*1 KNOX, al., JR., B. tiffs-Appellants, et Plain v. NORTH AMERICAN JOHNNIE CORPORATION, CAR Defendant-Appellee. (3rd Division)
First District No. 78-1114 Opinion January filed SIMON, J., specially concurring.
RIZZI, J., dissenting. Associates, Chicago, Ring & for Ring, M. M. of
Leonard of Leonard appellants. Brinton, Wildman, Harrold, Dixon, (Howard Chicago T. Miles of Allen J. Serwer,
Zaremski, counsel), appellee. D. for and William of the court: opinion Mr. McNAMARA delivered JUSTICE Peavy B. 2, 1977, Knox and Irene February plaintiffs, On Johnnie defendant, Knox, North American complaint against filed a two-count injuries allegedly sought damages Car Plaintiffs for Corporation. the Uniform implied warranty under resulting from a breach of par. ch. U.C.C.) (Ill. Stat. (hereinafter Rev. Commercial Code I, injuries sought damages for Knox seq.). 1—101 et count Johnnie Louisiana, Orleans, on in New sustained in an accident which occurred II, loss of sought damages Knox 1973. In count Irene November strike and dismiss filed a motion to husband’s consortium. Defendant her statute of barred ground that was plaintiff’s complaint on the motion, plaintiffs and granted defendant’s limitations. The trial court facts. following well-pleaded reflect the appeal. pleadings having principal place corporation is a Delaware Defendant and to various railroads It leases boxcars Chicago, business in Illinois. 1,1966, rail. On March commodities engaged shipping corporations Corporation, Hershey Foods a boxcar to North American leased plaintiff’s time of at the which lease was effect corporation, Delaware informing defendant under the lease consisted injury. Hershey’s duties type boxcar, loading, dates of the movement of routing. final destination the boxcar’s shipped, and commodities information with all other defendant provide Hershey required was companies or various railroad from the concerning the boxcar received railroad from all charge mileage Defendant received other sources. companies which used the provided boxcar. The lease that defendant would pay for the repair maintenance and Hershey boxcar. was allowed to only make running repairs unless it obtained defendant’s written Repairs consent. to the floor of the boxcar would not fall under category running repairs. (cid:127) 30,1973, May On defendant was Hershey notified that the floor of the boxcar damaged was and in of repair. Reading need Railroad Company delivered the boxcar Hershey on At that October time, there was still a hole in damaged the floor of the boxcar. In its condition, the boxcar by Hershey was loaded employees consigned to the Great Atlantic & Orleans, Pacific Tea Company New Louisiana. Knox, Plaintiff a Louisiana resident and an A&P employee, was Johnnie injured 13,1973, on November when a wheel of the forklift truck he was driving into the boxcar fell into the hole the floor. On November 1973, the boxcar repaired.
Plaintiff’s suit was based provisions on several of the U.C.C. requesting recovery U.C.C., under the plaintiffs sought protection four-year statute of limitations applicable to breaches an implied warranty. Rev. Stat. 725(1).) sought Plaintiff qualify as third-party beneficiary an implied warranty under sections U.C.C., and 2—318 of the provide: which Implied Warranty: “§2 Fitness for Particular Purpose. —315. Where the seller at the contracting time of has reason to know *3 particular purpose for which the goods required are and that the buyer is relying on the seller’s skill or judgment to select furnish or ° ° ° goods, suitable there is unless excluded or modified an implied warranty that goods shall fit purpose.” for such Party Third “§2 Beneficiaries of Express Warranties or —318. Implied.
A seller’s warranty express or implied extends to natural person who is in family or household of buyer his guest who is a in his if it home expect reasonable to that such use, person may by consume or be affected goods and who is injured person by warranty. breach of the A seller 1977, exclude or limit operation of this Section.” Stat. Rev. 26, 315, ch. pars. 2—318.
Defendant’s motion plaintiffs’ to dismiss complaint alleged their cause of action was barred the statute of limitations. Defendant action, maintained that Louisiana law present controlled the and the period of limitation for involving personal actions injuries Louisiana year. (La. Code, 3536, one Civil (West arts. 3537 1973).) Defendant that, argued controlled, even if Illinois law the statute of limitations for 686 83, 1977, years. actions in Illinois is two Rev. Stat.
personal
injury
four-year
period
It
maintained
that
limitations
further
U.C.C. was
provided
inapplicable.
for
jurisdiction matter and its
The trial court held that Illinois had
of business here.
governed
principal place
law
since
had its
defendant
ruled, however,
the case
inapplicable
The court
that
the U.C.C. was
provisions
within
because the
transaction was not a sale
lease
proper beneficiary
under
plaintiff
section 2—315 and because
was not
therefore,
found,
four-year period
that since the
section 2—318. The court
plaintiffs’
2
of action
inapplicable,
of limitations
in article was
cause
found
injuries
statutory two-year period.
was barred
initially
finding
Plaintiffs
that
trial
that
contend
court erred
2
here.
inapplicable
article
of the U.C.C. was
to the lease transaction
E.
v.
Home
Citing Walter Heller & Co. Convalescent
(1977), 49 Ill. App.
joined
has
plaintiffs
3d
maintain
Illinois
jurisdictions
apply
provisions
which
of article
growing number of
Heller,
lease of
involving
equipment
lease transactions.
a matter
against
the lessor’s action for rental
computers,
lessee defended
warranties of
payments
ground
on the
the lessor had breached the
imposed by article
merchantability
particular purpose
and fitness for a
toto
to lease
applied
2 should not be
This court held that article
ruled, however,
aspects of those sections
transactions.
It
that certain
The Heller
court
applied by analogy.
with warranties
could be
dealing
article 2 to
page
analogize
provisions
at
219:
will
stated
“[W]e
same considerations
equipment
only
leases
when the case involves the
rebutted
gave
provisions
analogy
and the
is not
which
rise to the Code’s
v. Pioneer
Sawyer
case.” See also
specific
circumstances
W.E.
Leasing
Corp.
Ark.
428 S.W.2d
(1968), 244
Johnson
Airlines,
Glenn
98;
Inc.
Equipment Co. v. United
(Fla. 1970), 238 S. 2d
Construction,
Galey
216, 541
v.
Inc.
Equipment
Dick
(1975), 97
Idaho
Transportation
v.
Credit
Leasing Corp.
Hertz Commercial
1184;
P.2d
rev'd on
House,
Clearing
Inc.
N.Y.S.
(1969), 59 Misc. 2d
grounds
910,
687 778, rev'd 50 (1975), grounds on other Misc.2d N.Y.S.2d N.Y.S.2d App. Div. 2d Heller, believe the We in and we principles adhere to the enunciated is the by analogy application provisons of article leases selected may prevalent as approach. Although most be as well-reasoned leases world, transaction. type sales in the are a distinct they commercial Leases differ from sales in the area risk of loss and significantly directly repair. apply duties maintenance and A refusal to article 2 in particularly toto to leases avoids in which language the situation interpretation in a to sales must suffer strained order to cover 301, 3—312, 2— (See Ill. pars. lease transaction. Stat. Rev. 401.) We thus must present examine the lease transaction to determine whether impliedly defendant warranted that the be fit for boxcar would particular and, so, purpose under if plaintiff, Knox, falls within such third-party the class of the beneficiaries of Johnnie warranty under section 2—318. rely
Plaintiffs primarily upon Berry v. G. D. Searle & Co. propositions for the that the transaction present case carried implied warranty with an under section 2—315 and Knox qualifies a beneficiary as the warranty under section Johnnie 2—318. In Berry, plaintiff sought damages injuries as a result sustained of ingesting contraceptive an oral by defendant. Our manufactured supreme court held that contraceptive the sale of the carried with it an implied warranty under section 2—315. It was further held that even though privity defendant, there was no plaintiff contract between manufacturer, plaintiff remote qualified beneficiary nevertheless as a the warranty since section 2—318 was neutral on the of the question necessity privity parties between in the distributive and the chain requirement of privity, the context of liability, tort had abolished. been Berry distinguishable, first, because the transaction there was a sale of goods governed contrast, directly by article 2. we have held that since lease, present case involves a provisions of article 2 applicable, are appropriate, only where by analogy. Secondly, plaintiff Berry was a purchaser privity and was thus in vertical Conversely, manufacturer. Knox not party the distributive Johnnie chain, but stands in privity horizontal to defendant. As shall we discuss fully, more section 2—318 sets a definite limit on a seller’s liability to one who stands in privity, horizontal a limitation with which Berry the court in was not concerned. We do not Berry believe controls disposition this matter. view,
In our well-pleaded facts contained count complaint support the conclusion that impliedly defendant warranted *5 products Hershey, its shipping the boxcar would be fit for the
lessee. arrangement placed The lease the duties of maintenance and repair upon Hershey permitted only “running defendant. to make repairs.” Hershey, Thus is even than in a sale evident more so situation, upon to which undertaking provide relied defendant’s boxcar contemplated parties was safe and to the purpose suitable for the an rise undertaking part gives lease. Such on the of the lessor to defendant implied warranty analogous a contractual of fitness to that to E. Heller Co. Convalescent See Walter v. sales under section 2—315.
Home. decided,
Having we must Knox so address the issue whether Johnnie 318, beneficiary qualify, third-party can under section as a 2— Plaintiffs Knox does implied warranty. defendant’s concede that Johnnie fall 2—318 which includes as language not within the literal of section in person family is or household of his “any beneficiaries natural who 0 * in Plaintiffs, however, point to buyer guest who is a his home or 2— Uniform Code to section subsection of the Commercial Comment 318 which states:
“This within its expressly section includes as beneficiaries household, family, guests purchaser. of the provisions this, enlarge to or Beyond section neutral and not intended warranties, on the seller’s developing restrict case law whether resells, in persons his other given buyer who extend to Stat., Uniform Ann. distributive chain.” 2— Comment, (Smith-Hurd 1963).) at 265 Commercial Code part language manifests intent on Plaintiffs maintain that 2—318 protection section to enable a court to extend the draftees Plaintiffs specifically enumerated therein. beyond persons the classes under section argue further that a similar result should be reached in non- any requirement privity language because notwithstanding (Buehler v. Whalen (1977), 70 in Illinois. been abolished Code cases has Co. Genaust Illinois Power 460; (1974), 23 Ill. 2d 374 N.E.2d Ill. Ill. 343 N.E.2d (1976) 320 N.E.2d 2d App. 3d aff'd v. White Motor We 182.) Suvada do agree. not misinterpreted the thrust plaintiffs have
Initially, we believe 2—318. 2—318 defines Section above-quoted comment section who stand from warranties persons entitled benefit classes of last privity) to the (as to “vertical” opposed privity “horizontal” lessee, case, chain. in the distributive present or purchaser, sense, who uses person includes in its broadest privity “Horizontal” parties up the distributive includes all product. privity “Vertical” Corp. v. Control (Omaha Pollution the immediate seller chain from F. Since section (D. Supp. Neb. Carver-Greenfield privity, liability of a under that 318 does address itself to vertical seller privity may section to those who stand vertical co-extensive words, 2—318 was liability imposed non-U.C.C. cases. other only liability to act as a for breach upon meant limitation seller’s who privity, those who stand in but not those horizontal (Omaha Corp. v. Carver- privity. stand vertical Pollution Control limitations of Greenfield.) disregard enlarge express We cannot or section 2—318.
Moreover, enacted, at legislature the time 2—318 was rejected language. considered alternative The alternatives considered as read follows: B. A express
“Alternative seller’s *6 person may reasonably expected extends to natural who be to use, by goods injured consume or be the is in affected and who by person warranty. breach the A may of seller not or limit exclude operation the of this section.” C. A warranty
“Alternative seller’s express or use, any person may extends to reasonably expected who to consume, or goods injured by be affected who is the breach of A warranty. may operation the seller or limit of exclude this respect section with to injury person to the of an individual warranty whom the extends.”
It is apparent third-party the classes of of beneficiaries warranties under the rejected alternatives much they are broader than are under the language in adopted By Illinois. electing to enact what was then Illinois, Alternative A for section 2—318 in legislature we believe the consciously chose to limit a liability seller’s for breach of specific Thus, classes enumerated therein. since section 2—318 is present to the by analogy, plaintiffs case must demonstrate that occupies position analogous Knox a Hershey relation to to that Johnnie of a family member or guest purchaser. of a An employee purchaser of the last goods may qualify as a third- party beneficiary under section 2—318. (McNally v. Nicholson (Me. 1973), Manufacturing 313 A.2d The theory underlying this principle employee is that the stands such his relationship employer, purchaser, the last family that he is the equivalent functional or guest member. Were we here with an employee Hershey, concerned foregoing persuasive urged case would be for the authority result Knox, lessee; plaintiffs. however, an is employee is not he Johnnie A employee & P. Consequently, he is from the last twice-removed party position Hershey chain. is the distributive His relative to equivalent, persons in terms of the classes of enumerated in the household of borrower guest family of a member situation, believe In a we do not purchaser. from the last sale relationship give person who stands would Likewise, beneficiary third-party in Illinois. purchaser
last status of advantage of may we Knox take by analogy, do not believe Johnnie beneficiary. Dickey See provision section 2—318’s to become such a Prestress, Lockport App. Div. 2d 384 N.Y.S.2d Inc. inapplicable to the holding of our that section 2—318 is view third-party qualify as a present case since Knox does not Johnnie four-year beneficiary implied warranty, of defendant’s follows in the limitations for for breach of found statute of actions action, therefore, is U.C.C. cause of inapplicable. is also Knox’s Johnnie for subject applicable to actions two-year to the statute of limitations was personal injuries. par. 15.) ch. Since the suit Rev. Stat. arose, barred, it is years filed more than two after the cause of action complaint. trial properly court dismissed count of holding propriety our is dismissal dispositive Because that, I, unnecessary count it is the contention of defendant consider test, significant relationship” under “most Louisiana should be deemed in which the cause of action arose. State if suit finally Plaintiffs contend that even Knox’s for Johnnie Knox, limitations, injuries plaintiff, barred Irene the statute of At the loss consortium. nevertheless entitled to maintain her action for arose, such period time the cause action Illinois limitation 16.) Since the years. (Ill. actions five Rev. Stat. was that the trial court complaint period, they within this contend filed II. in dismissing erred count consortium, her Irene Knox recover for loss of husband’s
Before (Kolar injuries. she must that defendant is liable for her husband’s prove *7 we City 12 Ill. Since Chicago (1973), App. of law, held, to her have as a that defendant cannot be held liable matter of of Irene action for loss warranty, husband for breach of an Knox’s properly dis Consequently, must fail. the trial court consortium also complaint. missed II of the count reasons, court Cook the circuit of foregoing
For the order of County dismissing complaint is affirmed. plaintiffs’ affirmed.
Order SIMON, concurring: specially Mr. JUSTICE cause plaintiffs’ that the I conclusion Judge McNamara’s agree however, reach, I the result properly explain action dismissed. To was not my justices have point which fellow necessary emphasize it is to a discussed. that the defendant breached theory of the case is plaintiffs’
The complaint particular purpose. implied warranty of fitness for judgment skill and relying on defendant’s alleges Hershey that was handling of transportation and loading, furnish boxcars suitable for breached theory is that the defendant Hershey’s commodities. Plaintiffs’ which was Hershey a boxcar delivering to implied warranty by in the boxcar floor appeared way in such a that a hole constructed Although plaintiffs Hershey’s purpose. was not fit for that such boxcar upon suit is not based complaint repair, to a covenant to their refer their that covenant. breach of question it is reach the of whether necessary do not believe does, if it his Johnny of fitness runs in favor of Knox. Even action, my 4-year provision limitations opinion, is barred 2-725): U.C.C. Rev. Stat. must be any contract for sale
“(1) An action for breach of cause action has accrued. years within 4 after the commenced parties may period reduce the By original agreement it. may extend year than one but not limitation to less occurs, regardless (2) A when the breach cause of action accrues A the breach. breach aggrieved party’s knowledge lack of made, delivery except that warranty occurs when tender of warranty explicitly performance future where extends to discovery goods and of the breach must await the time of such performance is or cause of action accrues when the breach should have been discovered.” March and tendered
Defendant leased the boxcar on thus accrued delivery Hershey a short The cause of action time later. was lines and 1966. The fact that on various railroad the boxcar circulated it was time before shippers for use other from time to rerouted tender of Hershey Hershey received returned to does not mean regained it use delivery meaning within the of section each time had, have even the boxcar. Nor does the fact defendant boxcar after it was first delivered purposes repair, possession injury Hershey preceding Knox’s Hershey redelivery but before the delivery under redelivery mean that the constituted a new tender of unfit that the boxcar was plaintiffs’ section 2—725. The crux of the claim is then. The upon delivery initial in 1966. The breach occurred Hershey. Nor was was rerouted to not renewed each time the boxcar made or by any repairs that were repair renewed the covenant to needed.
692 repair
The covenant an explicit guarantee was not of future (Wilson Massey-Ferguson, v. Inc. performance. (1974), App. 21 Ill. 3d Binkley Teledyne 867, 870, Co. v. Mid-America 580, 584; 315 N.E.2d see Corp. Chrysler Corp. Tomes v. (E.D. 1183; Mo. 333 F. Supp. (1978), 707, 709, 60 Ill. App. 227.) 3d Because the complaint allege any explicit guarantee fails to performance, of future the limited discovery exception provided 725(2) for not does (Beckmire v. Clay Ristokrat Products Co. apply (1976), here. 36 Ill. App. 411, 413, 530, 532.) justification adding 3d 343 still N.E.2d find no for discovery exemption By another not even mentioned in the statute. occurs, explicitly stating that a action cause of accrues when the breach “regardless breach,” aggrieved party’s the lack of knowledge of the the legislature apply chose not to a discovery upon doctrine to actions based the except commercial code explicitly 725(2). as set forth section 2 — Berry v. G. D. Searle & Co. (1974), 56 Ill. 2d N.E.2d did not actions, extend discovery implied the rule to in that warranty of fitness case years pills the action was filed within delivery the from the of the injury. that caused the dissenting opinion argues
The that despite express the words of section 2—725 contrary begin to the the statute of limitations does not run until injured party bring discovers the breach and is able to suit. support case the dissent relies on to proposition conflicts Welding Manufacturing Morton Texas (S.D. Illinois law. In Tex. 1976), 408 F. Supp. judicially grafted discovery the court onto the rule 4-year U.C.C.’s absolute bar as enacted in court that the Texas. The felt legislature long Texas had enacted after the Texas courts rule, had generally adopted discovery therefore legislative general discovery intention had been to include a rule in the Illinois, however, Texas Commercial Code. legal evolution was the opposite. The U.C.C. adopted first long Illinois before courts (See Rozny v. Marnul adopted the equitable discovery (1969), rule. Lipsey Hospital v. Michael Reese 2d 46 Ill. N.E.2d 450.) Thus, assume, simply N.E.2d it is not from the correct discovery existence has applied rule which been to some of the statutes, legislature discovery Illinois limitations that the intended a broad apply arising rule to cases from breaches of warranties where explicit guarantees performance. there were no of future if plain wording preclude Even of section 2—725 did case, application discovery equity do not rule to this the interests of application discovery favor rule to breaches determining apply discovery warranties. doctrine to limitation, must be balanced: the increased competing statute interests against proof accompany passage time difficulties of which should have injured plaintiff who neither knows nor hardship to 54, 250 (Rozny v. Marnul (1969), 43 Ill. 2d to sue. right known Commercial dealing we with the Uniform Because are Code, uniformity important interests we should also consider *9 Stat., 26, par. result and Ill. Ann. ch. certainty. commercial 2— Comment, 1963). (Smith-Hurd Code at 614 Uniform Commercial certainty and themselves uniformity I note first that the interests of (Ill. Ann. outweigh proof. the concern for the increased difficulties Comment, Stat., (Smith-Hurd Code at 613 Illinois Thus, because all 1963).) hardship where is no to the defendant even there hands, as is the case necessary prove typically facts its case are its v. (Gates Co. USM Rubber this, discovery as a suit such there no rule. Corp. addition, (7th 613.) hardships Cir. 508 F.2d by plaintiffs 4-year in a 2—315 caused an absolute statute of section suit minimal. are Since cause of is a defect limitations the heart action it unreasonably dangerous, many which makes plaintiffs liability perhaps negligence would have at least strict and suit as A suit brought overlapping legal well. under these theories would have Airlines, (See, e.g., Chicago & Southern of a discovery benefit rule. Inc. 609, 370 (1977), 54 Ill. N.E.2d A Knox App. plaintiff might 3d like be section 2— 4-year barred an absolute statute of limitations under by instituting but he still be obtain a tort suit would able to relief discovery. Illinois within The absolute years date reasonable hardship injured plaintiff, bar in little to an the commercial code works unnecessary discovery and for that it is rule to suits apply reason Chrysler Corp. (1978), v. Accord, Tomes brought under 2—315. App. N.E.2d Uniformity certainty 4-year and absolute require commercial written, softening bar of no section 2—725 remain as with effect of judicially applied discovery bar are not doctrine. The results True, U.C.C. barred relying a suit Knox on the even absurd. personal his injury trying before the occurred. But Knox here to distort only he injury warranty theory slept so as to fit it into a because breach of the date of rights years on his his suit within after bringing discovery provided by reasonable as the Illinois statute have period within that would recovery personal injuries. for Action code, suit, under the commercial questions made this with its difficult law to fit this clear statement of the unnecessary. should not We bend plaintiff protection. under Knox recover for cannot agree Judge
I McNamara Irene himself recover consortium if her husband cannot loss of her husband’s for his injuries, whether because the does not extend to him (Kolar City Chicago because his suit is 12 Ill. timebarred App. 3d 479). RIZZI, Mr. dissenting: JUSTICE
I be believe defendant’s motion to strike and dismiss should I denied. would reverse the dismissal order and the case to the remand trial court.
The Law Illinois Controls this Case opinions first second do not discuss whether the law Illinois governs compelled or Louisiana this case.1 I am decide controls, If issue. the law of be maintained Louisiana the case cannot because, occurrence, one-year period at the time of had a limitation injury not adopted for actions had the Uniform Commercial maintained, controls, Code. If law of Illinois the case complaint provided sufficiently states a claim for breach Code, warranty, four-year has which has a adopted because Illinois This suit was period limitation actions. breach *10 period. four-year filed within the case,
Since I believe the Code is in this I reach the conclusion that governs Illinois law the 105(1) case because of section 1— provides: of Code. This section in this Section when a transaction
“Except provided as hereafter bears a relation this reasonable to State and also to another state or parties may agree nation the that either this of the law of State or such govern rights other state nation shall their and duties. Act to applies this an bearing transactions agreement such Failing to State." appropriate relation (Emphasis added.) Rev. 26, par. 105(1).) Stat. 1— Uniform Commercial Code Comment 3 to section 1—105 states: “Where a significant transaction has contacts with which state has enacted the Act and jurisdictions, question also other ‘appropriate’ judicial deciding what relation is to In decision. left strictly by that question, precedents the court is not bound established in other contexts. Thus decision conflict-of-laws refusing purely to apply particular local statute or rule of law to a may precedent multi-state not be to transaction valid refusal convenience, opinion designated “opinion as the of the court” shall be referred For concurring" opinion. opinion designated “specially opinion herein as the first The as opinion. be referred to herein as the second shall analogous
apply the Code Application situation. the Code of justified in such comprehensiveness, circumstances policy large part fact it is in uniformity, and that of of the reformulation and restatement law merchant and of the understanding of a state and community business which transcends Stat., ch. added.) even national boundaries.” Ill. Ann. (Emphasis Comment, Uniform at Commercial Code (Smith-Hurd 1963). case,
In present corporation, subject defendant is an Illinois jurisdiction, benefits, of comply and laws of Illinois. It must with the laws Illinois in the conduct its business. Its home office and nerve center operations are in leasing Illinois. Its business of railroad boxcars various States, shippers and all throughout industries extends the United but it is through controlled its home office Illinois. Illinois, regular course of its entered into business defendant
a lease with Hershey in question. Chocolate for the boxcar The lease was executed in Illinois and was in effect at the time of the occurrence. Under lease, the terms of the Hershey required was to inform defendant boxcar, promptly loaded, movements dates was nature the commodities shipped, Hershey and its destination and routes. was required provide also involving defendant with all other information Further, the boxcar. defendant a mileage charge was from the entitled companies addition, railroad using provided boxcar. the lease defendant responsible was repairs for the maintenance and relevant 30,1973, May the boxcar. On defendant was that the notified floor boxcar was in disrepair.
Hershey’s principal place Pennsylvania. is in business boxcar by Hershey Hershey’s loaded and shipped purchasers via rail to throughout chocolate allegedly United States. The accident occurred as a result of defendant’s repair failure to the floor of the boxcar after having actual notice that it disrepair. was in The boxcar was in Louisiana at that time for the sole purpose delivering Hershey a carload of Orleans, P chocolates to an A & warehouse in New Louisiana. lease, These facts demonstrate all pertinent provisions arises, under which implied warranty effectively controlled were *11 Illinois At by defendant. time occurrence and relevant times occurrence, boxcar, maintenance, leading up to including movements, repairs, and operational in Illinois effectively regulated Moreover, defendant. duty repair defendant’s to the boxcar is inseparably Illinois. intertwined with defendant’s conduct in Defendant had actual duty notice that the floor of the was in If the disrepair. boxcar repair breached, to the boxcar was the breach occurred in In light Illinois. in Code
of stated Comment these circumstances considerations to Illinois under relationship an clearly appropriate transaction bears this governs law case. 105(1) the Code and Illinois of II Applicable this Case in 2—315 the Code is Section of agree opinion implied I there is an with conclusion in the first that I warranty disagree But with of fitness under 2—315 of the Code.2 distinguish this lease attempting in to opinion rationale warranty a is transaction insofar as breach from other lease transactions meeting in my judgment, any goods3 concerned. In transaction requirements implied it carry of section 2—315 should an (See is sale or lease. regardless fitness the transaction a whether v. Scaffolding Owens Patent Co. 354 N.Y.S.2d (1974), Misc. 2d In re 778; (D. Me. Vaillancourt Rep. 7 U.C.C. Serv. 748 (D. Me. I 1970).) point on this is artificial. feel that distinction A the statute that judicial interpretation modem dictates goods involving transactions sales and leases should be treated alike. leases, goods multitude of and the involving view of the transactions sales, involving anomoly subject types it like number would be an these regarding commercial to different rules of law warranties transactions transactions, one when the effect of each is identical. both relevant party acquire right seeks to and the other seeks use & Walter E. Heller Co. (See right product. transfer use Convalescent Home 213, 218, 219, 365 (1977), App. 49 Ill. N.E.2d Com. Building 10, 383 Crowe v. Public 74 Ill. 2d cf. action).) respect With (court liability in a strict equated lessor to a seller warranties, the transfer should make no difference reasons, 2—315 applies I believe section by title or made lease. For these in this case. Ill Party Beneficiary
Plaintiff is Third of the Code Under Section 2—318 not a plaintiff is opinion first that I disagree with conclusion the Code beneficiary third-party under section accept the determination I cannot Specifically, action. is not v. G. D. Ill. 2d Berry (1974), 56 Searle basis this case should be decided on the agree Nor can applicable. privity. lack of Berry implied warranty action under section 2—315 involved between privity 2—318 of the Code. The court held that lack opinion. in the first reproduced Section 2—315 of the Code applies to transac provides, part, Section 2—102 Article relevant “[T]his ° ° goods tions in Stat. 2—102. Rev.
697 purchaser in a breach of consequence and remote manufacturer is of no conclusion, warranty reaching action under the Code. its 548, 553, 550, (56 553): court stated 2d 309 N.E.2d provisions clearly “The aforementioned demonstrate the Code legislative statutory intent to create a cause of action for breach of implied warranty protection consumer to those who afford injuries sustain resulting from deficiencies.” (Emphasis added.) and, time, order give full effect to this intention at the same take into account the developing concerning liability case law for defective products (see 612, (1965), Suvada v. 32 Ill. White Motor Co. 2d 182; N.E.2d Dunham v. Vaughan Mfg. (1969), & Bushnell 42 Ill. 2d 339, 401; Berry; 7, N.E.2d (1974), Winnett v. Winnett 57 Ill. 1; Court v. Grzelinski 72 Ill. 2d see also (Second) Restatement of Torts (1965)), implied warranty §402A should apply to users all persons may reasonably expected who be affected breach of the warranty regardless privity. opinion
The first emphasizes “electing to enact what was then Alternative A Illinois, for section 2—318 in legislature, we believe the consciously chose to limit a liability seller’s breach of to the specific classes enumerated (Emphasis added.) therein.” very Yet next paragraph opinion, the court accepts that an employee of the last purchaser may qualify beneficiary as a under section 2—318. If the conclusion of the court that legislature “the consciously chose to limit a seller’s warranty specific to the correct, classes enumerated therein” then do not believe the logically court can accept employee an of the last purchaser as a beneficiary under section 2—318. Certainly, employee not one of “specific classes enumerated therein.”
Contrary to opinion the conclusion the first regarding the intention legislature, suggests section 2—318 legislature that the intended that “the section is neutral” as to it beyond includes classes those expressly enumerated. Specifically, Uniform Commercial Code Comment to section as it existed at the time the Code 2— adopted in reads: “This section expressly includes as within beneficiaries provisions household, the family, guests the purchaser. ° ° this, Beyond the section is neutral (Emphasis added.) Stat., Ann. Uniform Commercial Code Com- ment, at (Smith-Hurd 1963). Clearly, one interpret would this to mean when the Code was adopted, legislature judiciary intended to look to the to determine Thus, whether the classes of enlarged. beneficiaries should be electing A, to adopt Alternative legislature did not limit consciously choose to liability seller’s for breach of specific to the classes enumerated remain Rather, the section to have merely intended the section. enlarge judiciary decide whether and to let the question neutral on this Anderson, basis. In case-by-case the classes of beneficiaries on author (1970 Supp. Uniform Commercial Code §2—318:2 states: 1951,limiting A was as Alternative substituted
“The form shown buyer. guests of family, household and beneficiaries to this, neutral and the section was Beyond according to Comment law.’ developing case or restrict ‘the enlarge was not intended to ** * substantially the promulgated B Alternative is therefore *13 of more form, reflect the trend C is drawn to and Alternative 2d by of Torts §402A as indicated Restatement recent decisions * « * ”4 added.) (Emphasis law, adopted has case Illinois by developing Significantly, Torts, 32 Ill. 2d (Suvada, 402A. (Second) of Restatement 339, 343-44, 247N.E.2d accord, Duham, 2,621-22, 182, 187; 42 Ill. 2d 210 N.E.2d Illinois, that, law 401, by developing case to me 403-04.) suggests This 402A, Torts, (Second) of in Restatement persons included those Section 2—318 of the Code. under section qualify should as beneficiaries even product of the any covers user expressly 402A Restatement of the any entered into from or brought product “has though he not law, of section By principles case with the seller.” contractual relation reasonably be who persons include all 402A been extended to have Winnett, 57 Ill. 2d (E.g., product. be affected the defective expected to 281, 283, Court, 141, 146, 151,379 N.E.2d 1, 4; 7, 11, 72 Ill. 2d 310 N.E.2d intent of legislative full effect to the summary, give in order to 285.) In time, and, take into the same the Code at 2—315 and of sections defective concerning liability for law developing case account who persons and all apply should to users implied products, implied of by the breach to be affected may reasonably expected be of warranty regardless privity. pivity, upon lack of is based opinion in the first
The decision with the disagree privity. vertical horizontal and distinguishing between opinion. first taken in the position injury personal any this case or other to decide
I think it is a mistake In actions when in Illinois. concepts privity of exhuming case injuries, Illinois courts damages personal seeking recover plaintiff is be decided nonliability should not liability position taken the have Tea v. Great Atlantic In privity. basis of on the Pacific Tiffin that a breach recognized 48, 162 the court N.E.2d (1959), 18 Ill. 2d even of food a seller against may be maintained warranty action implied Suvada, court In parties. between privity was no though there Rozny v. In liability cases. in product privity the doctrine abolished opinion. reproduced first in the B C are Alternatives abolished the court Marnul N.E.2d (1969), 43 Berry, lack of held that the court In in all tort cases. privity requirement of action a breach consequence no privity manufacturer. a remote purchaser between liability and Berry tort recognized court eschewing privity, N.E.2d 56 Ill. 2d similar. warranty liability are distinguishing adhering to or process in Illinois the Plainly, unsatisfactory method be an proved has privity requirement injuries. Because suffer liability persons who determining doctrine, exceptions artificial created courts applying the difficulties always which were desirable results necessary to achieve deemed (Rozny, 54, 62, 660.) I 43 Ill. 2d completely reconcilable. path. my this same beaten treading be do not believe this court should recovery plaintiff to the deny not make sense opinion, does case, P, yet, & and in another A merely employee he is an because accident, in a injured the same recovery Hershey employee to a allow Rozny manner, product. the same defect like and as result of 54, 62, 250 (43 Ill. 2d privity apt here relating court’s statement 656, 660): after Suvada v. White remaining still any uncertainty “To eliminate Co., 612, 617, Motor that lack of direct emphasize 32 Ill. 2d we in a parties is not defense relationship contractual between Thus, will jurisdiction. liability in this tort henceforth tort action than artificial duty owed rather scope measured concepts privity. *14 privity concept, we now
Having any remnants of the discarded liability using scope of defendant’s concern ourselves with misrepresentation traditional tortious standards.” up privity the discarded remnants of pick I feel this court should not law, they where are actions and them back into our personal injury mold again. destined for eradication
IV Section The Four-Year Limitation Period Applies of the Code in this Case 725(1) that Defendant contends section is not this 2— argues case.5 that a warranty Defendant breach of suit to recover personal injuries, for brought by third-party beneficiary, must be filed two-year within the limitation in 14 of the (Ill. Limitations Act 1973, 83, 15), Rev. Stat. ch. par. four-year rather than the limitation under 725(2) of argues the Code. Defendant also cites section the Code and 2— 5 725(1) Section reads: “An action for breach of contract for sale must be 2— years commenced within 1973, 4 26, after the cause of action has accrued.” Ill. Rev. Stat. ch. par. 725(1). 2— period begin of limitation for breach of should to run 725(2) delivery Hershey. from the date of of the boxcar Section 2— that a delivery states “breach of occurs when is made tender of o « «” (Ill. 725(2).) Rev Stat. ch. par. Defendant’s 2 — arguments are without merit. Berry. Section 2—725 was discussed the court in construing the statute, the court gave effect legislative to the plain meaning intent and this section. regard, 548, 551-54, this (56 the court stated 550, 552): N.E.2d
“The primary presented issue for review is whether the four- year statute of limitations 725(1) established 2— governs Code’s sales article brought an action personal injury for allegedly arising from a breach of implied warranty. # # e
We 725(1) therefore hold that section sets appropriate forth the 2— period personal limitation injury for predicated upon actions breach-of-implied-warranty theory under the Code.” is, therefore, It inarguable 725(1) that section sets forth the 2— appropriate period limitation all personal injury for upon actions based Accord, Morton breach of warranty theory under the Code. Texas Welding Mfg. (S.D. 1976), F. Supp. Tex. 10-11. The period 725(1) limitation under section is “within 4 years after 2— the cause of action has accrued.” Rev. Stat. 2— 725(1).) running of a statute of limitations assumes that during that period injured party Therefore, could have brought suit. period begins to run from the date injury when the claim damages is for resulting personal from injury. (Morton, F. Supp. Plainly, the cause of action 3,1973, accrued on November plaintiff, date Johnnie Knox, Jr., injured. was Defendant’s theory that the four-year limitation period began to run from delivery the time of Hershey the boxcar to produce instance, would absurd results. four-year For if the limitation period begins to run delivery from the date of a breach of warranty action to recover injury, period of limitation would expire many cases injury before the occurs. When the entire Berry, statute is in light examined legislature (see the intention of the 548, 553, Ill. 2d it is clear the four-year period limitation provided in section 725(1) applies to this case and the period began to run from Knox, the date Jr., injured. Since Johnnie the suit was filed within four-year period, defendant’s motion to strike and dismiss count I of the complaint should be denied. *15 V Complaint
Count II of the should not be Dismissed In the first and opinions, my second colleagues affirm the dismissal of brought claim for loss of consortium which is a complaint, II of the count essentially Knox, II Count contains plaintiff, wife of by the Jr. Johnnie strike motion to defendant’s as 1.1 believe allegations count relevant same it should for the same reasons II should denied and dismiss count (1974), 58 count I. See Mitchell be denied as to v. White Motor Co. par. 15.1. Ill. Rev. Stat.
Conclusion and dismiss the motion strike Accordingly, believe defendant’s dismissal order and complaint denied. I would reverse the should be trial case to the court. remand the ILLINOIS, Plaintiff-Appellee, v.
THE PEOPLE OF THE STATE OF HEARD, Defendant-Appellant. CHARLES (5th Division) No. 78-1711 District First January Opinion filed