gilliland & Echols Farm Supply & Hatchery v. Credit Equipment Corp. (1959), 269 Ala. 190, 192, 112 So. 2d 331, 332-33.)

Venturi does not question the formal negotiability of the instant trade acceptances, nor plaintiff’s status as a holder, and he has admitted his signature to both instruments. “When signatures [on commercial paper] are admitted or established, production of the instrument entitles a holder to recover on it unless the defendant establishes a defense.” (Ill. Rev. Stat. 1979, ch. 26, par. 3 — 307(2); Leopold v. Halleck (1982), 106 Ill. App. 3d 386, 389, 436 N.E.2d 29, 31.) Venturi seeks to raise several defenses. First, he contends that the plaintiff is not a holder in due course (see Ill. Rev. Stat. 1979, ch. 26, par. 3 — 302), which status would preclude Venturi from asserting most of his defenses (Ill. Rev. Stat. 1979, ch. 26, par. 3 — 305), because TVAC and Moody were so closely connected with one another, that Moody’s lack of good faith and its knowledge of Venturi’s personal defenses may legally be imputed to the plaintiff.

Under the close connection doctrine, a purchaser of negotiable paper cannot be a holder in due course if his relationship with the transferor of such paper is too intimate. (See Unico v. Owen (1967), 50 N.J. 101, 122-23, 232 A.2d 405, 417; J. White and R. Summers, Uniform Commercial Code sec. 14 — 8, at 479 (1972).) Unico treated a close connection between business entities as a separate bar to establishing holder in due course status, apparently distinct from the Uniform Commercial Code requirements of good faith (Ill. Rev. Stat. 1979, ch. 26, par. 3 — 302(b)), and lack of notice of claims or defenses (Ill. Rev. Stat. 1979, ch. 26, par. 3 — 302(c)). Although the doctrine has been discussed by the appellate court (Schranz v. I. L. Grossman, Inc. (1980), 90 Ill. App. 3d 507, 520, 412 N.E.2d 1378; Personal Finance Co. v. Meredith (1976), 39 Ill. App. 3d 695, 700, 350 N.E.2d 781), Meredith, like Unico, arose from consumer financing transactions and was decided under section 17 of the Retail Installment Sales Act (Ill. Rev. Stat. 1975, ch. 121½, par. 517) and Schranz, in language which we find significant, discussed closely connected entities in terms of a “more stringent analysis of the good faith element conducted by courts when examining consumer financing transactions.” (Emphasis added.) (Schranz v. I. L. Grossman, Inc. (1980), 90 Ill. App. 3d 507, 520.) “A consumer who executes a note often has no way of investigating the honesty of the person with whom he deals and his only realistic remedy in the event of breach is to withhold payment.” (Bowling Green, Inc. v. State Street Bank & Trust Co. (1st Cir. 1970), 425 F.2d 81, 85.) The close connection doctrine was apparently fashioned to preserve this remedy for the consumer: where two entities are interrelated, and one of the entities breaches an executory contract with a consumer, allowing the consumer to raise the seller’s default as a defense against the financing entity provides realistic protection for the consumer. However, a commercial obligor typically does not share the defenselessness which characterizes the consumer debtor. Therefore, where a transaction does not involve a consumer as a party, this need for protection is absent, and in such a case, the bald conclusion that two entities are closely connected, without more, provides no reason for denying the holder of an instrument the favored status of the holder in due course.

The statutory concepts of good faith and notice, however, provide an adequate analytical framework for judicial scrutiny of the facts underlying the alleged close connection. Therefore, we, like the court in Schranz, will not analyze the evidence of the Moody-FVAC interrelationship under the rubric of “close connection,” but rather will consider such evidence as a factor in determining the existence of good faith and the absence of notice.

Section 1 — 201(19) defines good faith subjectively as “honesty in fact in the conduct or transaction concerned.” (Ill. Rev. Stat. 1979, ch. 26, par. 1 — 201(19).) The issue of good faith “is a question of fact to be left to the trier of fact.” (Schranz v. I. L. Grossman, Inc. (1980), 90 Ill. App. 3d 507, 520.) Although Venturi argues that many facts point to IVAC’s lack of good faith, most of these facts evidence only that IVAC provided all, or nearly all, of Moody’s financing and was therefore accorded certain collateral powers to protect its investment. These powers were granted by the financing agreement and included the power to open mail and to endorse Moody’s signature to invoices and drafts against debtors, and the right to inspect Moody’s books and records for the purpose of monitoring Moody’s financial condition. None of these powers indicates that IVAC was less than “honest in fact” with regard to the two transactions in question. Considering all of these facts as a whole, as Venturi urges us to do, we cannot conclude that IVAC’s purchase of the instant trade acceptances was necessarily fraught with bad faith by the existence of the IVACMoody interrelationship. Consequently, the trial court’s decision was not against the manifest weight of the evidence. See Dutton v. Roo-Mac, Inc. (1981), 100 Ill. App. 3d 116, 122, 426 N.E.2d 604.

Section 1 — 201(25)(c) provides that a person has notice of a fact when “from all the facts and circumstances known to him at the time in question he has reason to know it exists.” (Ill. Rev. Stat. 1979, ch. 26, par. 1 — 201(25)(c).) The first issue concerning notice is whether the relationship between I VAC and Moody constituted reason for IVAC to know that Moody was breaching the contracts underlying the negotiable instruments which IVAC was purchasing. Under this test, Venturi had to show that IVAC should have known, from all the facts and circumstances, that the trade acceptances in question had not generated corresponding shipments of merchandise. IVAC’s powers under the financing agreement pertained to keeping itself informed of Moody’s financial condition by enabling it to verify Moody’s accounts receivable. IVAC’s power to open mail and sign drafts was apparently designed to protect IVAC in the event of Moody’s insolvency. Because these facts do not involve Moody’s shipping procedures, we cannot conclude that IVAC should have been aware of Moody’s breach of the underlying contracts.

Venturi contends, however, that because no invoices were attached to the trade acceptances, even though other trade acceptances had invoices attached, and because the due date of each instrument was nearly a year after the date the documents were executed, IVAC was put on notice that Venturi had not received any merchandise from Moody. On cross-examination Martin testified that some documents purchased from Moody were accompanied by invoices describing what was being purchased from Moody and that other documents had no such invoices. Apparently the trade acceptances in question were not the only instruments purchased without accompanying invoices. There was no evidence showing that, at the time of purchase, the absence of invoices was unusual. Under the circumstances, we cannot say that these facts constituted notice to IVAC. We note too that this argument has overtones as to the negotiability of trade acceptances. The purchaser of a purportedly negotiable instrument need only look to the instrument itself to determine its negotiability. (Ill. Ann. Stat., ch. 26, par. 3 — 105, Official Comment 8, at 11 (Smith-Hurd 1981 Supp.); Equitable Trust Co. v. Harger (1913), 258 Ill. 615, 617, 102 N.E.209.) Therefore, an argument which would require the purchaser of otherwise negotiable paper to look to a separate instrument in order to determine the negotiability of the purchased paper must be rejected.

The second part of Venturi’s argument is that because the due date was nearly a year after the documents’ date of execution, IVAC had notice of the irregularity of the underlying transaction. The Alabama Supreme Court in Gilliland indicated that the purpose of a trade acceptance “is to make the book account liquid and permit the seller to raise money on it before it is due under the terms of the sale.” (Emphasis added.) (269 Ala. 190, 192, 112 So. 2d 331, 333.) In view of this purpose, the fact that an instrument is payable at a future time cannot be considered a circumstance under section 1— 201(25)(c) from which the purchaser would have reason to know that the underlying transaction was of an irregular nature. We conclude that I VAC had no notice of any fact which would preclude the status of a holder in due course.

Venturi’s final contention is that I VAC may not recover on the instruments because the evidence at trial established that Venturi’s signature was procured by representations amounting to fraud in the factum. Under section 3 — 305 of the Uniform Commercial Code, a holder in due course takes a negotiable instrument subject only to certain defenses, including “such misrepresentation as has induced the party to sign the instrument with neither knowledge nor reasonable opportunity to obtain knowledge of its character or its essential terms.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 26, par. 3— 305(2)(c).) As Uniform Commercial Code Comment 7 to section 3 — 305 indicates:

“The test of the defense here stated is that of excusable ignorance of the contents of the writing signed. The party must *** also have had no reasonable opportunity to obtain knowledge. In determining what is á reasonable opportunity all relevant factors are to be taken into account, including the age and sex of the party, his intelligence, education and business experience; his ability to read or understand English, the representations made to him and his reason to rely on them or to have confidence in the person making them; the presence or absence of any third' person who might read or explain the instrument to him, or any other possibility of obtaining independent information; and the apparent necessity, or lack of it, for acting without delay.
Unless the misrepresentation meets this test, the defense is cut off by a holder in due course.” (Ill. Ann. Stat., ch. 26, par. 3 — 305, Uniform Commercial Code Comment 7, at 184-85 (Smith-Hurd 1963).)

Although Venturi established that he signed the trade acceptances without actual knowledge of their nature, he also testified that he called two people to confirm the salesman’s representations and that he had the opportunity to call his bank to determine the nature of the instrument which he was signing. Under these circumstances we can- ■ not say that Venturi had no reasonable opportunity to obtain knowledge of the instruments’ character and essential terms. The trial court’s judgment against Venturi is therefore not against the manifest weight of the evidence. Dutton v. Roo-Mac, Inc. (1981), 100 Ill. App. 3d 116, 122.

We therefore affirm the judgment of the circuit court of Wayne County.

Affirmed.

JONES and KASSERMAN, JJ„ concur.