dissenting:
I respectfully dissent to the holding pertaining to the defendant, Kamin Die Casting & Manufacturing Company, a corporation. I agree the defendant, Employers Mutual Liability Insurance Company of Wisconsin, a corporation, was properly dismissed.
As to Kamin, the record shows a written tender was made to Kamin by Sears Roebuck & Company and Zurich Insurance Company, its insurer, and to Employers Mutual Liability Insurance Company of Wisconsin, insurer of Kamin, to take over the defense of Sears in the Alabama case. Kamin s answer to the complaint admits written tender and its refusal to defend.
The majority opinion says the Alabama suit did not establish the immediate or the ultimate responsibility of Kamin. I think the record is clear that the liability of Kamin was established in the Alabama case. The defendant Kamin here admitted the gravamen of the Alabama suit was that the wheel manufactured by the defendant Kamin was defective and unfit for the use for which it was intended. The plaintiff in the Alabama case recovered a judgment against Sears for $17,500, affirmed by the Alabama Supreme Court (1962), 273 Ala. 218, 136 So.2d 883. In its opinion, the Alabama Supreme Court said:
“This is a so-called products liability’ case, based on negligence, which appellee brought against Sears, Billy Joe Grogan and XYZ, to recover damages for personal injuries received by him when a metal wheel on a boat trailer ‘split, disintegrated, and flew apart’ while appellee was inflating the innertube in the tire on the wheel at the service station where he was employed.
The defendant XYZ was stricken as a party by appellee.”
After discussing the facts and the law applicable, the court said:
“There is ample evidence from which the jury could have found that the design of the wheel rendered it defective so as to make it imminently dangerous to one reasonably expected to work with it in so arranging the alignment of the bolt holes that the two halves could be bolted together without the projections’' being aligned with the ‘depressions.’ Certainly, it should reasonably have been anticipated that the wheel would have to be taken apart and reassembled in connection with the normal and customary use of the trailer, that is, in changing or repairing the tire and tube mounted on the wheel. There is evidence supporting findings that when the projections’ are not aligned with the ‘depressions’ there is left an air space between the two halves of the wheel; that the fracture of the wheel resulted from the pressure in tightening the bolts, thereby causing the projections’ to be forced against the flat surfaces of the two halves rather than being inserted in the ‘depressions’; that the halves of the wheel were fractured in the reassembling process; and that, in such condition, the pressure of tibe air placed in the tire caused the explosion.”
It is therefore quite apparent the Morris complaint in Alabama alleged the wheel on the trailer purchased from Sears was defective and unfit for its intended purpose, and the jury so found. Kamin is the undisputed manufacturer and supplier of that wheel. Breach of express or implied warranties has been held to support indemnity in products liability cases by the parties within the distributive chain. (Suvada v. White Motor Co. (1965), 32 Ill.2d 612.) A person who may be liable as an indemnitor, having been given notice and an opportunity to defend an action but refuses to do so, is bound by the result of the primary action and is estopped from questioning the liability or the amount of damages. The United States Supreme Court in City of Chicago v. Robbins, 67 U.S. 418, holds that express notice to the defendant to defend the prior suit was not necessary in order to render him hable to the corporation for the amount of the judgment paid to the injured party; that if he knew that the suit was pending and could have defended it, he was concluded by the judgment as to the amount of the damages. Again, the United States Supreme Court held in Robbins v. City of Chicago, 71 U.S. 657, that all who are directly interested in the suit and have knowledge of its pendency and who refuse or neglect to appear and avail themselves of those rights are concluded by the proceedings, thus adhering to the rule settled in City of Chicago v. Robbins, 67 U.S. 418.
A similar result obtained in Washington Gas Light Co. v. District of Columbia, 161 U.S. 316, referring to both Chicago v. Robbins, supra, and Robbins v. Chicago, supra. The Illinois Supreme Court is in agreement with these principles. (Drennan v. Runn (1888), 124 Ill. 175.) In Meyer v. Purcell (1905), 214 Ill. 62, the court said:
“Where a person is responsible over to another and he is notified of the pendency of a suit involving the subject matter of the indemnity, his liability will be fixed and determined by the judgment rendered therein.”
There is a long list of Illinois cases, all to the effect that the indemnitor is estopped by facts litigated in the primary action if he had notice and an opportunity to defend the primary action. (City of Canton v. Torrance (1909), 151 Ill.App. 129; City of Bloomington v. Roush (1883), 13 Ill.App. 339; Todd v. City of Chicago (1886), 18 Ill.App. 565; Palmer House v. Otto (1952), 347 Ill.App. 198, to mention a few.) This is the overwhelming weight of authority in other jurisdictions. There are many good reasons for this rule, one of which is to prevent an indemnitor from sitting idly by and awaiting the outcome of the primary case. If the primary case is lost, then the indemnitor could demand a second trial on the merits and try it all over again just as in the instant case. That is obviously wrong. It not only causes multiple suits on the same issues, but it affords the indemnitor an opportunity to refuse a possible settlement because he has two chances to escape, when in fact his liability was established in the primary action. There are so many third-party indemnity actions now pending in this circuit that the majority opinion here would bring about a chaotic condition by encouraging thud-party indemnitors not to participate in the primary action and not to settle, but to wait for a second chance, if necessary. This would also violate the spirit of the Civil Practice Act, wherein third parties can be joined, such as the manufacturer of the wheel. It is quite apparent to me that joining the manufacturer either as principal or third party would cause the manufacturer to seek a separate trial, even though the facts pertaining to his liability might be tried in the primary action. This sort of manipulation we must not permit. In my opinion the law is well settled that the defendant here, ICamin Die Casting & Manufacturing Company, having had due notice and an opportunity to participate in the Alabama court, and having refused to do so even though the gravamen of the action was its defective product, is bound by the result.
I also wish to note the trial judge in the instant case in rendering his opinion stated that Sears might have brought a suit against Dunbar Kapple, who assembled the trailer, but that Sears by-passed Dunbar Kapple and went after ICamin. It is the right and privilege of the seller of a product to by-pass a distributor or an assembler and look directly to the manufacturer of the defective product. The seller is not required to take one step at a time, namely back to its distributor, back to the assembler, and then back to the manufacturer, as the trial judge seemed to think. The trial judge then proceeded to talk about the liability being on the part of Dunbar Kapple, who were the assemblers of the trailer. He then found in favor of Kamin and against Sears, which I believe is error, not only on the facts which were determined in tire Alabama case, but on the law which estopped him from hearing the merits.
It follows that a summary judgment should have been entered on behalf of Sears, against Kamin, for the amount of the judgment entered in Alabama, namely $17,500. It was stipulated here in the trial court that the expenses to defend that case were $2,500; that the judgment, interest and costs paid by Sears were $22,663.90; that additional fees and costs of the appeal to the Alabama Supreme Court were $3,352.64, making a total of $28,516.54, and judgment should have been entered for Sears in that amount.