{
  "id": 2785944,
  "name": "Clarence Neuner, Plaintiff-Appellee, v. Schilling Petroleum Company, Inc. et al., Defendants; (Hirth Plumbing and Heating Company, Defendant-Third-Party Plaintiff-Appellant, v. Grinnell Company, Inc. et al., Third-Party Defendants-Appellees; Belleville Supply Company, Third-Party Defendant-Counterclaimant-Appellee, v. Grinnell Company, Inc. et al., Counterdefendants-Appellees.)",
  "name_abbreviation": "Neuner v. Schilling Petroleum Co.",
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  "docket_number": "No. 74-95",
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    "date_added": "2019-08-29",
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    "judges": [],
    "parties": [
      "Clarence Neuner, Plaintiff-Appellee, v. Schilling Petroleum Company, Inc. et al., Defendants.\u2014(Hirth Plumbing and Heating Company, Defendant\u2014Third-Party Plaintiff\u2014Appellant, v. Grinnell Company, Inc. et al., Third-Party Defendants\u2014Appellees; Belleville Supply Company, Third-Party Defendant\u2014Counterclaimant\u2014Appellee, v. Grinnell Company, Inc. et al., Counterdefendants-Appellees.)"
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE GEORGE J. MORAN\ndelivered the opinion of the court:\nDefendant Hirth Plumbing and Heating Company, hereinafter referred to as Hirth, appeals from a judgment of the Circuit Court of St.\nClair County denying defendant\u2019s post-trial motion to vacate the judgment and for summary judgment in its favor or in the alternative for a new trial.\nClarence Neuner, owner of a sporting goods and bait business, filed a complaint against the Schilling Petroleum Company, hereinafter Schilling, and Hirth for damages done to his business when gasoline seeped into his basement and well. Hirth later filed an amended third-party complaint against the third-party defendants, Grinnell Company, Inc., Stanley G. Flagg and Company, Division of Eltra, and Belleville Supply Company. Jury demand was waived. The order of the trial court determined that defendant Hirth was liable to the plaintiff in the amount of $11,-021.83 and found all other defendants without fault. This appeal resulted.\nThe trial court, acting as trier of fact, found that plaintiff\u2019s damages were the result of Hirth\u2019s improper installation of an underground gasoline pipe on the property of Schilling located across the street from plaintiff\u2019s business. Schilling\u2019s property was at the time under lease to a service station operator. The principal issue faced by the trial court was whether the damage-causing leak in a 1%\" elbow fitting was due to a manufacturing defect or rather from overtightening during installation.\nAfter hearing the evidence, the trial judge determined the leak to be the consequence of overtightening.\nHirth contends that the trial court\u2019s adjudging that the leak was due to an improper installation of the gasoline pipe was against the manifest weight of the evidence. We are asked to reverse the lower court or, in the alternative, to grant a new trial.\nHirth argues that plaintiff\u2019s expert witness, Mr. Deppe, based his opinion not on fact but upon surmise or conjecture. The background against which this contention arises discloses that plaintiff took the evidence deposition of Deppe who was given a set of hypothetical facts about the seepage of gasoline and the installation of a 1%\" elbow, and asked if he had an opinion, based upon a reasonable degree of engineering certainty, as to the cause of the gas leakage. After Deppe responded, counsel for defendant objected that the question lacked sufficient ultimate facts, which he then supplied, Deppe indicated that the fitting in question was \u201capparently overtightened.\u201d A further objection was made that by using \u201capparently\u201d Deppe was stating a conclusion not based on any facts. To this Deppe responded that \u201cthe stress failure is the result of an overload factor, and the overload factor appears to have been applied to the use of a pipe wrench on the fitting.\u201d No further objections were voiced. Nor did Hirth\u2019s counsel move that Deppe\u2019s testimony as to overtightening be stricken for lack of sufficient evidentiary support.\nIn Moore v. Jewel Tea Company, 116 Ill.App.2d 109, 253 N.E.2d 636, affirmed, 46 Ill.2d 288, 263 N.E.2d 103, the deposition testimony of an expert was attacked for erroneously including two assumptions without evidentiary support. In that case the court applied the relevant provisions of Supreme Court Rule 211(c) (Ill. Rev. Stat. 1967,. ch. 110A, par. 211(c)) and concluded that objections to the form of questions or admission of testimony are waived if not made at the time of the taking of a deposition. The court went on to say:\n\u201cA party complaining of defects in a hypothetical question or answer must point them out in order to afford the interrogator an opportunity to remedy the defects, if any.\u201d (116 Ill.App.2d 109, 131.)\nFor the following reasons, we\u2019 consider Hirth to be bound by this simple proposition. Although Hirth\u2019s counsel objected, tp the form of the hypothetical, he was allowed to alter it, and Deppe\u2019s response was the same to the hypothetical in its amended, form. As to the objection concerning the evidentiary insufficiency for Deppe\u2019s opinion that the fitting was \u201capparently overtightened,\u201d this also was remedied by reaffirmance. Thus, defendant\u2019s counsel must be seen as acquiescing in the responses to the amended questions. Viewed as such, the objections were insufficient to remove Hirth from the effect of the above-stated rule. Accordingly, defendant Hirth\u2019s objections as to factual insufficiency of Deppe\u2019s conclusions were waived.\nThe next point we consider is whether the evidence was sufficient to sustain the verdict. In approaching the question of sufficiency of evidence, it serves us well to be guided by the following statement:\n\u201cAlthough a trial court\u2019s holding is always subject to review, this court will not disturb a trial court\u2019s finding and substitute its own opinion unless the holding of the trial court is manifestly against the weight of the evidence. (Cases cited.) Underlying this rule is the recognition that, especially where the testimony is contradictory, the trial judge as the trier of fact is in a position superior to a court of review to observe the conduct of the witnesses while testifying, to determine their credibility, and to weigh the evidence and determine the preponderance thereof. We may not overturn a judgment merely because we might disagree with it or might, had we been the trier of facts, have come to a different conclusion.\u201d (Schulenburg v. Signatrol, Inc., 37 Ill.2d 352, 356, 226 N.E.2d 624.)\nHirth argues that the above proposition is not binding on us, since the trial court must have relied solely on the deposition of Deppe in making its determination and we are thus in as good a position for review. This theory presupposes that Deppe\u2019s deposition was the ultimate reason for the decision and seems to ignore that many other witnesses testified during the trial. As to these witnesses, the trial court was clearly in a superior position to observe their demeanor and credibility. This same problem was faced in Karris v. Woodstock, Inc., 19 Ill.App.3d 1, 313 N.E.2d 426, where the court concluded, as we do here, that review of a single deposition provides an insufficient basis on which to substitute judgment where live testimony was also given. A trial court\u2019s ruling will only be disturbed when it is against the manifest weight of the evidence, i.e., where an opposite conclusion is clearly evident. Comm v. Goodman, 6 Ill.App.3d 847, 286 N.E.2d 758; Hulke v. International Manufacturing Co., 14 Ill.App.2d 5, 142 N.E.2d 717.\nIn Hall v. Kirk, 13 Ill.App.3d 656, 300 N.E.2d 600, this court wrote that\n\u201cIn considering the issue of the insufficiency of evidence to sustain a verdict, an appellate court must consider all the evidence in its aspects most favorable to the verdict winner and then must determine that the evidence is so overwhelmingly in favor of the moving party that the verdict should not be permitted to stand.\u201d (13 Ill.App.3d 656, 660.)\nIn light of the contradictory nature of the testimony of the experts relating to complex factual question, and in consideration of various other testimony, we cannot say the trial court\u2019s decision was erroneous by this standard. We believe the judgment of the trial court is supported by substantial evidence and is not against the manifest weight of the evidence. The judgment of the trial court is affirmed.\nJudgment affirmed.\nEBERSPACHER and CARTER, JJ., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE GEORGE J. MORAN"
      }
    ],
    "attorneys": [
      "John F. O\u2019Connell, of O\u2019Connell & Waller, of Belleville, for appellant Hirth Plumbing and Heating Co.",
      "C. E. Heiligenstein, of Belleville, for appellee Clarence Neuner.",
      "Pratt, Kardis & Strawn, Ltd., East Alton (Paul L. Pratt, of counsel), for appellee Stanley G. Flagg and Co."
    ],
    "corrections": "",
    "head_matter": "Clarence Neuner, Plaintiff-Appellee, v. Schilling Petroleum Company, Inc. et al., Defendants.\u2014(Hirth Plumbing and Heating Company, Defendant\u2014Third-Party Plaintiff\u2014Appellant, v. Grinnell Company, Inc. et al., Third-Party Defendants\u2014Appellees; Belleville Supply Company, Third-Party Defendant\u2014Counterclaimant\u2014Appellee, v. Grinnell Company, Inc. et al., Counterdefendants-Appellees.)\n(No. 74-95;\nFifth District\nFebruary 25, 1975.\nJohn F. O\u2019Connell, of O\u2019Connell & Waller, of Belleville, for appellant Hirth Plumbing and Heating Co.\nC. E. Heiligenstein, of Belleville, for appellee Clarence Neuner.\nPratt, Kardis & Strawn, Ltd., East Alton (Paul L. Pratt, of counsel), for appellee Stanley G. Flagg and Co."
  },
  "file_name": "0148-01",
  "first_page_order": 174,
  "last_page_order": 177
}