Appeal from the Circuit Court of Cook County; the Hon. HARRY
G. HERSHENSON, Judge, presiding. Affirmed.
MR. PRESIDING JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.
Rehearing denied and supplemental opinion May 2, 1968.
This is a products liability case. The defendant, a merchant in the hardware and building supply business, appeals from a $45,000 judgment entered against him after a jury returned a verdict in favor of the plaintiff.
The principal points on appeal center around the applicability of the strict liability in tort doctrine to a seller of a simple object a nail made for the penetration of concrete and mortar. There are lesser points relating to alleged trial errors which will be discussed later in the opinion.
The plaintiff was a carpenter employed by Hartman-Sanders Company a millwork firm engaged in remodeling a restaurant. In the course of his work it became necessary to attach wood furring strips to a wall composed of brick and mortar. For this purpose he used special nails supplied by his foreman who had purchased them that same day at the defendant's store. The foreman had asked a salesman for "cut" nails but the defendant was out of them and the foreman was told that they had something as good if not better than cut nails: a concrete nail. A cut nail is square in shape and tapered towards the bottom. A concrete nail is round like an ordinary nail; however, it is harder, heavier and more resistive to bending pressure than an ordinary nail. The foreman ordered five pounds of the concrete nails and they were scooped out of an open bin and put into a brown paper bag.
As the plaintiff struck the nails with his hammer, the heads of the first three or four broke off and shot across the room. As he attempted to drive the next nail into the mortar it shattered and a piece struck him in the left eye and blinded him. Prior to the occurrence he had perfect vision in both eyes. At the time of the trial he could see light and bright colors but was unable to discern shapes with his left eye.
At the outset there is presented the defendant's objection to a pleading-procedural aspect of the case. The complaint sought recovery on three theories: negligence, express warranty and implied warranty. At the close of the plaintiff's case and at the termination of the trial the defendant moved for a directed verdict on the ground that none of the theories had been sustained by the evidence. The two motions were denied. The defendant renewed the contention in his post-trial motion and it was again denied. The plaintiff was then permitted to supplement his complaint by the addition of a strict liability in tort allegation. The defendant contends that since each of his motions should have been granted the supplemental allegation came too late.
[1-5] First of all, the plaintiff had introduced evidence which tended to prove each of his theories and the evidence was sufficient to justify their submission to the jury. Therefore, the trial court ruled correctly in denying the defendant's motions. Second, the allegations of the complaint were adequate, in and of themselves, to sustain a recovery under the strict liability theory and an instruction on this theory had been given to the jury. A failure to specifically allege strict liability does not necessarily make a complaint deficient. Haley v. Merit Chevrolet, Inc., 67 Ill. App.2d 19, 214 N.E.2d 347 (1966). In Haley the court had before it a complaint which charged negligence, express warranty and implied warranty. The court said:
"It is true that none of the counts base a claim for recovery on the Suvada [Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182 (1965)] theory of strict liability in tort. But the complaint in Suvada itself fails to do so, and yet the Supreme Court affirmed the Appellate Court's holding that the complaint stated a cause of action. There, as here, the complaint based its claim for relief upon theories of negligence and of implied warranty. The failure to state clearly the Suvada theory therefore does not make the complaint insufficient."
Third, the Civil Practice Act provides that pleadings may be amended at any time, before or after judgment, to conform to the proof. Ill. Rev Stats 1965, c 110, § 46(3). The complaint was filed before the Suvada decision which approved strict liability in tort. The supplement was filed after that decision became final. The complaint was thus revised by definitively adding an up-to-date theory of recovery to those already pleaded, which theory conformed to the proof already adduced. The trial court did not err in permitting the amendment.
The Suvada decision emphasized that in order to recover under the strict liability theory a plaintiff, who claims that he was injured by reason of a defective product, must prove that his injury resulted from a condition of the product, that the condition was an unreasonably dangerous one and that the condition existed at the time it left the manufacturer's control. The defendant contends that the plaintiff did not meet the standards of proof required by Suvada and that strict liability does not apply to a retailer.
The latter contention cannot be upheld. In Suvada strict liability was applied to a manufacturer but the court noted that liability extends to a seller of a defective product. In Haley v. Merit Chevrolet, Inc., previously cited, and in McKee v. Brunswick Corp., 354 F.2d 577 (7th Cir 1965), a case interpreting Illinois law, strict liability was applied to retailers. The rationale behind this application is aptly set forth in Vandermark v. Ford Motor Co., 61 Cal.2d 256, 37 Cal Rptr 896, 391 P.2d 168 (1964):
"Retailers like manufacturers are engaged in the business of distributing goods to the public. They are an integral part of the overall producing and marketing enterprise that should bear the cost of injuries resulting from defective products. [Citation.] In some cases the retailer may be the only member of that enterprise reasonably available to the injured plaintiff. . . ."
Before a consumer can recover from a retailer he must prove that: the retailer sold the product, the product was defective, the defect made the product unreasonably dangerous, the defect was in the product when it was sold by the retailer, the consumer used the product for the purpose it was intended and in the way it was intended to be used or for a purpose and in a way that was reasonably foreseeable, and the defective product caused his injury. In the present case there is no dispute as to three of these elements. The plaintiff was injured by the nail, the nail was sold by the defendant and, if there was a defect, it was in the nail at the time it was sold. Moreover, the plaintiff was using the nail for a proper purpose and there was adequate proof that he was using it in a proper manner. The nail was designed to facilitate the affixing of other objects to concrete or mortar and this is precisely the use the plaintiff made of it. He testified that he was hitting the nails squarely and demonstrated his method of hammering them to the jury. However, other witnesses testified that concrete nails are brittle, have a tendency to break rather than bend and that such nails must be struck exactly on the head and hammered in straight to keep them from breaking and "go[ing] like bullets" in different directions. This testimony implied that perhaps he was not striking the nails correctly. At most, the implication presented a question of fact for the jury's determination.
To prove that the nail was defective, the plaintiff called as an expert witness a metallurgical engineer. The witness testified that he made a random selection of one dozen nails from the brown paper bag and subjected them, and some nail fragments which were in the bag, to a battery of tests. All of the tests were not performed on the fragments for fear of destroying them.
The tests indicated that there were two types of nails and these were separated into groups A and B for identification purposes. Group A consisted of three nails and group B of nine. The nails in group A were ductile and bent to 180 degrees. The nails in group B were brittle and fractured when subjected to a bend test. When a microhardness test was performed the nails in group A displayed a uniform hardness throughout each nail (a Rockwell test hardness of 41C), while those in group B were much harder on the surface than at the core (a Rockwell test of 63C on the surface, 21C at the core).
A chemical analysis was performed and seven common elements compared. All of the elements were found to exist in relatively the same proportion in the two groups with the exception of carbon which was twice as high in those nails belonging to group A than in the nails belonging to group B. It was the opinion of the witness that this difference accounted for the brittleness of the nails in group B and that the variance between the carbon composition of the two groups occurred during the manufacture of the nails when those in group B were given an improper heat treatment and surface carbon was lost due to overheating. He further testified that microscopic tests indicated that the fragments (which had been found on the floor of the room in which the plaintiff was ...