APPEAL from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County;
the Hon. JOSEPH J. DRUCKER, Judge, presiding.
MR. JUSTICE HOUSE DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 27, 1965.
"The subject of implied warranties on the sale of chattels has perplexed the Common Law Courts for a long time, and has been a source of many apparently contradictory decisions." (Misner v. Granger, 4 Gilm. 69.) This statement by Mr. Justice Caton in 1847 echoes down to us today as this case comes before us on a certificate of importance from the Second Division of the Appellate Court, First Judicial District. (Ill. Rev. Stat. 1963, chap. 110, par. 75(2)(a).) Specifically, the question presented is whether the manufacturer of a component part is liable to a subpurchaser for sums of money the subpurchaser has paid to settle claims against him by persons who were injured and whose property was damaged as a result of the defective condition of the component part.
The appeal is from an order dismissing certain counts of plaintiffs' complaint in which there is a finding that there is no just reason for delaying enforcement or appeal of the order. (Ill. Rev. Stat. 1963, chap. 110, par. 50(2).) Therefore, all facts well pleaded will be taken as true. The plaintiffs Steven Suvada and John Konecnik are partners engaged in the business of buying, selling and distributing milk in Cook County. On February 11, 1957, they purchased a used reconditioned tractor unit from defendant White Motor Company. The brake system for the tractor was manufactured by defendant Bendix-Westinghouse Automotive Air Brake Company and installed by White. On June 24, 1960, the brake system failed and the tractor collided with a Chicago Transit Authority bus causing a number of injuries to the bus passengers and considerable damage to the bus and the plaintiffs' tractor-trailer milk truck.
On June 21, 1962, plaintiffs filed this action against White and Bendix to recover the costs they incurred in repairing their tractor-trailer unit, repairing the bus and in their settlement of personal injury claims by the bus passengers. Included in the damages for settling the personal injury claims are the costs of legal services and investigation.
The trial court held that plaintiffs had stated causes of action for damages to their tractor-trailer unit against White on the basis of breach of implied warranty and negligence and against Bendix on the basis of negligence, but dismissed the counts for damage to the bus, personal injury claims and expenses. On appeal by the plaintiffs the Appellate Court held that plaintiffs had stated causes of action for all elements of damage pleaded against White and Bendix on the basis of breach of an implied warranty. (Suvada v. White Motor Co. 51 Ill. App.2d 318.) Only Bendix seeks review of this holding.
The theory advanced by Bendix is essentially: (1) That any warranty as to its product runs to White and that plaintiffs cannot recover for a breach of this warranty because they are not in privity with Bendix. (2) That any liability of Bendix to plaintiff must therefore be based on its negligence, but it cannot be held liable to plaintiff for the costs of settling the injury claims because: (a) If Bendix was solely negligent in manufacturing the brake system, then plaintiffs were not responsible for the accident and they acted as volunteers in settling the injury claims and the damage claim for the bus; (b) if, on the other hand, Bendix was negligent and plaintiffs were also responsible for the accident, it would be because plaintiffs were also negligent; thus, Bendix and plaintiffs would be joint tort-feasors and plaintiffs cannot seek contribution from their joint tort-feasor.
"If there is any question of law which can truly be called characteristic of products liability litigation it is the question of privity of contract that is, whether there can be recovery for injury caused by a product against a manufacturer or seller who had sold the product, where the person who suffered the injury was not a party to the sale and hence is not in privity of contract with the manufacturer or seller sought to be held liable." (1 Hursh, American Law of Products Liability, 510 (1961).) The history of the privity requirement in a negligence action and the broad exceptions to the "rule" have been stated so often that there is no need to repeat it. See Postilion, Products Liability: The Negligence Theory, 53 I.B.J. 562 (1965); Metzger, The Social Revolution in Products Liability, 49 I.B.J. 710 (1961); James, Products Liability, 34 Texas L. Rev. 192 (1955); Jeanblanc, Manufacturers' Liability to Persons Other Than Their Immediate Vendees, 24 Va. L. Rev. 1934 (1937); Feezer, Tort Liability of Manufacturers, 19 Minn. L. Rev. 752 (1935); Russel, Manufacturers' Liability to the Ultimate Consumer, 21 Ky. L.J. 388 (1933); Bohlen, Liability of Manufacturers to Persons Other Than Their Immediate Vendees, 45 L.Q. Rev. 343 (1949).
It is sufficient to point out that the privity requirement as enunciated in 1842 in Winterbottom v. Wright, 10 Mees. & W. 109, 152 Eng. Reprint 402, and the broad exceptions thereafter carved into the rule by such leading cases as Thomas v. Winchester, 6 N.Y. 397, 57 Am. D. 455; Coughtry v. Globe Woolen Co. 56 N.Y. 124, 15 A.R. 387, and Langridge v. Levy, 2 Mees. & W. 519, 150 Eng. Reprint 863, had become well established (see Huset v. J.I. Case Threshing Machine Co. (8th cir.) 121 Fed. 865) when the question was first presented in this State in 1912 in Davidson v. Montgomery Ward & Co. 171 Ill. App. 355. The Davidson case adopted the "general rule" that a contractor, manufacturer or vendor is not liable (regardless of his negligence) to third parties who have no contractual relations with him. The three recognized exceptions to the rule requiring privity were also adopted, namely, (1) where the negligence of a manufacturer or vendor is with reference to an article imminently dangerous to human life or health, (2) where an owner's negligence causes injury to one invited on the premises, and (3) where one knowing the qualities of an article which are imminently dangerous to life or health sells the article without notice of these qualities.
In 1934 this court in Rotche v. Buick Motor Co. 358 Ill. 507, recognized the "general rule" requiring privity of contract in a negligence action against a manufacturer as well as the exception that no privity is required where the manufacturer's alleged negligence produces an article imminently dangerous to human life or health. The Rotche case approved and adopted the reasoning of the celebrated MacPherson v. Buick Motor Co. 217 N.Y. 382, 111 N.E. 1050, (1916) which had expanded the concept that imminently dangerous articles such as explosives, poisons and other things which in their normal operation are implements of destruction, to the concept that any article negligently manufactured, which is reasonably certain to place life and limb in peril, is a thing of danger.
We agree with the reasoning of the Massachusetts court in Carter v. Yardley & Co. 319 Mass. 92, 64 N.E.2d 693, 164 A.L.R. 559, where it observed: "The MacPherson case caused the exception to swallow the asserted general rule of non-liability, leaving nothing upon which that rule could operate. Wherever that case is accepted, that rule in truth is abolished, and ceases to be part of the law," (319 Mass. 92, 103, 64 N.E.2d 693, 700.) Implicit in Lindroth v. Walgreen Co. 407 Ill. 121, was the view that the general rule, rather than the exception to a so-called "general rule", is that a manufacturer may be liable for injuries to a person not in privity with him and that such liability is governed by the same principles governing any action for negligence. (See Gray v. American Radiator and Standard Sanitary Corp. 22 Ill.2d 432; cf. Watts v. Bacon & Van Buskirk, 18 Ill.2d 226.) That defendant understood this to be the rule is shown in its reply brief when it stated "Where negligence is the basis of the action, let us not permit talk of privity, for it is neither necessary, nor proper." We now make explicit that which was implicit in Lindroth, lack of privity is not a defense in a tort action against the manufacturer.
In addition to the manufacturer, liability in tort for a defective product extends to a seller, (Lindroth v. Walgreen Co. 407 Ill. 121,) a contractor, (Paul Harris Furniture Co. v. Morse, 10 Ill.2d 28,) and a supplier, (Watts v. Bacon & Van Buskirk, 18 Ill.2d 226,) one who holds himself out to be the manufacturer, (Lill v. Murphy Door Bed Co. 290 Ill. App. 328,) the assembler of parts (Rotche v. Buick Motor Co. 358 Ill. 507) and the manufacturer of a component part. (Gray v. American Radiator and Standard Sanitary Corp. 22 Ill.2d 432.) Lack of privity of contract not being a defense in a tort action against the manufacturer, it is not a defense in an action against any of these parties.
This brings us to the question of the nature of the manufacturer's liability. As early as 1847 this court approved of the holding in Van Bracklin v. Fonda, (N.Y. 1815) 12 Johnson, 468, 7 Am. D. 339, that there is an implied warranty (strict liability) in the sale of food. (Misner v. Granger, 4 Gilm. 69.) Dean Prosser has traced the theory of strict liability in the sale of food to the year 1431. (Prosser, Assault on the Citadel, 69 Yale L.J. 1099.) In Wiedeman v. Keller, 171 Ill. 93, it was held that a seller of food is strictly liable for the unwholesome condition of the food he sold. That the imposition of strict liability for the sale of unwholesome food was based solely on the ground of public policy was made clear when the court stated: "Where, however, articles of foods are purchased from a retail dealer for immediate consumption, the consequences resulting from the purchase of an unsound article may be so serious and may prove so disastrous to the health and life of the consumer that public safety demands that there should be an implied warranty on the part of the vendor that the article sold is sound and fit for the use for which it was purchased." 171 Ill. 93, 99.
Although this court has held that an action for breach of warranty is an action ex contractu and can only be maintained by a party to the contract, (Paul Harris Furniture Co. v. Morse, 10 Ill.2d 28,) we have recognized that privity of contract is not essential in an action for breach of implied warranty in the sale of food. (Tiffin v. Great Atlantic and Pacific Tea Co. 18 Ill.2d 48.) The Appellate Court has sanctioned actions for breach of warranty in a food case by a party not in privity with the seller or the manufacturer, on the ground that the implied warranty of the manufacturer or seller runs with the sale of the article. (Welter v. Bowman Dairy Co. 318 Ill. App. 305; Patargias v. Coca-Cola Bottling Co. 332 Ill. App. 117.) One author has listed twenty-nine different theories that have been advanced to justify an action for breach of warranty in the sale of food by a party not in privity with the seller or manufacturer. (Gillam, Products Liability in a Nutshell, 37 Ore. L. Rev. 119, 153-155 (1957).) We agree, however, with the forthright statement of the Texas court in Decker & Sons v. Capps, 139 Tex. 609, 617, 164 S.W.2d ...