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Allen v. Kewanee Machinery & Conveyor Co.

OCTOBER 10, 1974.

WAYNE ALLEN, PLAINTIFF-APPELLANT,

v.

KEWANEE MACHINERY AND CONVEYOR CO. ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Christian County; the Hon. GAIL E. McWARD, Judge, presiding.

MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:

This is an appeal by plaintiff, Wayne Allen, from orders entered by the circuit court of Christian County striking plaintiff's amended complaint and granting a summary judgment in favor of parties defendant, Kewanee Machinery and Conveyor Co., a corporation, and Schwab and Weakly, Incorporated, a corporation (now Weakly and Hunter, Inc.).

The plaintiff commenced this litigation by filing a three-count complaint against parties defendant. The complaint alleged the manufacture and sale of a portable auger which was "* * * in an unreasonably dangerous defective condition in that it was of defective design and so constructed as to cause the upper portion of the same to tip on its wheels as the last portion of grain was being emitted from the upper end thereof."

The defendant Kewanee Machinery and Conveyor Co. was the manufacturer of the auger and Schwab and Weakly, Inc., was the seller. An auger is a device used in the moving and lifting of grain. Grain is placed into one end of the auger and the grain is then, by mechanical means, conveyed a distance by the auger to a point where the grain is emitted from the discharge point of the auger. Among other things, augers are used to lift the grain to put it in storage. Thus, the plaintiff contends that when the grain is being lifted, the auger, through which the grain is being moved, can become dangerous because when there is grain only in the emitting end of the auger, the entire auger becomes unstable.

For the purpose of clarity the plaintiff, Wayne Allen, shall hereinafter be referred to as the plaintiff and the defendant Kewanee as the manufacturer and the defendant Schwab and Weakly as the seller.

The seller filed a motion to dismiss two of the plaintiff's counts. This motion was denied and thereafter the defendants pursuant to the court's order filed their answers. Defendants have not filed a cross-appeal. We are not asked to pass on the propriety of the denial.

After discovery the defendants filed motions for summary judgment. The plaintiff filed a motion to strike the motions. These motions were heard and the matter was taken under advisement. The seller on the day of the hearing filed a "Supplement to Motion for Summary Judgment" asserting that the complaint failed to state a cause of action because this State does not recognize strict liability in tort for negligent design. This motion was heard and continued to allow for the filing of briefs. Prior to the argument of said motions, the plaintiff filed an amended complaint adding additional counts to his original complaint.

The plaintiff did not obtain leave of the court to which this case has been assigned, but instead obtained consent from another judge. This was done without notice to the defendants.

The defendants then filed their motions to strike the amended complaint asserting that the added counts were barred by the statute of limitations. Arguments were heard and on November 29, 1973, the court entered its order striking the added counts because of the statute of limitations. Then on January 8, 1974, the court granted the defendant's motion for summary judgment.

From the orders of the circuit court of Christian County striking the amended complaint and the summary judgment granted in favor of parties defendant the plaintiff has brought this appeal.

The issues for review by this court are all based upon the pleadings of the cause. There are but two issues for review. The first being whether there is an action for defective design of a product under the Illinois' law of strict liability in tort. The second is whether an amended complaint adding alternative counts pleading separate theories of recovery based upon the same set of facts is barred by the statute of limitations where the original complaint was filed within the applicable statutory period.

The trial court determined that the first issue is controlled by the case of Mieher v. Brown, 3 Ill. App.3d 802, 278 N.E.2d 869, reversed on other grounds, 54 Ill.2d 539, 301 N.E.2d 307. The court concluded that the Mieher case holds that there is no cause of action in this State for strict liability in tort for defective design.

The Mieher case involved an automobile truck collision wherein the administrator of the estate of the deceased automobile driver brought suit against the manufacturer of the truck. The plaintiff contended that the truck was negligently designed permitting plaintiff's decedent to drive under the truck after colliding with the truck from the rear and thereby allowing the truck bed to go through the automobile windshield killing the automobile driver. This court stated in that same case, Mieher v. Brown, 3 Ill. App.3d 802, 804-805, 278 N.E.2d 869, 872:

"To put the matter bluntly, there is no cause of action in this state for strict liability in ...


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