The opinion of the court was delivered by: LEVET
OPINION, FINDINGS OF FACT and CONCLUSIONS OF LAW.
This action involves two defendants found jointly liable by a jury for causing injury to the plaintiff. Each defendant is cross-claiming the other alleging that the other defendant was solely responsible for the injury caused to the plaintiff.
I. BACKGROUND OF THE CROSS-COMPLAINTS
On February 23, 1972 a jury returned a verdict for plaintiff Coons on liability against defendants Washington Mirror Works, Inc. ("Washington") and Electric Motors Corp. ("Electric"). On February 29, 1972 the same jury awarded $14,160 for damages to plaintiff Coons against defendants.
Following the jury trial defendant Washington moved to set aside the verdict and dismiss the complaint. Defendant Electric moved for a judgment notwithstanding the verdict or, in the alternative, for declaration of a mistrial. The court in a memorandum of March 28, 1972 denied said motions.
Washington and Electric cross-claimed against each other contending that the other was solely responsible for any liability to plaintiff Coons. On April 12, 1972 Electric moved to dismiss Washington's cross-complaint. This court in a memorandum of May 8, 1972 denied said motion.
Washington and Electric had stipulated that the court would determine the cross-complaints. Hence, by virtue of the memorandum of May 8, 1972, the court decided to proceed in its determination of the cross-complaint of Washington against Electric and the cross-complaint of Electric against Washington.
Since neither defendant in this action requested the opportunity to submit any additional evidence on the cross-complaints and in fact specifically notified the court of their intention not to do so, the court now proceeds to determine the cross-complaints on the original record.
In view of the pending appeals by plaintiff and by both defendants of the jury verdict in this action, Electric on May 24, 1972 moved for an order staying the determination on the cross-complaints of Washington and Electric pending the hearing and determination of the appeals already taken.
In opposition to Electric's motion Washington urged the court to deny the motion and determine the cross-complaints now in order that all issues would be presented to the Circuit Court at the same time. On June 1, 1972 the court held oral argument on Electric's motion to stay determination of the cross-complaints and denied that motion.
Consequently, the court will now determine both cross-complaints of Washington and Electric.
After examining the record of the jury trial, the exhibits, the pleadings and the Proposed Findings of Fact and Conclusions of Law submitted by counsel (on the cross-complaints), this court makes the following Findings of Fact and Conclusions of Law:
1. On February 23, 1972 the court submitted to the jury a special verdict as to liability only. The jury found both Washington and Electric liable.
(A) The jury found Washington liable on the theory of negligence as it answered each of the following two questions of the special verdict in the affirmative:
(1) "Has plaintiff proved by a fair preponderance of the credible evidence that defendant Washington Mirror Works, Inc. was negligent (under the theory of res ipsa loquitur -- or any other negligence) in its operation of and control over the electric hoisting system on the date of the accident. June 11, 1969? Yes.
(2) "Has the plaintiff proved by a fair preponderance of the credible evidence that such negligence of defendant Washington Mirror Works, Inc. was a proximate cause in whole or in part of the accident sustained by plaintiff on June 11, 1969? Yes."
(B) The jury found Electric liable on the theory breach of warranty as it answered each of the following two questions of the special verdict in the affirmative:
(3) "Has plaintiff proved by a fair preponderance of the credible evidence that defendant Electric Motors Corp. constructed or installed a defective hoisting ...