Payne v. Murphy Hardware Co.

379 N.E.2d 817, 62 Ill. App. 3d 803, 19 Ill. Dec. 945, 1978 Ill. App. LEXIS 3076
CourtAppellate Court of Illinois
DecidedAugust 2, 1978
Docket77-176
StatusPublished
Cited by6 cases

This text of 379 N.E.2d 817 (Payne v. Murphy Hardware Co.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Payne v. Murphy Hardware Co., 379 N.E.2d 817, 62 Ill. App. 3d 803, 19 Ill. Dec. 945, 1978 Ill. App. LEXIS 3076 (Ill. Ct. App. 1978).

Opinion

Mr. JUSTICE GUILD

delivered the opinion of the court:

On June 2, 1974, plaintiff, William C. Payne, rented a rototiller from defendant, Murphy Hardware Co., Inc., for the purpose of tilling a plot of ground upon which he intended to plant a garden. During the course of the rototilling operation plaintiff fell and injured his back. A jury trial was conducted but at the close of all the evidence the trial court directed a verdict in favor of defendant on the theory that plaintiff was contributorily negligent. Plaintiff appeals, claiming that the trial court erred in the following ways: (1) directing a verdict in favor of defendant; (2) allowing defendant to amend the answer after the close of the evidence; (3) denying plaintiff’s motion to strike an affirmative defense; (4) denying plaintiff leave to amend his complaint after the close of the evidence; and (5) allowing testimony by an alleged expert witness.

We first consider the argument that the trial court should not have allowed one Arnett Munsterman to testify as an expert witness. Essentially, plaintiff’s objections to Munsterman’s testimony are, first, that he had insufficient qualifications to testify as a rototiller expert in this case, and second, that plaintiff was denied his right to preliminary cross-examination before the witness was allowed to testify as an expert. In his reply brief plaintiff also argues that, in addition to testifying as a rototiller expert, Munsterman purported to testify as an expert in physics and gravity and that this examination should not have been allowed. This contention comes too late and is deemed waived because of plaintiff’s failure to raise it at the appropriate time. (Supreme Court Rule 341 (e) (7), 341(g) (Ill. Rev. Stat. 1977, ch. 110A, pars. 341(e)(7), 341(g)); Molnar v. City of Aurora (1976), 38 Ill. App. 3d 580, 348 N.E.2d 262.) With regard to plaintiff’s arguments properly before us on this issue, defendant takes the position that Munsterman was properly qualified as a rototfiler expert, that plaintiff failed to request any preliminary cross-examination, and that even if plaintiff were improperly denied such examination, it was harmless error.

We have examined People v. Sawhill (1921), 299 Ill. 393, 132 N.E. 477, and Auerbach v. Continental Illinois National Bank & Trust Co. (1950), 340 Ill. App. 64, 91 N.E.2d 144, upon which plaintiff relies for his asserted right to preliminary cross-examination. We are extremely doubtful whether these cases do, in fact, establish any such right although they definitely require that objections to the competency of a witness be raised at the earliest practicable time. It is apparent to us that allowing preliminary cross-examination going to the qualifications of an alleged expert witness is oftentimes a salutory practice which will expedite trials and further the objective of affording everyone a fair trial. This fact, however, does not necessarily establish it as a right in all cases.

Assuming for the moment that plaintiff did have a right to cross-examine Munsterman concerning his qualifications as a rototiller expert, we agree with defendant that plaintiff never asserted this alleged right. Although plaintiff objected to Munsterman’s qualifications he never at any time requested cross-examination of this witness prior to the end of the witness’ direct testimony. Thus, we believe that plaintiff waived his alleged right to preliminary cross-examination. We are further of the opinion that Munsterman was qualified to testify as a rototiller expert. He had the equivalent of two years of college in the field of engineering and extensive experience with belt-driven machines. Specifically with regard to rototillers, he had been in the business of renting them for 11 years and had also operated them personally for approximately the same period of time. As plaintiff points out, Munsterman did not purport to testify as a mechanical engineer with regard to rototillers but there is no requirement that all testimony concerning machinery must come from mechanical engineers. Plaintiff also asserts that witness Munsterman had insufficient experience with the particular rototiller involved in this case. The testimony reveals that Munsterman did not normally rent or operate rototillers of the particular brand involved herein. He testified, however, that he had examined this particular machine prior to trial and was familiar with the way it operated. There is nothing whatsoever in the testimony to indicate that the operation of this particular rototiller was so different from that with which he had experience as to render his testimony incompetent. (See Peterson v. Lou Bachrodt Chevrolet Co. (1978), 61 Ill. App. 3d 898.) We believe that the trial court properly concluded that Munsterman had special knowledge in the field of rototillers and that his opinions would assist the jury in reaching a verdict. Plaintiff’s cross-examination revealed nothing which would disqualify witness Munsterman from testifying as an expert and, therefore, any denial of the alleged right to preliminary cross-examination was harmless error.

We turn now to plaintiff’s contention that under Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504, the trial court erred in directing a verdict in favor of defendant at the close of all the evidence. It is to be noted that this case was tried upon the theory that defendant negligently rented the rototiller in question to plaintiff with an enlarged belt. Plaintiff takes the position that this belt came off of one of the pulleys during the rototilling operation, causing the machine and the plaintiff to fall, thus causing plaintiff’s injuries. Preliminarily, we note that the record presented to us contains no medical evidence whatsoever that this fall was the cause of plaintiff’s back injuries. Inasmuch as the parties, however, have not made an issue of this, we decline to discuss it further. Instead, we will focus our attention upon the question of whether plaintiff proved that this belt came off thereby causing his injury, and we will set forth only the testimony relevant to that issue.

Both plaintiff and his wife testified that plaintiff had been rototilling for approximately 10 to 15 minutes in the garden plot before this incident happened. He had rototilled the entire plot one time to a depth of approximately 12 inches. Immediately before this incident, the rototiller dug down into the ground, causing a hole estimated to be 18 inches deep, or 6 inches deeper than the other tilled ground. In order to extricate the machine from this hole, plaintiff testified that he pushed down on the handles of the rototiller and the machine started to crawl out of the hole. The machine was apparently almost out of this hole at the time when both plaintiff and the machine fell both backwards and sideways. Plaintiff testified that the machine started falling backward at him, he attempted to avoid having it fall upon him, and then both he and the machine fell. His wife testified that both plaintiff and the machine fell together. After the fall, the engine on the machine was still running but both plaintiff and his wife testified that the tines were not moving at that time.

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Bluebook (online)
379 N.E.2d 817, 62 Ill. App. 3d 803, 19 Ill. Dec. 945, 1978 Ill. App. LEXIS 3076, Counsel Stack Legal Research, https://law.counselstack.com/opinion/payne-v-murphy-hardware-co-illappct-1978.