*1 order, review of this final this court is then Upon authorized to review the entire record and determine the order, circuit court’s propriety which original reversed and remanded the matter to the Industrial Commission, its as to the disallowance of including finding credit for made under of the two payments provisions insurance v. Industrial Com. group policies. Downey Industries, ACF Inc. v. Industrial Com. 8 Ill. 2d 552.
We thus hold order of the circuit court of Franklin the order of the County Industrial reversing Commission cause to the Commission remanding was an order and not Accord- interlocutory appealable. and the cause is ingly, dismissed remanded to appeal the Industrial Commission for further proceedings, pur- suant to the order of the circuit court. dismissed; cause remanded.
Appeal (No. 49171.—
WEST AMERICAN INSURANCE et al. COMPANY v. SAL
E. COMPANY, INC., LOBIANCO et & SON al.— Patterman, v. Aetna Life & Casu (James Appellant, alty Company, Appellee.)
Opinion No vem ber filed *2 Mills, of Gates W. of Geneva S. Clancy, (James for counsel), appellant. Moelmann, Fuller, an
Hinshaw, Culbertson, & Hob Davidson, W. Sandrok and Stanley Chicago (Richard J. for appellee. counsel),
MR. DOOLEY delivered JUSTICE court:
Plaintiffs, Insurance and West American Company of their Aetna Life and Casualty subrogees Company, insureds, Snellbaker, home P. W. whose William and Mary burned, E. had an action Sal been against brought Inc., & Son and Lobianco Company, corporation general Patterman, contractor. contractor, and masonry James in the fire resulted from They negligence alleged home. construction of Snellbaker dismiss, on the bar Pattern!an’s motion predicated for suit of the statute of limitations requiring after the within 5 next to “be commenced years property ch. of action accrued” Rev. Stat. (Ill. par. was The dismissal order made was appealable 16), granted. Aetna R. to Rule 304(a)), pursuant 304(a) (58 reversed summary appellate appealed. the cause for a trial on the and remanded disposition leave We Patterman merits. *3 granted (43 R. to under our Rule 315 315). appeal (58 28, 1974, On was filed. It January complaint 4, that the home was erected to alleged “prior January 1972,” Inc., Sal E. Lobianco & Son as the by Company, contractor, Patterman, and the defendant the general by contractor. masonry Mr. the
In 1971 and Mrs. Snellbaker home. purchased 4, 1972, the on According complaint, January Snellbakers started a fire in the and the wall fireplace, result, it a the behind broke into flames. As Snellbakers’ Patterman, to his affi- home was demolished. according dismiss, in the to on the davit motion worked support in 1966 and 1967 but not fireplace beyond.
The issue us is when did the cause before work, the accrue. If it was in 1967 when the defendant did the the other the of action is barred statute. On by hand, if the cause of action accrued when the fire occurred, the 1974 action was timely.
In a with a question dealing involving period limitations, we be of this should aware of attitude In towards statutes of Geneva Construc limitation. tion Co. v. Martin & Ill. 2d Storage Transfer 273, it was observed: limitation, statutes,
“Statutes of like other must their be construed in light objectives. The basic of such is to a statutes afford policy defendant fair to investigate opportunity circumstances which him is liability upon against while the facts are accessible. That predicated has been served here. As observed purpose fully York Mr. in New Central Holmes by Justice 340, 342, Railroad v. U.S. Kinney, 260 ‘Of course side, an can made on the other but argument by when a defendant has had notice from sets beginning up trying plaintiff to enforce it claim because against specified conduct, the reasons for the statute of limitations exist, do not and we are of that a liberal ” 273, rule be should 4 Ill. 289-90. applied.’ Fashion, in Tom So also Olesker’s World Exciting Bradstreet, Inc. v. Dun & Inc. 61 Ill. 2d it was said that of limitation are purposes periods twofold: of actions within a require bringing reasonable time so that available evidence will lost, and, impaired secondly, delay discourage claims. bringing
This is tort action. The amended complaint alleges duty defendant to exercise due care in particular work, of his and the performance specific negligence *4 fire therefrom, as well as care due on damage resulting Snellbakers, whose cause action part as plaintiffs, assert. It seems well established subrogees, that a cause of action based on tort accrues when all only
130
elements are breach and or present duty, resulting — Gas & Electric Co. Hoopeston v. (McClure damage. (1922), 89, here can be doubt that a 303 But no cause “[t] of action the forces in accrues when only put wrongfully cases, Otherwise, motion in a extreme produce injury. cause of action before barred arose.” liability might Schmidt v. Co. Transportation Merchants Despatch 300, 824, 287, N.Y. N.E. 270 200 (1936), in The rule established in a jurisdiction long out of is that the action personal injury arising negligence cause of at the v. action accrues time injury. (Leroy 114, So 81 Ill. also City Springfield (1876), 115-16.) v. Brown Co. Williams Manufacturing (1970), 431-32, 418, action for a strict liability involving the same was defective product, principle applicable it left the manufacturer’s had product, although possession long limitation prior expiration period. made, In the case of the defective product negligently strict for liability unreasonably from distinguished of action is no accrual of there product, dangerous of action made. when negligently product has existence until someone been not into does come Works, Inc. Sides v. Richard Machine injured damaged. 446; 445, Rosenau v. Cir. 406 City F.2d (4th 1969), 137, 169, 130, New 51 Brunswick 238 A.2d (1968), N.J. - 172-73; Des 363 v. Moines Co. Foley Pittsburgh (1949), 38, 1, 517, 535; see Decaire v. Public Service Pa. A.2d 402, 966; L. 964, 3A 173 Colo. Co. P.2d Friedman, M. sec. Frumer and Products Liability 39.01(2) (1977). from the
In an for property resulting after land due to subsidence of mining, inadequate support from the time of sub the limitation begins period sidence, There is no from the time mining. v. Coal has Savant Superior until the land subsided. Wanless v. Peabody
131 v. 401, Treece Ill. Coal Co. 294 App. (1938), 113, Coal 245 Gem Corp. Southern (1923), App. Bonomi, Backhouse v. 116-119, British case of the citing 11 825 (1861). Eng. Rep. have reached
Other question posed jurisdictions of action for that the cause here and have concluded of installation accrues at the construction or time negligent v. D. Mullins Co. Products S. 127 Welding injury. (1972), 881, 474, 478, Ga. 193 884 S.E.2d (negligent App. arose at of a roof—cause action time construction Hunt v. Star Photo Co. 115 Finishing (1967), collapse); 1, 6, 602, construc- Ga. 153 605 S.E.2d (negligent a roof which of action arose at tion of collapsed—cause White time of v. Schnoebelen N.H. collapse); 273, 275, 185, 187 installation of 18 A.2d (negligent of action did not accrue rod fire—cause lightning causing until injury). statute that an action of character
The provides “shall within 5 next after be commenced years 83, accrued.” Rev. Stat. ch. (Ill. par. 16.) We there no cause of have seen that without accrual can be or action. there is no cause of action until And has occurred. damage rule is action accrues when
Unless the cause of sustained, the tortfeasor would in or damage that the assert occurred instances many successfully wrong of limitations had at a time when statute already This fundamental would with hardly comport expired. situation, if to this fairness and Translated simple justice. at the time of the the limitations masonry period began would homeowners contractor’s undertaking, third with have no of action party right against negligent if no had no contract. So also resulted whom they damage there be no then would from defendant’s negligence, another, law, to one lead of action. not Logic strangers the same conclusion. in the statute of limitations We a difference recognize arises of a contractual where tort out relationship. at There it the time breach duty, commences v. Co. is sustained. when the (Pennsylvania & Paul Milwaukee St. Ry. Chicago, is that the breach itself is reason principal to act within This rule actionable. party encourages until rather than five breach delay damages years however, Here, we have no increase. privity, question *6 the Snellbakers and contractual between relationship, defendant. the
The appellate reversing judgment for a trial on the and of dismissal remanding judgment is affirmed. merits
Judgment affirmed. RYAN, MR. dissenting: JUSTICE from the of dissent I must opinion my respectfully conclusion that do I with the Not only disagree colleagues. on fire the house cause of action accrued when the caught come to the failed to I fail to see why but also opinion case, heart of this I to the with what conceive be very grips is, rule” should the that whether “discovery applied these circumstances. under the seems to this issue
Instead of opinion confronting action from causes of two different arising accommodate of of One cause the the construction fireplace. negligent who had in favor of an owner would arise action origianl for the construction of with defendant contracted have courts of this many The State fireplace. appellate which cases the or held that such injury times of to create the cause holds necessary the majority opinion structure is the defective when action is completed and that consequences flowing constructed subsequent case, are relevant the fire in this therefrom, only such as v. Emil to the damages. (Simoniz question J. Inc., 428; Sons, Board Anderson & 81 Ill. 2d App. 158; Co., v. Education Duffy App. 2d Joseph J. Co., 218; Morris Sabath v. Handler Wilson App. 2d v. Motor Board White 118 Ill. 2d Corp., App. Will 119 Ill. Education v. Perkins & Partnership, App. Gas, Inc., Coumoulas v. Service In fire in a as a result occurred building court held that installed boiler. The negligently gas occurred at the time of the installation injury have been entitled at that time would plaintiff to to sue recover to defective remedy damages installation. does not of these opinion dispute holding
cases, but finds that could have Snellbakers such an before the fire a lack maintained because of or contractual privity between them and relationship the defendant. The then creates another cause of action in favor of the which Snellbakers comes into existence at the time fire.
We are not here concerned awith personal injury an individual. The did not when question the Snellbakers accrue when did the owner accrue. This case original involves suit for damage *7 to and it would to me that the property, appear would a accrue at certain time of who regardless owned the This seems to me to property. inconsistent with the of completely holdings many court I have cited. appellate opinions I also am concerned that found it majority to create this two-tier what it necessary arrangement by conceives to be the continued existence of the vestige Such “privity.” lends substance Dean recognition to Prosser’s statement concerning liability building contractors: “This was a field in which the ghost Winterbottom v. M. & W. Wright 152 Rep. Eng. [10 Prosser, died 402 hard.” Torts sec. at (1842)] very ed. (4th 1971). I can foresee some anomolous consequences arising from the that the of action accrued when holding the fire occurred. Such a would seem to holding permit series of actions a series of owners with no by possibility of ever contractor terminating exposure original for the construction defective liability fireplace. Would also the same owner to holding permit a series of actions based on a series of fires. If a new bring cause of action arises with each fire the statute of limitations will never bar recovery against original We are here the bar of the wrongdoer. considering only statute limitations and not the questions proximate cause or contributory negligence.
It more would to be to all appear equitable parties hold, affected if this would as the courts appellate occasions, have held on many occurred when the defective construction was property and then alleviate completed, any by hardship considering Keck, rule.” Auster v. See 31 Ill. 3d “discovery App. 485; 61, rev’d.on other 63 Ill. Korvette v. grounds, 2d E. J. Co., 905; Esko 3d Mount Roofing App. Society of Fox, Carmel v. Golden Grain App. Macaroni Co. v. Co. 45 Ill. Engineering Klefstad homeowner aware of a in a
A defect fireplace being should not be to sit and do until his permitted by nothing house burns and then 8 or 10 after he years acquired of the defect knowledge an action bring against defendant who constructed the Also, defective fireplace. because of a lack of simply between the home- privity owner and the contractor, he should not be to wait for his house to required bum or a roof to fall in before he can an action for bring damages remedy known defect.
The coal subsidence cases cited mining the opinion *8 Those cases to the are not majority’s position. helpful land, interests in involve two distinct underlying The acts and the surface mineral rights rights. there was no in the mineral occurred rights, underlying Also, surface until the land to settle. began the first of the nature of the because operation, knowledge have of defective would be that an owner would support cases seem to be an the land. These settling that the statute of limitations the principle application run knows or should have when begins plaintiff action, the rule.” known of his “discovery with the is also in conflict very clearly recent of this Auster v. Keck holding
(No. 48929.— v. WILLIAM HOWLETT, Appellee, MICHAEL J. J. General, SCOTT, Appellant. Attorney 30, 1977. November Opinion filed