Berry v. G. D. Searle & Co.

• Decision Date: 29 March 1974
• Docket Number: No. 44845,44845
• Citation: 56 Ill.2d 548,309 N.E.2d 550,70 A.L.R.3d 304
• Court: Illinois Supreme Court
• Parties: , 70 A.L.R.3d 304, 14 UCC Rep.Serv. 346 Martha BERRY et al., Appellants, v. G. D. SEARLE & CO. et al., Appellees.

Page 550

309 N.E.2d 550

56 Ill.2d 548, 70 A.L.R.3d 304, 14

UCC Rep.Serv. 346

Martha BERRY et al., Appellants, v. G. D. SEARLE & CO. et al., Appellees.

No. 44845.

Supreme Court of Illinois.

March 29, 1974.

Leonard M. Ring, Chicago, for appellants.

Howard & French, Chicago (Richard G. French and Stuart Litwin, Chicago, of counsel), for appellee Planned Parenthood Ass'n of Chicago.

Baker & McKenzie, Chicago (Francis D. Morrissey, Thomas F. Tobin, William P. Richmond, and J. Patrick Herald, Chicago, of counsel), for appellee G. D. Searle & Co.

KLUCZYNSKI, Justice:

On May 29, 1969, plaintiffs, Martha Berry and her husband, filed a complaint in the circuit court of Cook County which was thereafter amended. In a second amended complaint Martha Berry (hereafter referred to as plaintiff) sought damages for injuries allegedly sustained by her after having taken a birth-control pill commonly known as Enovid. This drug was manufactured by defendant G. D. Searle & Co. (hereafter Searle), and prescribed and sold to her on and before May 29, 1965, by the co-defendant, Planned Parenthood Association of Chicago (hereafter Association). The initial action was filed more than two years after plaintiff sustained her alleged injury, and the circuit court granted defendants' motion to dismiss counts I and II of the second amended complaint, holding that recovery thereunder was barred by section 14 of the Limitations Act (Ill.Rev.Stat.1969, ch. 83, par. 15). This appeal follows.

The first count was premised upon a breach of an implied warranty of the fitness of the product for a particular purpose as set forth in section 2--315 of the Uniform Commercial Code (Ill.Rev.Stat.1965, ch. 26, par. 2--315). It averred that notwithstanding this implied warranty Enovid caused serious and dangerous side effects upon the user, including constriction of blood vessels, and that neither defendant warned of this possibility; that on or about May 30, 1965, as a result of the breach of this warranty, plaintiff suffered a cerebral vascular accident (stroke) and paralysis of portions of her body after ingesting the drug; and that defendants received notice of the purported breach of warranty within a reasonable time. The second count, which was predicated upon a theory of strict liability in tort, asserted that the drug was unreasonably dangerous to its users for the specific reason heretofore mentioned; that this dangerous condition existed from the time the drug was manufactured; and that plaintiff did not learn that this drug caused her injury until June 1, 1967.

The primary issue presented for review is whether the four-year statute of limitations established by section 2--725(1) of the Code's sales article governs an action brought for personal injury allegedly arising from a breach of implied warranty. (Ill.Rev.Stat.1969, ch. 26, par. 2--725(1).) However, if that section is inapplicable and the cause of action premised on breach of an implied warranty might therefore be considered barred as having been untimely filed, plaintiff maintains that an action predicated on strict tort liability is not precluded by expiration of the general two-year statute of limitations of section 14. It is her position that this action did not accrue until she learned of the cause of the injury. Since it was alleged that she was unaware of the cause of her condition until June 1, 1967, she argues that the statute of limitations must be computed from that date to determine if the action was timely filed.

In pertinent part sections of the Code provide:

'Section 2--315. Implied Warranty: Fitness for Particular Purpose.

Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is * * * an implied warranty that the goods shall be fit for such purpose.' Ill.Rev.Stat.1965, ch. 26, par. 2--315.

'Section 2--318. Third Party Beneficiaries of Warranties Express or Implied.

A seller's warranty whether express or implied extends to any natural person who is in the family or household of his buyer or who is a guest in his home if it is reasonable to expect that such person may use, consume or be affected by the goods and who is injured in person by breach of the warranty. A seller may not exclude or limit the operation of this Section.' Ill.Rev.Stat.1965, ch. 26, par. 2--318.

'Section 2--715. Buyer's Incidental and Consequential Damages.

(2) Consequential damages resulting from the seller's breach include

(b) injury to person or property proximately resulting from any breach of warranty.' Ill.Rev.Stat.1965, ch. 26, par. 2--715(2).

'Section 2--719. Contractual Modification or Limitation of Remedy.

(3) Consequential damages may be limited to excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.' Ill.Rev.Stat.1965, ch. 26, par. 2--719(3).

'Section 2--725. Statute of Limitations in Contracts for Sale.

(1) An action for breach of any contract for sale must be commenced within 4 years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it.' Ill.Rev.Stat.1969, ch. 26, par. 2--725(1).

Section 14 of the Limitations Act, as pertinent to this appeal, states.

'Actions for damages for an injury to the person * * * shall be commenced within two years next after the cause of action accrued.' Ill.Rev.Stat.1969, ch. 83, par. 15.

Prior to the adoption of the Code in 1961, Illinois applied the general two-year statute of limitations (section 14) for personal injuries whether the action was premised on tort or implied warranty. This result was predicated upon the construction of section 14 which fixed the time limitation for personal injuries without concern for the form of action. Handtoffski v. Chicago Consolidated Traction Co. (1916), 274 Ill. 282, 113 N.E. 620; Seymour v. Union News Co. (1953), 349 Ill.App. 197, 110 N.E.2d 475.

Contrary to the Code's salutary attempt to establish uniformity among the various jurisdictions pertaining to matters subject to its provisions (Ill.Rev.Stat.1965, ch. 26, par. 1--102(2)(c)), it has been recognized that controversy prevails between the Code and the concept of strict liability in tort (Hawkins Construction Co. v. Matthews Co. (1973), 190 Neb. 546, 561, 209 N.W.2d 643, 653; Speidel, Products Liability, Economic Loss and the UCC, 40 Tenn.L.Rev. 309 (1973)). Section 2--725(1) of the Code has been subject to varying interpretations in jurisdictions confronted with the issue as to whether to apply its four-year limitation provision in situations similar to the present case where an action premised on strict tort liability might be maintained for personal injuries. Comparison of the recent decisions of the Oregon and New Jersey Supreme Courts illustrates the existing dichotomy. (Redfield v. Mead, Johnson & Co. (Or.1973), 512 P.2d 776, 780; Heavner v. Uniroyal, Inc. (1973), 63 N.J. 130, 142--143, 305 A.2d 412, 419; see also Editors' Note, 13 U.C.C. Reporting Service 471--72.) These decisions, and others therein cited, present a variety of reasons to sustain their particular positions.

The basic rule of statutory construction is to give effect to the intention of the legislature. (People ex rel. Hanrahan v. White (1972), 52 Ill.2d 70, 73, 285 N.E.2d 129.) In so doing the entire statute must be examined. (Coan v. Cessna Aircraft (1973), 53 Ill.2d 526, 528, 293 N.E.2d 588.) The aforementioned Code provisions clearly demonstrate the legislative intent to create a statutory cause of action for breach of implied warranty to afford consumer protection to those who sustain personal injuries resulting from product deficiencies. This remedy is distinct and in addition to that existing in strict tort liability as adopted in Suvada v. White Motor Co. (1965), 32 Ill.2d 612, 210 N.E.2d 182. (See Restatement (Second) of Torts, sec. 402 A, comment m, at 355--56 (1965).) Although liability predicated on strict tort liability and breach of implied warranty under the Code are similar, as hereafter discussed, the latter is more restrictive in certain respects.

Section 2--725(1) of the Uniform Commercial Code provides a four-year statute of limitation for commencement of an action for breach of Any contract for sale. Defendants have advanced various reasons in support of their interpretation that section 2--725(1) is not applicable to this case. Here, we find that the intention of the legislature has been expressed in clear and unmistakable language and the plain meaning of section 2--725(1) should be given effect. (Bovinette v. City of Mascoutah (1973), 55 Ill.2d 129, 133, 302 N.E.2d 313; Department of Public Works and Buildings v. Schon (1969), 42 Ill.2d 537, 539, 250 N.E.2d 135; Nordine v. Illinois Power Co. (1965), 32 Ill.2d 421, 429, 206 N.E.2d 709.) We therefore hold that section 2--725(1) sets forth the appropriate limitation period for personal injury actions predicated upon a breach-of-implied-warranty theory under the Code.

Even though the four-year limitation period is applicable to count I of the complaint, defendants raise other issues pertaining to deficiencies in count I. The Association argues that it was primarily a service organization which maintained a staff of physicians to give birth-control advice and the dispensation of birth-control pills was only an ancillary adjunct to performing that service. It concludes that it was merely performing an incidental service in distributing the drugs and was not engaged in selling these items as required by the Code. We cannot agree with this contention. The complaint alleged that the pills were sold to plaintiff. Moreover, a similar...