dissenting:
My disagreement with the majority has to do with the serious error and significance which I attach to the trial court’s having told the jury that as a matter of law plaintiff was entitled to recover from one or more of the defendants. I think the majority has not really dealt with this question, as it seems to me to be of no consequence whether the court denied or reserved its ruling on plaintiff’s motion for directed verdict, as that fact does not, in my opinion, alleviate any logical inconsistency (as stated by the majority), but, rather, aggravates it. If logic were to be determinative, then it would have required the entry of judgments against Sears and A. O. . Smith notwithstanding the verdicts in their favor, since the requirements for a directed verdict and judgment notwithstanding the verdict are identical.
■ The instruction language which I conceive to have been erroneously given to the jury does not appear in a self-contained instruction, but consists of two prefatory sentences in a rather long instruction setting forth the bases on which the jury was to determine the amount of plaintiffs damages. While I do not consider it error to have covered liability and damages in the same instruction, it does highlight psychologically, at least, the relative importance of the damages issue. The two sentences which I question, read as follows:
“As a matter of law, the plaintiff -is entitled to recover in this case. It is for you to decide whether one defendant, more than one defendant, or all of the defendants are responsible to the plaintiff.”
No form permitting a finding of not guilty as to all defendants was submitted to the jury.
When the court directed the jury that, as a matter of law, it could properly decide that all defendants were guilty, then such an instruction must necessarily meet the Pedrick test as to all defendants. (Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504.) That well-known and oft-cited rule is that verdicts sought to be directed and judgments entered notwithstanding contrary verdicts “only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” (Emphasis added.) 37 Ill.2d at 510.
I have reviewed the very lengthy record, and I believe it can be seen from the majority opinions statement thereof that plaintiff’s evidence relating to the five defendants may have been sufficient to raise a fact question as to the liability of each — but just barely, and, if so, then plaintiff was entitled to have the question of liability submitted for the jury s determination. However, in my opinion, the evidence, “viewed in its aspect most favorable” to defendants, was far, far removed from being of that “overwhelming” character required by Pedrick as the “only” circumstance under which a verdict may properly be directed on the issue of liability.
Concerning plaintiff’s claim against Smith and Sears, I agree with my colleagues’ conclusion (curious, under the circumstances), that the evidence presented a jury question as to these two defendants, and that there was insufficient evidentiary basis for the court to have directed a verdict against them on the issue of liability (albeit for somewhat different reasons which need not be mentioned in view of our agreement as to the end issue). In their finding on this point, however, the majority overlook, and plaintiff in his cross-appeal ignores, the fact that the court had already ruled (in the instruction quoted above), that the evidence did satisfy the Pedrick rule as to Smith and Sears, as a verdict had, in effect, been directed against all defendants as to liability.
Concerning plaintiff’s claim against Northern Illinois Gas, much the same can be said, although here, in a lower key, plaintiff argues, and the majority deny, the proposition that the jury’s not guilty verdict was against the manifest weight of the evidence. This point, too, is considered in a vacuum which excludes consideration of the quoted jury instruction, and is inconsistent therewith. I agree with the majority’s result, however.
Concerning- plaintiffs claim against Pearce, much turns, I think, on the question as to whether or not Pearce had installed or negligently failed to install and maintain a “T” and “P” valve on the heater, there being no doubt about the absence of such a valve when delivered by Smith and Sears. As recited in the majority opinion, Pearce testified that he had called Northern Illinois Gas to inspect the installation of the heater; that he did not know whether there was a “T” and “P” relief valve on the heater; that he didn’t know what one was; and that “he assumed all of the necessary safety precautions were on the heater when it was sold to him.” Edward McLean, an industrial engineer, testified for plaintiff that he was called “to visit the remains of a premises at 424 Clark Street” two days after the occurrence; that there had been "a missile type ejection of the tank from and through the building”; and that he had not found a “T” and “P” valve during his investigation. While Smith and Sears installation manuals directed the addition of a “T” and “P” valve, plaintiff’s consulting engineer Salzenstein testified that “good and accepted engineering practices” would require that a “T’ and “P” valve be incorporated as an integral part of the heater itself by the manufacturer and not left to whoever might make the installation. He also said that the instructions delivered by Sears with their heaters, directing periodic removal of sediment from the bottom of the tank (which was done by Pearce), were incomplete for failure to mention also a periodic opening of the “T” and “P” valve.
This is the sum total of the evidence against Pearce as to any culpability on his part in regard to a “T” and “P” valve. It hardly amounts to "overwhelming” proof either way, and, obviously, if there were no such valve installed, the charge of its negligent maintenance would become hypothetical and of no importance to the case.
I think there is some misunderstanding as to the proper use to which Pearce’s discovery deposition may have been utilized in different phases of this case. In discussing plaintiffs case against Pearce, the court’s opinion refers to Pearce’s having testified on discovery deposition that there was a “T” and “P” valve on the heater unit and that he had inspected it periodically, whereas, as we have seen, he testified at trial that he didn’t know whether there was such a valve, nor did he know what one was. The majority opinion appears to have given considerable weight to this deposition testimony as substantive evidence. To the extent that I have read this correctly, the court has, in effect, admitted the deposition into evidence, contrary to Süpreme Court Rule 212(a), which, in the context of plaintiff’s claim against witness Pearce, provides that a discovery deposition may be used for impeachment purposes only. (Ill. Rev. Stat. 1961, ch. 110A, par. 212(a).) It is true that under the rule, Pearce’s discovery testimony would have been admissible in plaintiff’s case against him at trial if it amounted to an admission, but under plaintiff s primary argument that there had been no "T” and “P” valve, the deposition testimony could hardly be treated as an admission. On the other hand, I would agree that it amounted to an admissible admission in Pearce’s third party complaint against Smith and Sears.
Ironically, the court’s review of the point set forth in the paragraph next above was developed in connection with the argument in Pearce’s brief that the court should have directed the jury to find him not guilty of negligence as a matter of law. The majority opinion concludes, quite correctly, I would agree (though, again, for a somewhat different reason), that the point lacks merit, citing Pedrick. The result, then, is a stand-off. Under Pedrick, neither plaintiff nor Pearce was entitled to a directed verdict.
Returning to the instruction which did direct a verdict against one or more or all of the defendants, I have attempted to point out that it was inappropriate as to any defendant, but that by the oblique form in which it was stated, it afforded the jury the opportunity to consider, and reasonably so, that it had received the court’s prior imprimatur as a matter of law on any guilty verdict it might return. Thus, if the jury had returned a not guilty verdict as to Pearce and guilty verdicts as to all the other defendants, the court would have found itself committed in advance to the entry of judgments on such guilty verdicts. This is an example of one of the reasons why I truly believe that the instruction is tantamount to a directed verdict against all defendants, and, consistent with its directives, the court should then have entered judgment notwithstanding the verdict as to Pearce.
To bolster their conclusion that the instruction which I question was properly given, the majority cite three cases, none of which furnishes the needed support. They are: Krump v. Highlander Ice Cream Co., 30 Ill.App.2d 103, 173 N.E.2d 822; Thomas v. Cagwin, 43 Ill.App.2d 336, 193 N.E.2d 233; and Garrett v. S. N. Nielsen Co., 49 Ill.App.2d 422, 200 N.E.2d 81.
In Krump, plaintiff sued for damages to his building which resulted when two automobiles coUided and one then struck the building. The' trial court directed a verdict in favor of defendants at the close of plain-' tiff’s evidence; it therefore gave no instruction similar to the one in thé instant case. The AppeHate Court first recognized that “the mere happening of an accident, together with the exercise of ordinary care by plaintiff, does not raise any presumption of negligence on the part of the defendants,” citing (among countless other cases which would have been available declaring this principle), the case of Brown v. Boyles, 27 Ill.App.2d 114, 169 N.E.2d 273, which involved a coHision between two vehicles and affirmed a judgment which found all parties not guilty. This proposition I can understand. (For examples of later vehicle collision cases standing for the same principle, see Russell v. Rowe, 82 Ill.App.2d 445, 226 N.E.2d 652; Nilsson v. Checker Taxi Co., 4 Ill.App.3d 718, 281 N.E.2d 721, and Malone v. Chicago Transit Authority, 76 Ill.App.2d 451, 222 N.E.2d 93, both of the last two cases involving defendants which as common carriers owed their plaintiffs' the highest degree of care.) The Krump court, nevertheless, then went on to hold that the collision of the two automobiles did constitute a prima fade case of negligence on the part of one or both of the drivers, prompting reversal and remand for a new trial which would require defendants to go forward with their proof which might establish negligence on the part of one or both defendants. This proposition I cannot understand.
In the Thomas case, there was a head-on coHision between the defendants’ two vehicles, and it was conceded by defense counsel that one or the other of the defendants had been negligent in driving on the wrong side of the road.
In the Garrett opinion (written by the same judge who wrote the Krump opinion), a judgment was affirmed based on a verdict finding one of two defendants (the general contractor) guilty and the other (a subcontractor) not guilty in a construction case involving some shoring of a building which had given way. The only issue on appeal was whether or not the appeUant was entitled to a verdict directed in its favor. The defense of each defendant had been that the other was responsible. There was no instruction similar to the one in the instant case, but the court had employed the simple expedient of not giving the jury a form of verdict under which both defendants could have been found guilty. The appellate court approved this procedure, holding that there was a jury question as to both defendants. There was no discussion of the fact that the omission of a verdict' form finding both defendants not guilty had the obvious effect of directing a verdict, as in the instant case. Nor was there any discussion of the fact that the court had defaulted in part of its obligation to the jury by leaving it completely uninstructed on this phase of the case. I consider this even less defensible, although the litigation grapevine has it that this procedure is being increasingly followed.
In conclusion, it is my belief that the instruction of which I complain had the definite, albeit somewhat devious, effect of telling the jury that each and every defendant was guilty as a matter of law; that when the jury found two of the five defendants guilty, the instruction compelled that result, but at the same time it could just as well have compelled a guilty verdict as to all five; that this being true, then on the strength of the court’s conclusion in giving the instruction, legal consistency would have dictated that it enter a judgment notwithstanding the verdict as to the other three defendants, which it had no apparent intention of doing and did not do. Assuming, as I do not, that the court in this case could properly have assessed the evidence as “overwhelming” against any defendant, then, in my opinion, the scattershot method of instructing the jury represented a failure of the court to meet its obligation to instruct the jury fully, and particularly to direct a verdict on the basis of the “overwhelming” weight of the evidence, or lack of it, as to each defendant separately — there being no recourse under the Pedrick rule to leave the jury partially uninstructed by lumping the defendants together collectively, unless the same result were directed as to all. My own conclusion is that the Pedrick rule did not permit the directing of a verdict against any defendant in this case, but even if it did, the error in the giving of the instruction in question requires a new trial.
If I am wrong in this conclusion, so be it, but if the instruction is as unfair and legally unsound as I deem it to be, then it would be my hope that the Supreme Court might pass on the question before it becomes solidified into our trial practice through widespread use in the absence of final authoritative direction one way or the other.