West American Ins. Co. v. Sal E. Lobianco & Son Co., Inc.

• Decision Date: 30 November 1977
• Docket Number: No. 49171,49171
• Citation: 12 Ill.Dec. 893,69 Ill.2d 126,370 N.E.2d 804
• Court: Illinois Supreme Court
• Parties: , 12 Ill.Dec. 893 WEST AMERICAN INSURANCE COMPANY et al. v. SAL E. LOBIANCO & SON COMPANY, INC., et al. James PATTERMAN, Appellant, v. AETNA LIFE & CASUALTY COMPANY, Appellee.

Page 804

370 N.E.2d 804

69 Ill.2d 126, 12 Ill.Dec. 893

WEST AMERICAN INSURANCE COMPANY et al. v. SAL E. LOBIANCO & SON COMPANY, INC., et al.

James PATTERMAN, Appellant, v. AETNA LIFE & CASUALTY COMPANY, Appellee.

No. 49171.

Supreme Court of Illinois.

Nov. 30, 1977.

Gates W. Clancy, Geneva (James S. Mills, Geneva, of counsel), for appellant.

Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago (D. Kendall Griffith, Richard W. Sandrok, and Stanley J. Davidson, Chicago, of counsel), for appellee.

DOOLEY, Justice:

Plaintiffs, West American Insurance Company and Aetna Life and Casualty Company, as subrogees of their insureds, William P. and Mary W. Snellbaker, whose home had been burned, brought an action against Sal E. Lobianco & Son Company, Inc., a corporation and general contractor, and James Patterman, a masonry contractor. They alleged the fire resulted from negligence in the construction of the Snellbaker home.

Patterman's motion to dismiss, predicated on the bar of the statute of limitations requiring suit for injury to property to "be commenced within 5 years next after the cause of action accrued" (Ill.Rev.Stat.1973, ch. 83, par. 16), was granted. The dismissal order was made appealable pursuant to Rule 304(a) (58 Ill.2d R. 304(a)), and Aetna appealed. The appellate court reversed the summary disposition and remanded the cause for a trial on the merits. (43 Ill.App.3d 765, 2 Ill.Dec. 454, 357 N.E.2d 621.) We granted Patterman leave to appeal under our Rule 315 (58 Ill.2d R. 315).

On January 28, 1974, this complaint was filed. It alleged that the home was erected "prior to January 4, 1972," by Sal E. Lobianco & Son Company, Inc., as the general contractor, and by the defendant Patterman, as the masonry contractor.

In 1971 Mr. and Mrs. Snellbaker purchased the home. According to the complaint, on January 4, 1972, the Snellbakers started a fire in the fireplace, and the wall behind it broke into flames. As a result, the Snellbakers' home was demolished. Patterman, according to his affidavit in support of the motion to dismiss, worked on the fireplace in 1966 and 1967 but not beyond.

The issue before us is when did the cause of action accrue. If it was in 1967 when the defendant did the work, the right of action is barred by the statute. On the other hand, if the cause of action accrued when the fire occurred, the 1974 action was timely.

In dealing with a question involving a period of limitations, we should be aware of the attitude of this court towards statutes of limitation. In Geneva Construction Co. v. Martin Transfer & Storage Co. (1954), 4 Ill.2d 273, 122 N.E.2d 540, it was observed:

"Statutes of limitation, like other statutes, must be construed in the light of their objectives. The basic policy of such statutes is to afford a defendant a fair opportunity to investigate the circumstances upon which liability against him is predicated while the facts are accessible. That purpose has been fully served here. As observed by Mr. Justice Holmes in New York Central Railroad v. Kinney, 260 U.S. 340, 342, 43 S.Ct. 122, 67 L.Ed. 294, 'Of course an argument can by made on the other side, but when a defendant has had notice from the beginning that the plaintiff sets up and is trying to enforce a claim against it because of specified conduct, the reasons for the statute of limitations do not exist, and we are of opinion that a liberal rule should be applied.' " 4 Ill.2d 273, 289-90, 122 N.E.2d 540, 549.

So also in Tom Olesker's Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc. (1975), 61 Ill.2d 129, 132, 344 N.E.2d 160, it was said that the purposes of limitation periods are twofold: to require the bringing of actions within a reasonable time so that available evidence will not be impaired or lost, and, secondly, to discourage delay in bringing claims.

This is a tort action. The amended complaint alleges the duty of the particular defendant to exercise due care in the performance of his work, specific negligence and the fire and damage resulting therefrom, as well as due care on the part of the Snellbakers, whose cause of action plaintiffs, as subrogees, assert. It seems well established that a cause of action based on tort accrues only when all elements are present duty, breach and resulting injury or damage. (McClure v. Hoopeston Gas & Electric Co. (1922), 303 Ill. 89, 96, 135 N.E. 43.) But "(t)here can be no doubt that a cause of action accrues only when the forces wrongfully put in motion produce injury. Otherwise, in extreme cases, a cause of action might be barred before liability arose." Schmidt v. Merchants Despatch Transportation Co. (1936), 270 N.Y. 287, 300, 200 N.E. 824, 827.

The rule long established in this jurisdiction in a personal injury action arising out of negligence is that the cause of action accrues at the time of the injury. (Leroy v. City of Springfield (1876), 81 Ill. 114, 115-16.) So also in Williams v. Brown Manufacturing Co. (1970), 45 Ill.2d 418, 431-32, 261 N.E.2d 305, involving a strict liability action for a defective product, the same principle was applicable to a product, although it had left the manufacturer's possession long prior to the expiration of the limitation period.

In the case of the defective product negligently made, as distinguished from strict liability for the unreasonably dangerous product, there is no accrual of a right of action when the product is negligently made. The cause of action does not come into existence until someone has been injured or damaged. Sides v. Richard Machine Works, Inc. (4th Cir. 1969), 406 F.2d 445, 446; Rosenau v. City of New Brunswick (1968), 51 N.J. 130, 137, 238 A.2d 169, 172-73; Foley v. Pittsburgh-Des Moines Co. (1949), 363 Pa. 1, 38, 68 A.2d 517, 535; see Decaire v. Public Service Co. (1971), 173 Colo. 402, 407, 479 P.2d 964, 966; 3 A L. Frumer and M. Friedman, Products Liability sec. 39.01(2) (1977).

In an action for damage to property resulting from the subsidence of land due to inadequate support after mining, the limitation period begins from the time of the subsidence, not from the time of the mining. There is no injury until the land has subsided. Savant v. Superior Coal Co. (1955), 5 Ill.App.2d 109, 114, 125 N.E.2d 148; Wanless v. Peabody Coal Co. (1938), 294 Ill.App. 401, 406, 13 N.E.2d 996; Treece v. Southern Gem Coal Corp. (1923), 245 Ill.App. 113, 116-119, citing the British case of Backhouse v. Bonomi, 11 Eng.Rep. 825 (1861).

Other jurisdictions have reached the question posed here and have concluded that the cause of action for negligent construction or installation accrues at the time of injury. Welding Products v. S. D. Mullins Co. (1972), 127 Ga.App. 474, 478, 193 S.E.2d 881, 884 (negligent construction of a roof cause of action arose at time of collapse); Hunt v. Star Photo Finishing Co. (1967), 115 Ga.App. 1, 6, 153 S.E.2d 602, 605 (negligent construction of a roof which collapsed cause of action arose at time of collapse); White v. Schnoebelen (1941), 91 N.H. 273, 275, 18 A.2d 185, 187 (negligent installation of lightning rod causing fire cause of action did not accrue until injury).

The statute provides that an action of this character "shall be commenced within 5 years next after the cause of action accrued." (Ill.Rev.Stat.1973, ch. 83, par. 16.) We have seen that without accrual there can be no cause of action. And there is no cause of action until the injury or damage has occurred.

Unless the rule is that a cause of action accrues when the damage or injury is sustained, the tortfeasor would in many instances successfully assert that the wrong occurred at a time when the statute of limitations had already expired. This would hardly comport with fundamental fairness and simple justice. Translated to this situation, if the limitations period began at the time of the masonry contractor's negligent undertaking, the homeowners would have no right of action against a negligent third party with whom they had no contract. So also if no damage resulted from defendant's negligence, then there would be no right of action. Logic and law, not strangers to one another, lead to the same conclusion.

We recognize a difference in the statute of limitations where the tort arises out of a contractual relationship. There it commences at the time of the breach of duty, not when the damage is sustained. (Pennsylvania Co. v. Chicago, Milwaukee & St. Paul Ry. Co. (1893), 144 Ill. 197, 202, 33 N.E. 415.) The principal reason is that the breach itself is actionable. This rule encourages the party to act within five years of the breach rather than to delay until damages increase. Here, however, we have no question of privity, or contractual relationship, between the Snellbakers and this defendant.

The judgment of the appellate court reversing the judgment of dismissal and remanding for a trial on the merits is affirmed.

Judgment affirmed.

RYAN, Justice, dissenting:

I must respectfully dissent from the opinion of my colleagues. Not only do I disagree with the conclusion that the cause of action accrued when the house caught on fire but I also fail to see why the opinion failed to come to grips with what I conceive to be the very heart of this case, that is,...