Simoniz Co. v. J. Emil Anderson & Sons, Inc.

• Decision Date: 04 April 1967
• Docket Number: Gen. No. 66--20
• Citation: 225 N.E.2d 161,81 Ill.App.2d 428
• Parties: SIMONIZ COMPANY, Plaintiff-Appellant, v. J. EMIL ANDERSON & SONS, INC., Wendnagel & Co., Inc., and Bethlehem Steel Company, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 161

225 N.E.2d 161

81 Ill.App.2d 428

SIMONIZ COMPANY, Plaintiff-Appellant, v. J. EMIL ANDERSON & SONS, INC., Wendnagel & Co., Inc., and Bethlehem Steel Company, Defendants-Appellees.

Gen. No. 66--20.

Appellate Court of Illinois, Third District.

April 4, 1967.

McKay, Moses, McGarr & Gibbons, Chicago, for appellant.

Gilbert T. Graham, Stevenson, Conaghan, Hackbert, Rooks & Pitts, Petit, Olin, Fazio & Safeblade, Chicago, Swaim & Dusenbury, Kankakee, for appellees.

ALLOY, Justice.

This is an appeal from an order of the Circuit Court of Kankakee County allowing a motion to dismiss, by each of three defendants, to a complaint filed by Simoniz Company as plaintiff as against J. Emil Anderson & Sons, Inc., Wendnagel & Co., Inc., and Bethlehem Steel Company, as defendants. This cause is, therefore, before us solely on the pleadings. In the complaint filed by Simoniz Company it sought to recover $18,995.21 for damage to property resulting from the collapse of a portion of the roof of its building.

The complaint consisted of seven counts. The first three counts were directed as against defendant J. Emil Anderson & Sons, Inc., the general contractor which built the building. In these counts there were charges of breaches of express and implied warranty and negligence. In the following two counts the defendant Wendnagel & Co., Inc., as the steel erection subcontractor (which had no direct contractual relationship to plaintiff Simoniz), was charged with breach of implied warranty and negligence. In the final two counts defendant Bethlehem Steel Company, as manufacturer and supplier of the bar joists in the roof of the building (which also had no direct contractual relationship with Simoniz), was charged with breach of implied warranty and negligence.

The complaint disclosed that the building had been completed in September 1953. In the complaint filed by Simoniz, it was asserted that the design, materials and workmanship of the roof were defective when finished in 1953. The roof segment collapsed on August 6, 1962. The complaint was filed on June 8, 1964. Each defendant filed a motion to dismiss on the ground that the action for property damage had not been filed within the time limited by law. The significant issue before this Court is whether or not, on the basis of the facts as set forth in plaintiff's complaint, such complaint was filed within the proper time limitation.

On appeal in this Court, plaintiff-appellant Simoniz contends that the lower court erred in sustaining the motions to dismiss as to each of the defendants on the basis that, in each case, the cause of action did not accrue at the time of the completion of the premises in September of 1953 (the date of completion of the building and its delivery). It contends that, since the defect in construction and manufacture of the building was latent and undiscoverable, the cause of action did not accrue until the defect resulted in manifest and visible damage, i.e. when the roof actually collapsed. Defendants all contend that the cause of action accrued in September of 1953, when construction was completed.

Defendant Anderson, the contractor, contends that the five year statute of limitation applies (1965 Illinois Revised Statutes, Ch. 83 § 16), and also that the ten year statute of limitation applies (Ch. 83 § 17) since the complaint was filed almost 11 years after the alleged negligent act or breach of contract. It is asserted in this connection that since there was no fraudulent concealment pleaded (1965 Illinois Revised Statutes, Ch. 83 § 23), that the cause of action accrued at the time of completion of construction and delivery of the building. Defendant Anderson also contends that the cause of action is barred by the provisions of Section 24f, Chapter 83, 1965 Illinois Revised Statutes, which provides for a four year period of limitation for persons performing or furnishing the design, planning, supervision or construction of an improvement to real estate. Anderson also contends that the action is barred by a provision of the written contract relating to a one year period of warranty. While we do not attach significance to this contention, in view of our determination in this case, we do not find it necessary to discuss such provision. Defendant Wendnagel set up the same defenses. Defendant Bethlehem Steel Company set up the defenses of statute of limitations and the protection of Section 24f of Chapter 83 hereinabove referred to.

It appears from the complaint that Anderson, as contractor, had undertaken by contract to erect a warehouse in Kankakee, Illinois, according to certain specifications. By the terms of this agreement, plans and specifications for this structure provided that the roof would be supported by jar joists. The bar joists were manufactured by Bethlehem. Anderson subcontracted with Wendnagel to perform the necessary steel erection work including the placement and welding of the bar joists. The structure was completed and accepted by Simoniz in September of 1953. At approximately 3:00 A.M. on August 6, 1962, a portion of the roof, being approximately 500 square feet in area, collapsed. The complaint states that the collapse of the roof was due in whole or in part to defects in workmanship, materials or design, one or the other, or all of the causes. It also avers that inspection of the roof after the collapse revealed defects in materials, workmanship and design. It was also alleged that the Bethlehem products contained defective welds, variations from specified dimensions and were otherwise defective.

It is emphasized that Simoniz first learned of the defects when the roof actually collapsed. It was necessary for Simoniz to employ experts to conduct an x-ray examination of the steel supports to determine the cause of the collapse. The inspection disclosed, apparently, that the roof collapsed because of latent defects in design, materials and workmanship. The complaint alleges specifically that the defects in design, materials and workmanship all contributed to the collapse of the roof and all defendants are charged with contributing to these defects and are alleged to be jointly and severally responsible for the damages sustained by Simoniz. For the purposes of consideration of this case, it is presumed that the defendants are at fault as alleged in the complaint and that damage was sustained as a result of the breaches of duty of the various defendants.

It is asserted by plaintiff that while the wrongful conduct took place in 1952 and 1953, no notice or knowledge of the wrongful conduct came to the attention of plaintiff until the damage actually occurred in 1962. In seeking to meet the issues directly, Simoniz asserts that its cause of action was not barred by the general statute of limitations in actions governing recovery for damage to property. It recognizes that the general statute of limitations for actions to recover for damage to property provides that the suit must be commenced within five years after the cause of action accrues (1965 Illinois Revised Statutes, Ch. 83 § 16). It is contended by appellant, however, that insofar as such statute is concerned the cause of action did not accrue on September 20, 1963, when the building was completed and accepted but on August 6, 1962, when the roof collapsed, and as a consequence the action was filed well within the five year period provided by such statute.

Appellant contends that where the nature of the wrong done is concealed or latent the statute does not begin to run until the party knows or should know that he has been injured. It is vigorously contended that this 'know or ought to know' rule should be applied. Appellant cites in support of this position Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (involving silicosis) and other related cases. Appellant also cites Mosby v. Michael Reese Hospital, 49 Ill.App.2d 336, 199 N.E.2d 633, where the court reluctantly adopted the prior Illinois malpractice decisions denying relief to a plaintiff. Appellant points out that the Illinois Legislature thereafter expressly adopted the 'know or ought to know' rule as to malpractice cases when the section was amended in 1965 (1965 Illinois Revised Statutes, Chapter 83 § 22.1). The legislature then provided that the period of limitation for filing an action for damages does not begin until the person actually knows or should have known of the facts of hurt and damage to his body and further provides, however, that no such action may be commenced more than ten years after such treatment or operation.

It is urged that this Court adopt an interpretation that the cause of action did not accrue in the instant case until the roof actually collapsed. In support of this position the appellant refers to certain cases from other jurisdictions and also to the line of cases which hold that a cause of action for negligently failing to shore up mining excavations does not accrue within the meaning of the statute of limitations until the surface actually subsides (Wanless v. Peabody Coal Co., 294 Ill.App. 401, 13 N.E.2d 996; Treece v. Southern Gem Coal Corp., 245 Ill.App. 113). In these cases, following the old English case of Bonomi v. Backhouse, 121 Eng. Reprint 652, the courts have felt that mining was of such nature that there could be no conceivable...