Pratt v. Sears Roebuck & Co.

• Decision Date: 11 May 1979
• Docket Number: No. 78-364,78-364
• Parties: , 28 Ill.Dec. 304 Ernest PRATT and Gertrude Pratt, Plaintiffs-Appellants, v. SEARS ROEBUCK & COMPANY, a corporation, and A. O. Smith Corporation, a corporation, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 471

390 N.E.2d 471

71 Ill.App.3d 825, 28 Ill.Dec. 304

Ernest PRATT and Gertrude Pratt, Plaintiffs-Appellants, v. SEARS ROEBUCK & COMPANY, a corporation, and A. O. Smith

Corporation, a corporation, Defendants-Appellees.

No. 78-364.

Appellate Court of Illinois, First District, Fifth Division.

May 11, 1979.

[28 Ill.Dec. 306] Irving B. Campbell, Arlington Heights, for plaintiffs-appellants

Sam L. Miller, Ltd., Chicago (Sam L. Miller, Michael W. Rathsack, Chicago, of counsel), for defendant-appellee, Sears, Roebuck & Co.

Schaffenegger, Watson & Peterson, Ltd., Chicago (Jack L. Watson, Chicago, of counsel), for defendant-appellee, A. O. Smith Corp.

WILSON, Justice:

Plaintiffs brought a suit against defendants alleging that they breached a contract entered into for the benefit of a group of individuals, including plaintiffs. The trial court granted defendants' motions to dismiss on the ground that the action was barred by the statute of limitations. On appeal, plaintiffs contend that their action should not have been barred and that they should be allowed to cure any defect in pleading by amendment. We affirm on both points raised.

On July 2, 1971, a gas fired water heater which plaintiffs had purchased from defendant Sears exploded and burst into flames, destroying plaintiffs' home and various household furnishings. In 1972, they brought a products liability suit against Sears alleging that Sears had breached their implied and express warranties that the water heater which they had installed was "suitable and reasonably fit for the use intended." Plaintiffs requested relief for property damages caused by the explosion and fire. On August 8, 1974, this suit was dismissed with prejudice because of plaintiffs' failure to respond to interrogatories.

On April 13, 1977, plaintiffs filed the instant suit against Sears and three named corporations who had manufactured and sold gas fired water heaters to Sears. Ultimately, two of the corporations were dismissed and plaintiffs' suit proceeded against Sears and A. O. Smith Corporation (herein Smith), the alleged manufacturer of the water heater purchased by plaintiffs. In an amended pleading, plaintiffs alleged that Smith had expressly warranted to Sears in a written contract that "said water heaters would be manufactured by it free of defects, safe, and suitable for use by customers of Sears in their homes." They claimed that this contract was a third party beneficiary contract for the benefit of Sears' customers and that Sears had a duty to enforce this contract on their behalf. Although not entirely clear from the pleading, plaintiffs apparently claimed that Sears breached the contract by failing to enforce its provisions and Smith breached On November 30, 1977, the trial court granted both defendants' motion to dismiss on the ground that plaintiffs had failed to file suit within the applicable statutes of limitations. In dismissing the case, the trial court noted that since discovery was available to plaintiffs in the earlier suit against Sears, no cause of action could be maintained against either defendant. Additionally, the trial court denied plaintiffs' motion to amend their complaint on the ground that discovery had been "available to plaintiffs in the 1972 complaint and therefore no fraudulent concealment exists."

[28 Ill.Dec. 307] the contract when they sold the water heater which proved to be unfit for its intended purpose. Also, they [71 Ill.App.3d 828] charged that Sears, individually and together with Smith, actively concealed Smith's name and refused to provide them with that information. They claimed that they only discovered Smith's name 30 days before they filed their suit. As was the case in plaintiffs' earlier suit against Sears, they requested relief for property damages caused by the explosion and fire.

OPINION

Plaintiffs contend that the statute of limitations does not bar their cause of action because their action did not accrue until they discovered the name of the manufacturer of the water heater. They also contend that if it is determined that their cause of action accrued on the date of the explosion, then they now should be allowed to bring this suit because defendants fraudulently concealed the cause of action. We disagree with both contentions.

Initially, we note that although plaintiffs characterize their present suit as a breach of contract action, based on their position as third party beneficiaries, we cannot tell from their complaint whether they are asserting strict liability upon a warranty concept or breach of an implied warranty. (See Lowrie v. City of Evanston (1977), 50 Ill.App.3d 376, 8 Ill.Dec. 537, 365 N.E.2d 923.) In addition to making allegations for breach of implied warranty, plaintiffs also have alleged that the water heater was unreasonably dangerous when sold and that as a result of its dangerous and defective condition, the water heater exploded and caught fire, destroying their home and various household furnishings. These latter allegations are strict liability allegations. Nonetheless, it does not matter whether plaintiffs' theory is strict liability or breach of implied warranty because their cause of action is barred by the statute of limitations.

There appear to be two statutes of limitation which could be applicable to plaintiffs' cause of action. The action could be subject to a 5 year statute for actions to recover damages for injury to property (Ill.Rev.Stat.1969, ch. 83, par. 16) or it could be subject to a 4 year statute for actions for breach of a contract for sale. (Ill.Rev.Stat.1969, ch. 26, par. 2-725.) The time period in both statutes begins to run when the cause of action accrues. A cause of action for property damages normally accrues on the date of injury (Folladori Indus., Inc. v. Sims Motor Transp. Lines, Inc. (1977), 51 Ill.App.3d 171, 9 Ill.Dec. 300, 366 N.E.2d 557) and a cause of action for breach of contract normally accrues on the date of breach of duty. West Am. Ins. Co. v. Sal E. Lobianco & Son Co., Inc. (1977), 69 Ill.2d 126, 12 Ill.Dec. 893, 370 N.E.2d 804.

In the instant case, plaintiffs' cause of action accrued as late as July 2, 1971, the date of the explosion and fire. Since plaintiffs filed their cause of action nearly six years after that date, their action would be barred under either the 5 or 4 year statute of limitations. Nonetheless, they contend that application of the "discovery rule" is warranted by the circumstances of this case.

The "discovery rule" allows a cause of action to accrue when a plaintiff knows or should have known of the existence of his or her right to sue. (Tom Olesker's Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc. (1975), 61 Ill.2d 129, 344 N.E.2d 160.) This rule will be applied when the ends of justice require a relaxation of the normal rules of accrual (Rozny v. Marnul (1969), 43 Ill.2d 54, 250 N.E.2d 656), but it will be applied circumspectly. (Praznik v. Sport Aero, Inc. (1976), 42 Ill.App.3d 330, 355 N.E.2d 686.) A plaintiff requesting application of the discovery rule must plead facts necessary to explain why the cause of action was not discovered sooner. (Chicago Park Dist. v. Kenroy, Inc. (1978), 58 Ill.App.3d 879, 15 Ill.Dec. 887, 374 N.E.2d 670.)

Plaintiffs have not pleaded facts which explain their failure to discover the existence of the contract sooner. They merely have pleaded that defendants have conspired to conceal...