Siemen v. Alden

• Decision Date: 23 December 1975
• Docket Number: No. 74--103,74--103
• Parties: , 18 UCC Rep.Serv. 884 Roland SIEMEN, Plaintiff-Appellant, v. Verna R. ALDEN, Executor of the Estate of Lloyd G. Alden, Deceased, and L. G. Alden Machine Co., Defendants, Edwin Korleski, d/b/a Rock River Sawmill & Rock River Sawmills, Inc., a corp., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 713

341 N.E.2d 713

34 Ill.App.3d 961, 18 UCC Rep.Serv. 884

Roland SIEMEN, Plaintiff-Appellant, v. Verna R. ALDEN, Executor of the Estate of Lloyd G. Alden Deceased, and L. G. Alden Machine Co., Defendants Edwin Korleski, d/b/a Rock River Sawmill & Rock River Sawmills, Inc., a corp., Defendants-Appellees.

No. 74--103.

Appellate Court of Illinois, Second District, Second Division.

Dec. 23, 1975.

Winston & Strawn, Edward J. Wendrow, R. Lawrence Storms and Stephen C. Bruner, Chicago, Miller & Hickey, Francis E. Hickey, Rockford, for plaintiff-appellant.

Williams, McCarthy, Kinley, Rudy & Picha, Edward R. Telling, III, Rockford, for defendants.

THOMAS J. MORAN, Justice.

Plaintiff sued defendants to recover for injuries he sustained while operating an automated multi-rip saw. The three-count complaint sought recovery on theories of strict tort liability for sale of a defective product, breach of warranties, and negligence. Plaintiff proceeds on this appeal against defendant Korleski only. He appeals the order of the trial court granting defendant's motion for summary judgment on count one, alleging strict tort liability, and count two, alleging breach of warranties.

Plaintiff had owned and operated a sawmill since 1961. In 1968, he decided to purchase a multi-rip saw to increase his production of decking pallets. Upon the suggestion of a customer, plaintiff contacted Lloyd G. Alden, manufacturer of the saw in question. Alden informed plaintiff that a new saw could not be delivered in less than six months and suggested that plaintiff contact defendant Korleski, who owned two of the Alden saws. Plaintiff contacted defendant, who advised him that he indeed had two saws: the one he was currently using, and an older one purchased in 1962 which had not been used since 1965. Thereafter the parties met on two occasions at defendant's sawmill to discuss plaintiff's possible purchase of the older saw. At the first meeting, defendant demonstrated the newer saw, which operated in the same manner as the one plaintiff was considering purchasing. Plaintiff's son accompanied him to the second meeting, at which time plaintiff was first shown the saw in question. It was sitting, partially dismantled, in a corner and was covered with boards and sawdust. Defendant informed plaintiff that it was in operating condition and that plaintiff would have to supply and install saw blades, motor, shiv, belts, pulleys, and a sawdust removal apparatus in order to use it. Thereafter, the parties agreed on a purchase price of $2900.

Plaintiff's injury, which precipitated the instant suit, occurred in 1970 when a cant of wood exploded while being fed through the saw in question.

On appeal, plaintiff contends that summary judgment in favor of defendant should be reversed because (1) defendant had a sufficient relationship to the saw which injured plaintiff to subject him to strict liability for sale of the defective product, and (2) under the Uniform Commercial Code, Sections 2--314 and 2--315 (Ill.Rev.Stat.1971, ch. 26, §§ 2--314, 2--315), the defendant is liable for implied warranties.

In Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182 (1965), the Illinois Supreme Court adopted the provisions of section 402A of the Restatement (Second) of Torts (1965), which states:

'Special Liability of Seller of Product for Physical Harm to User or Consumer

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his product, and

(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.'

The plain language of the rule limits the application to a seller engaged in the business of selling the product which proved defective. This limitation is buttressed by the comment accompanying the rule in that the occasional seller is explicitly excluded. (Restatement (Second) of Torts, Comment I at 350. See 55 Ill.B.J. 906 (1967).) Plaintiff contends that because the sale of the saw occurred within the scope and conduct of defendant's business, and because defendant modified the machine to suit his own purposes, thereby creating the condition which led to plaintiff's injury, defendant had a relationship to the saw sufficient to subject him to strict liability. Plaintiff's argument fails to overcome the clear requirement of the rule that the seller be engaged in the business of selling the particular product. In the instant case, defendant asserted and plaintiff has not denied that defendant's only sale of a saw or sawmill equipment was to plaintiff. It is therefore apparent that the sale is an isolated transaction and does not come within the provisions of 402A. Balido v. Improved Machinery, Inc., 29 Cal.App.3d 633, 640, 105 Cal.Rptr. 890, 895 (1972).

Plaintiff claims that under sections 2--314 and 2--315 of the Uniform Commercial Code (Ill.Rev.Stat.1971, ch. 26, §§ 2--314, 2--315) a genuine issue of material fact exists as to defendant's liability arising from his saw-related knowledge and skill, and plaintiff's ultimate reliance upon this knowledge in purchasing the saw. Section 2--314 states in pertinent part:

'Unless excluded or modified * * * a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind.'

Section 2--104(1) of the Uniform Commercial Code (Ill.Rev.Stat.1971, ch. 26, § 2--104(1),) defines a merchant as:

'(A) person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill.'

Defendant argues in his reply brief that plaintiff falls within the terms of ...