dissenting:
I must dissent for two reasons.
Firstly, I believe the majority is in error in reversing the judgment of the trial court without remandment for a new trial. The majority opinion holds that the court erred in permitting Fred Schwartz to testify for the plaintiff as an expert witness and that without the testimony of Schwartz, there was no probative evidence to support the judgment. To reverse without remanding is to deny plaintiff the opportunity to prove his case without the testimony of Schwartz. The courts of this State have long held:
“Where, in a jury trial, the trial court commits an error of law pertaining to the admission of evidence which requires a reversal of the judgment, the Appellate Court, upon reversal, must remand for a new trial, unless it appears from the record that the error cannot be obviated upon another trial. Dixon v. Smith-Wallace Shoe Co.,., 283 Ill. 234, 239, 119 N.E. 265; Abdill v. Abdill, 292 Ill. 231, 232, 126 N.E. 543; Frey v. City of Chicago, 330 Ill. 640, 642, 162 N.E. 139.” (McCottrell v. Benson (1961), 32 Ill. App. 2d 367, 370,178 N.E.2d 144,145.)
Accordingly, if I were to agree that the trial court erred, I would remand for a new trial.
Secondly, I believe Schwartz was more than sufficiently qualified to testify as an expert, and that his testimony was properly admitted. In addition, I disagree with the majority’s observation that reversible error occurred when two jurors observed some gasoline cans in a store window. Finally, I have concluded that none of the other errors urged by defendants require reversal of the judgment.
Initially, I would note that Schwartz was extensively examined regarding his professional background before he was allowed to testify as to his expert opinion concerning the issues in this case. Virtually his entire career had been devoted to product development and design responsibilities of containers and equipment involving combustible fuels. He holds numerous patents relating to such containers, and has worked in private industry and with trade organizations in developing standards for storage, refueling, and transporting gasoline in both the aircraft industry and the railroad industry. For the last 12 years he has been self-employed as an engineering consultant, and about 25 to 30 percent of his work has been the investigation of tank car accidents involving fires. All of these elements of Schwartz’ background are related to the safe containment of gasoline and other hazardous substances, thereby justifying the trial court’s conclusion that his experience qualified him sufficiently to testify as an expert in this case.
The test for the admissibility of expert testimony has been held to be whether “the witnesses offered as experts have peculiar knowledge or experience not common to the world, which renders their opinions founded on such knowledge or experience an aid to the court or jury in determining the question at issue.” (Merchants National Bank v. Elgin, Joliet & Eastern Ry. Co. (1971), 49 Ill. 2d 118, 121, 273 N.E.2d 809, 811.) I believe Schwartz had such “peculiar knowledge or experience” and was properly permitted to testify. The weight to be given the testimony was, of course, a question for the jury. It has been well stated:
“The testimony of experts must be judged by the same rules of weight and credibility which are applied to other witnesses, and the weight and value of the testimony largely depends on the foundations of fact and reason upon which the opinions stand.” Cannell v. State Farm Fire & Casualty Co. (1975), 25 Ill. App. 3d 907, 912, 323 N.E.2d 418, 422.
In Nowakowski v. Hoppe Tire Co. (1976), 39 Ill. App. 3d 155, 349 N.E.2d 578, a tire mechanic with 18 years experience inspecting and mounting tires was allowed to express an expert opinion as to the cause of the explosion of a truck tire which blew up while being mounted. The reviewing court found no error and stated:
“The knowledge required to qualify one as an expert may be obtained from study or experience, or a combination of both [citation], and whether a witness qualifies as an expert is a matter within the sound discretion of the trial court. [Citation.] [The witness] had been employed as a tire mechanic for some 18 years and had inspected and mounted thousands of tires. The trial court reasonably concluded that this extensive experience gave him special knowledge not shared by the average juror.” 39 Ill. App. 3d 155,163, 349 N.E.2d 578, 585-86.
It is undisputed that Schwartz was experienced in product development and design of large containers of gasoline and other hazardous substances. He has had a distinguished career and served in a variety of responsible positions in several companies before becoming self-employed. During the last 12 years he has spent a substantial amount of time investigating accidents involving gasoline explosions and fires. His lack of familiarity with the manufacturing process of two-gallon cans did not affect his qualification in the general field of containment of gasoline in my opinion.
The view of the majority opinion seems to be that an expert can testify only in the narrow area where he has been previously employed, regardless of the relevance of one area of science or trade to another. In other words, the majority says that expertise in designing railroad tank cars and aircraft fuel equipment does not qualify a witness in the field of two-gallon gasoline cans. This ignores the fact that Schwartz possessed extensive expertise about the properties of gasoline and other combustibles, and the fact that the basic principles of safety in handling gasoline are the same whether you are storing 2 gallons or 2,000 gallons. His scientific and technical study and experience alone were, in my view, sufficient to permit him to testify as an expert about the design of gasoline containers of any size — large, small, and in-between. Any special requirements unique to small containers would be factors to be considered by the jury in determining the weight to be given his testimony and would not render his testimony inadmissible.
It should also be noted that, even where it is error to refuse to allow cross-examination of an expert witness as to his qualifications before he begins to testify to expert opinions, such error has been held to be harmless where subsequent extensive cross-examination is allowed. (See Geving v. Fitzpatrick (1978), 56 Ill. App. 3d 206, 371 N.E.2d 1228.) The cross-examination in this case was extensive, and the background and experience of Schwartz was thoroughly examined. Consequently, even if it were error to deny defendants a chance to conduct a voir dire examination of Schwartz, such error would have been harmless.
Defendants also assert that reversible error occurred when the jury improperly considered information not in evidence and that such evidence was related to the issue of liability. According to affidavits in the record, two women members of the jury noticed a display of gasoline cans in a store window while walking past the store during a noon recess in the trial. Both women noticed some solder droplets on the tops of the display cans around the necks of the cans, and both noticed that the presence of solder was similar to that on some of the cans admitted into evidence. The observation of the drops of solder on these cans was mentioned by the women during the jury deliberations. In addition, one of the women who saw the display of gasoline cans also purchased a similar can for her own use, at another time, during trial.
The jury verdict was returned on September 25, 1980, and during October and November of 1980, defendants obtained affidavits from four jurors stating that some members of the jury had inspected other gasoline cans for the purpose of determining whether there was solder on the threads of the necks of the cans. Defendants filed these affidavits in this cause. Later, nine of the jurors, including the four who had previously given affidavits, signed more detailed affidavits indicating that the view of cans by two jurors had been accidental, that the jurors had observed solder drops on the tops of the cans rather than on the threads, that these observations were mentioned to the jury but did not affect or influence the decision of the jury. These latter affidavits were submitted to the court by plaintiff in support of the verdict and judgment.
It should be noted that one of the factual issues before the jury was the origin of the drop of solder visible on the threads of the neck of the can which had been involved in the fire. It was agreed by the expert witnesses that the drop of solder would prevent the cap from closing tightly or sealing the can. Plaintiff’s theory was that the drop of solder adhered to the threads during the manufacturing process, while defendants insisted that it originated in the fire. Apparently solder will melt during a fire of this type, and defendants theorized that the solder ran along the neck of the can and under the cap along the threads where it solidified. The neck and the handle of the can were separate components also attached by solder to the can during the manufacturing process. During the trial, plaintiff introduced into evidence the can which had been kicked by Sam Broussard. The neck was still attached. Defendants introduced a number of other gasoline cans, several of identical design, manufactured by various companies. All but one such cans of the Type F style have drops of solder clearly visible on the top of the can in the area where the neck is attached.
The trial court ruled that the viewing of cans by the jurors was inadvertent and not for investigatory purposes and that defendants had failed to show the probability of prejudice to them as a result and for those reasons the court denied that part of the defendants post-trial motion alleging jury misconduct or extraneous influence.
I believe the trial court erred to the extent it may have considered the test to be whether the jurors’ view of extraneous evidence was inadvertent or not. The purposefulness of the examination of the window display of gas cans is immaterial in view of the affidavits of the two jurors that they did in fact see solder droplets on the tops of the new cans and that they did discuss their observations during the jury deliberations. At first blush, this situation would seem to be the one that would require a reversal since the rule in Illinois is that any extraneous information in the nature of evidence upon an issue in the case brought to the jury’s attention is grounds for reversal, and neither the trial court nor the reviewing court should delve into the exact effect of unauthorized evidence upon a particular juror. (Heaver v. Ward (1979), 68 Ill. App. 3d 236, 386 N.E.2d 134.) However, it has also been held that it must be apparent that there is such a probability of prejudice resulting that due process would be inherently lacking before reversal is required. (People v. Mills (1968), 40 Ill. 2d 4, 237 N.E.2d 697; People v. Holmes (1978), 69 Ill. 2d 507, 372 N.E.2d 656; United States ex rel. Tobe v. Bensinger (7th Cir. 1974), 492 F.2d 232, 237.) Thus it is appropriate to test the trial court’s ruling as to whether viewing the store display of gas cans and noting solder drops thereon could be prejudicial to defendants’ case.
Parenthetically it must be stated that the statements of the jurors in their affidavits that they were not influenced by the report of solder drops on other cans cannot properly be considered. One rule is clear: where a juror attempts to prove by affidavit or testimony the motive, method or process by which the jury reached its verdict, the testimony is inadmissible. (Holmes.) Thus, we should ignore the improper statements in the affidavits.
What cannot be ignored is that a total of six new F style gasoline cans were introduced into evidence (one by plaintiff and five by defendant Huffy) and all but one have droplets or solder plainly visible on the top where the neck is attached and on the tops generally. Thus, the observations of the two jurors were plainly cumulative of defendants own evidence as well as that of plaintiff. Furthermore, the fact that the necks were soldered to the tops was not a disputed issue in the case. All parties agreed to that. The factual question confronting the jury was how a drop of solder came to be deposited on the threads of plaintiff’s exhibit No. 32 (the can involved in the fire). I do not comprehend how the jurors’ view of some additional gasoline cans that possessed the same characteristics as those in evidence could have affected their determination of that question. For that reason, I would agree with the trial court that there was not such a “ ‘probability that prejudice will result’ ” (People v. Holmes (1978), 69 Ill. 2d 507, 516, 372 N.E.2d 656, 660) as to affect the outcome of this case. Thus, I would find the jurors’ view of gasoline cans in a store window to have been harmless.
Another error asserted by defendants involved the testimony of Deputy State Fire Marshall Dwight Elliott who testified on behalf of plaintiff concerning State standards for gasoline containers. Elliott stated that his office had the authority to regulate storage, transportation, and use of gasoline and other flammable liquids and that the Fire Marshall can regulate the sale and dispensing of gasoline containers. Elliott then stated that before a can will be approved for sale and distribution, it must have a spring-loaded closure, a flame-arresting screen, and other requirements of a safety nature. He stated unequivocally that the can in question (plaintiff’s exhibit No. 32) had not been approved for sale by the State Fire Marshall, and he further stated that the Fire Marshall has a right to control and enforce the regulations as they apply to retailers. (This evidence was admitted as applying only to defendant Huffman Manufacturing Co., the manufacturer of the can, and not the other defendants.) During the course of this testimony the trial court denied numerous motions to strike and for mistrial as defendant repeatedly asserted that no such regulations had ever been made or published and that the Fire Marshall had no such authority under applicable statutes. The court at one point noted that it might be a question of fact whether such a rule exists and that, if no such rule is produced, he would entertain a motion to strike.
Upon cross-examination Elliott referred only to the rule requiring persons storing gasoline in cellars, basements and pits to use approved safety containers. The phrase “approved safety containers” he said, had been interpreted to mean containers meeting certain UL specifications and was a standardized term.
At the conclusion of Elliott’s testimony, no written rule of the Fire Marshall had been produced, as promised by the plaintiff’s counsel, which would have prevented defendant Huffman from lawfully selling its Type F gasoline cans in Illinois. The next day, after Schwartz testified to the meaning of safety type gasoline cans and to his understanding of the State regulations, the trial court ruled that Elliott’s testimony should be striken. At a later point in the trial, the court instructed the jury to disregard Elliott’s testimony.
On appeal, defendants argue that the testimony was so prejudicial that the error could not be cured by a mere instruction to the jury to disregard.
Defendants have placed in the record a post-trial affidavit by a psychologist stating that he had read the record and that such testimony must have influenced the jury. Plaintiff countered with affidavits by several jurors indicating that they did not discuss or consider Elliott’s testimony. All such affidavits are improper and will not be considered by trial courts or reviewing courts in Illinois because they purport to describe the mental process of the jury in reaching its decision. As indicated in Holmes and other cases cited above, such affidavits are inadmissible.
The effect of Elliott’s testimony in the course of a lengthy trial is a matter for the discretion of the trial court, since the court is in a better position to determine whether a fair trial has been held and whether substantial justice has been done. A reviewing court will reverse on the basis of improperly admitted evidence which was ordered stricken only where there was some great abuse of discretion. (Fitzsimons v. National Tea Co. (1961), 29 Ill. App. 2d 306, 173 N.E.2d 534; Hunter, Trial Handbook for Illinois Lawyers sec. 78.3 (4th ed. 1972).) Considering the confusing nature of Elliott’s testimony, the length of the trial, and the trial judge’s superior position to determine prejudice, I would not say there was clearly “some great abuse of discretion” here. Rather I would join the trial judge and find any error to have been cured by the instruction to disregard Elliott’s evidence.
Defendants also contend that other erroneous rulings of the trial court deprived them of a fair trial and require a reversal of the judgment. The rulings claimed to be error are as follows:
1. Allowing Schwartz to express expert opinions on matters of common knowledge, such as the stability of the container, adequacy of threading on the neck, the danger of allowing solder to accumulate on the neck, and the tendency of the can to leak when the cap was not tight. Schwartz discussed these characteristics in terms of design criteria.
2. Refusing to allow Bambenek (defendants’ expert engineer) to testify to the cause of the second and third degree burns on plaintiff’s arms and neck.
3. Plaintiff’s attorney mentioned in closing argument that he would not have been able to present evidence of other claims in response to defendants’ argument that millions of these cans have been sold and that plaintiff had no evidence of any other cases. Defendants’ objection was sustained.
4. Other instances that occurred where objections were sustained but plaintiff’s counsel tried to obtain the same information with reworded questions.
5. Plaintiff’s attorney referred to the number of times defendants’ expert witnesses had testified in other trials.
6. Plaintiff’s counsel argued with the court over rulings.
7. Plaintiff’s lawyer cross-examined Bambenek on his past employment by insurance companies to investigate accidents after the witness first mentioned such employment on direct examination.
8. Admitting evidence to impeach witness LoPresti who had been a hospital roommate of plaintiff, and whose evidence deposition was introduced at trial.
In my view, none of these challenged rulings amounted to reversible error, and accordingly, they need not be discussed in this dissenting opinion.
Defendants also assert that the verdict was contrary to the manifest weight of the evidence. This argument is predicated upon the theory that the expert testimony of Schwartz was not probative and should not have been considered, or, in the alternative, that defendants’ experts were so much more qualified than plaintiff’s expert that defendants’ evidence was entitled to more weight. As indicated above, I do not agree with this view of the testimony of Schwartz.
Defendants also argue that the physical evidence indicates the improbability of the accident occurring as plaintiff testified. Whether the can was defective and unreasonably dangerous for its intended use was, it seems to me, clearly a factual issue for the jury to resolve on the basis of the evidence before it. I find the testimony of Schwartz to have been admissible, and I also find that his testimony was sufficient to support a finding that the gasoline can was unreasonably dangerous.
Defendants insist that the uncontroverted evidence established that a spark from friction could not have been the source of ignition. In doing so, they ignore the fact that one of their own expert witnesses, Robert Bambenek, stated on direct examination that it was possible that the fire resulted from plaintiff kicking the can, although in his opinion it could not have happened that way. Furthermore, Bambenek based his opinion upon the fact that the tin-plating on the can was a soft metal that would not spark when rubbed against concrete. He went on to say:
“On the other hand, if it is kicked a sufficient distance, it is theoretically possible the lead or tin coating could be worn off.”
He went on to say that he thought the garage was too cluttered for the can to have been kicked a sufficient distance to create such a spark. The following day, Bambenek was questioned on cross-examination as follows:
“Q. I believe you did tell me yesterday that, in your opinion, it was possible for a spark to have been the ignition source in this event, is that correct?
A. Theoretically based on energy considerations, it’s possible.”
Bambenek ruled out an ignition source more than two feet above the can, and specifically eliminated a light switch as a possible cause of a spark. He also stated that a spark from the floor was not a possible source because the gasoline and air mixture would be too rich at floor level. These statements seem to be somewhat at odds with his other statements that a spark from the can or other source was a possibility. ■
I have examined the can in question, and from the scratched and scraped and rusted condition of the can, I believe the jury could have found that the tin plating was worn off and that the steel caused a spark which ignited the gasoline as it was spilling.
Other evidence must have weighed in plaintiff’s favor. For example, several safety-type cans were placed in evidence which had safety features such as greater stability, heavier metal, safety closures, etc. Thus, defendants knew how to produce a safer can. Additionally, defendants’ evidence indicated that the F-style can body was also sold to the food industry for salad oil and shortening, and that the twist-on cap was not in fact designed for use on gasoline cans.
Defendants sought to impeach plaintiff’s testimony by the deposition of a former hospital roommate who indicated that plaintiff had told him he had dropped a match into the can. On its face, this version of the ignition source contradicts statements of defendants’ experts that the cap was on the can during the fire. Furthermore, the possibility that other objects capable of sparking were present on the garage floor was never ruled out.
I do not find the testimony of defendants’ experts so overwhelmingly convincing that a contrary verdict could never stand (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504), and consequently I cannot say that the verdict was wrong as a matter of law, or that it was contrary to the manifest weight of the evidence. In fact, the testimony of defendants’ experts explaining how a drop of molten solder could run sideways along the neck of the tipped-over can under the cap and solidify on the threads of the neck of the can during the fire seems so improbable as to invite the jury to reject it, given the fact that the soldered neck remained attached.
For the reasons stated, I would affirm the verdict and judgment of the trial court.