Appeal from the Superior Court of Cook County; the Hon.
MATTHEW J. HARTIGAN, Judge, presiding. Reversed and remanded with
MR. PRESIDING JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.
Rehearing denied October 4, 1962.
This action was commenced by the plaintiffs, Paul O. Dittmar and his wife, Eugenie K. Dittmar, owners of a newly constructed house in Evanston, Illinois, against a general contractor, a plastering subcontractor, the plastering supplier, and the manufacturer of the plastering materials used, to recover damages for the failure of the plaster. A non-jury trial resulted in a judgment against Silbrico Corporation, the manufacturer, in the amount of $14,043.51; all other parties were found not guilty. Silbrico appeals from that judgment and the Dittmars filed a cross appeal from that portion of the judgment order finding William S. Ahern, defendant, general contractor, and Michael Grady, Inc., defendant, plastering subcontractor, not guilty. No appeal was taken against the dismissal of O'Laughlin Material Co., defendant, plastering supplier.
On April 14, 1950, the Dittmars, as owners of the premises in Evanston, Illinois, contracted with Ahern for the construction of a residence at a cost of $36,894. Ahern subcontracted the plastering job to defendant Grady who purchased some of the materials used on this job from O'Laughlin, part of which was perlite, a lightweight aggregate manufactured by defendant, Silbrico, and sold by it under the trade name of "Ryolex." The house was turned over to the plaintiffs for occupancy on April 20, 1951. Later the plaster on the walls and ceilings cracked and upon the failure of Ahern and Grady to correct the condition and after numerous complaints were made and the defects not remedied, plaintiffs employed another general contractor, who determined that the plaster throughout had failed and subsequently in April, 1954, substantially all of it was removed and the job replastered. On June 30th, 1954, plaintiffs filed suit against the four named defendants for damages.
Paragraph seven of the complaint against Silbrico charged that: . . . the mixing and manufacturing instructions furnished by [Silbrico] were improper and incorrect so that the plaster in plaintiffs' said residence did not properly adhere when made with the product manufactured and sold by said defendant Silbrico Corporation, and mixed and proportioned according to defendant's instructions, but cracked, blistered, peeled, crumbled and became delaminated and otherwise became defective and dangerous and failed to provide a useful and satisfactory wall surface.
The complaint against Ahern, which included the construction agreement, the general conditions of the contract and supplementary general conditions (specifications), charged that Ahern: . . . did not faithfully keep and perform [the construction agreement] but, on the contrary, failed to comply with manufacturer's directions as to proportioning and mixing the plaster ingredients and the plastered walls and ceilings were faulty, defective, wholly unsatisfactory and not in accordance with the provisions of the contract and the warranties and guarantees therein . . .
The complaint against Grady, after reciting that Grady had entered into an agreement with Ahern to do the lathing and plastering pursuant to the construction agreement, general conditions and specifications, charged Grady with the following acts of negligence:
(a) Carelessly, negligently and improperly mixed and proportioned the various ingredients of the plaster to be applied to the walls and ceilings of plaintiffs' residence,
(b) Carelessly, negligently and improperly failed to follow manufacturer's directions as to the mixing and proportioning of the plaster ingredients,
(c) Applied said plaster to the walls and ceilings of plaintiffs' said residence in a careless, negligent and unworkmanlike manner.
The plastering done in the Dittmar residence was three coat plaster which consists of a base or scratch coat, a brown coat (actually a second base coat) and a finish coat. Each coat is applied separately, after the prior coat has hardened. An aggregate is an essential ingredient of plaster. The three available were sand, vermiculite or perlite. Vermiculite and perlite being much lighter than sand are referred to as lightweight aggregates. When sand is used as an aggregate the plaster must be mixed outdoors, whereas lightweight aggregates, sold in bags and easy to handle, allow the mixing to be done indoors. Since the Dittmar residence was to be plastered in the winter, a lightweight aggregate was used to eliminate the risk of having the plaster freeze after it has been mixed. As the plaster sets and the moisture evaporates, stresses develop.
The Dittmars urge that the judgment be affirmed against Silbrico on the grounds that Silbrico failed to provide clear understandable instructions for the use of Ryolex; that Silbrico knew or should have known of the inherent danger of its product and was negligent in failing to give an adequate warning of the danger and that Silbrico was negligent in failing to use reasonable care in testing its product. In addition, they urge reversal for the judgment for Ahern and Grady on the grounds that they were negligent in not following Silbrico's instructions, and that they were guilty of a breach of express warranty.
At the outset we are confronted with the question of liability on the part of defendant, Silbrico. This defendant contends that there is no privity or contractual relations between the parties and that there is no liability for the negligent manufacture of its product in the absence of proof that it was inherently dangerous or would become so if negligently made or that Silbrico made fraudulent statements or misrepresentations.
In Illinois the general rule is that the manufacturers are not liable in damages to persons with whom there is no privity or contractual relations for property damages sustained by such persons because of the negligent manufacture of the former's product. Rotche v. Buick Motor Co., 358 Ill. 507, 193 NE 529; Day v. Barber-Colman Co., 10 Ill. ...