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Hebel v. Sherman Equipment

OPINION FILED OCTOBER 8, 1981.

ROHN HEBEL, PLAINTIFF-APPELLANT,

v.

SHERMAN EQUIPMENT, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR SULLIVAN, Judge, presiding.

MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Plaintiff, Rohn Hebel, appeals from an order of the circuit court of Cook County granting summary judgment in favor of defendant, Sherman Equipment. *fn1 Plaintiff's strict liability action seeks damages for an injury allegedly caused by a defective conveyor drive chain mechanism which admittedly defendant did not manufacture or sell. On appeal, plaintiff contends that a material question of fact exists as to whether defendant held itself out to be the manufacturer of the conveyor drive chain mechanism and therefore can be held strictly liable as the apparent manufacturer of the conveyor mechanism.

We reverse and remand. The pertinent facts follow.

Plaintiff's amended complaint filed on July 31, 1978, alleges that on February 22, 1976, plaintiff, who was then 16 years old, was employed by the Glenbrook Standard Station and Car Wash (Glenbrook). His employment necessitated working "on or about" the automatic car washing machinery. This machinery, the amended complaint charged, was designed, manufactured and sold by defendant in a defective and unreasonably dangerous condition in that there was a hole in the cover of the conveyor drive chain mechanism. Although the hole was uncovered, the machinery remained operating. Plaintiff's foot "slipped" into the hole and was "caught in and mangled by the moving drive chain mechanism."

Defendant's answer, filed on September 11, 1978, admitted that it designed and manufactured "certain portions" of the automatic car washing machine for Glenbrook and sold those "certain portions" to Glenbrook. Defendant's answer denied that the machine and its component parts left defendant's control in a defective and unreasonably dangerous condition because of the hole in the cover of the conveyor drive chain mechanism.

On December 5, 1978, defendant filed its motion for summary judgment and attached the affidavit of John H. Thacher, Jr., the president of Sherman Industries, Inc. Thacher stated that his review of all invoices, purchase orders, bills of lading, and sales memoranda for sale of car washing equipment to Glenbrook disclosed that Sherman never sold a conveyor or any conveyor parts to the Glenbrook station. The trial court denied defendant's motion.

On July 10, 1979, defendant again moved for summary judgment. In this motion, defendant identified the Flapan Car Wash Equipment Company (Flapan) as the manufacturer and seller of the conveyor drive chain mechanism which allegedly caused plaintiff's injuries because of faulty design and manufacture. The affidavits of Seymour Motel, an employee of Flapan, and J.L. Bates, the western regional manager for Sherman Industries, Inc., were attached. Motel asserted that Flapan, and not Sherman, had designed, manufactured, and sold a conveyor drive chain mechanism to Glenbrook for its automatic car washing machine. Bates stated that he examined the automatic car washing machine on April 10, 1979, and he asserted that defendant did not design, manufacture, or sell the conveyor drive chain mechanism for the automatic car washing machine at Glenbrook.

On February 11, 1980, plaintiff filed a response to defendant's motion asserting that defendant had held itself out to be the manufacturer of the conveyor drive chain mechanism. Attached as exhibits to plaintiff's response were excerpts from the depositions of Thacher and Motel, several promotion flyers and the Haverberg-Glenbrook contract for the sale and installation of automatic car washing equipment at Glenbrook. Defendant's reply incorporated other excerpts of the same depositions.

In his deposition, Thacher stated that prior to July 1, 1976, Sherman Industries' official name was Sherman Car Wash Equipment Company. Sherman Industries, which owns three local car wash companies, is owned by Sherman Supersonic Industries. Sherman Supersonic Industries also owns the stock of Smith-Thacher, an "affiliated distributorship" of Sherman products in Eastern Pennsylvania, Central New Jersey, and Delaware. Sherman Supersonic Industries does not own the stock of any of the other distributors of its products. Thacher identified Flapan Car Wash Equipment and Haverberg Auto Laundry (Haverberg) as "authorized distributors" of Sherman Supersonic Industries, although he denied that Sherman Industries or Sherman Supersonic Industries had any "legal relationship" with either Flapan or Haverberg.

Thacher also identified several purchase invoices sent by Haverberg to Sherman Car Wash Equipment Company (now called Sherman Industries) for the car washing equipment which was installed at Glenbrook. The Sherman equipment was sold to Haverberg and shipped to Glenbrook. Thacher asserted that, although he had not personally examined the equipment at Glenbrook, Sherman Industries did not manufacture or sell the conveyor drive chain mechanism portion of the car washing machinery installed at Glenbrook. Thacher based this conclusion on the statement of Motel and Flapan that there never was a Sherman conveyor at that site. Thacher explained that "once in a while," Sherman Industries manufactures a conveyor drive chain mechanism which can be used in a Sherman automatic car washing system.

After examining his records, Thacher stated that Sherman Industries did not ship a conveyor drive chain mechanism to Glenbrook, although they did ship other automatic car washing equipment to Glenbrook. Thacher further claimed that he did not know who designed the conveyor drive chain mechanism which was installed at Glenbrook. He thought that the conveyor drive chain mechanism was manufactured for Flapan by another company and that Flapan or Haverberg sold, installed, and serviced the conveyor drive chain mechanism.

Thacher also described how Sherman products were marketed prior to 1976: "their biggest advertisement is the work of our distributors * * *. We sold through distributors." Thacher acknowledged that when a Sherman car washing machine system is installed, the Sherman name is displayed on the front of the machinery. Some equipment castings also have the Sherman name embossed on them. He also noted that a Sherman brochure showed the Sherman name on the front of the automatic car washing unit. He did not describe whether the Sherman name appeared as "Sherman" or "Sherman Industries" or "Sherman Supersonic Systems."

Seymour Motel, the Flapan employee, asserted that the Flapan name was a "trade name" and Haverberg was the "corporate name" of the same corporate entity. He described Haverberg as a sales, service and manufacturing company for the car wash industry. Motel also stated that the sale of a conveyor drive chain mechanism together with the Sherman equipment which his company (Flapan-Haverberg) distributed, would comprise everything necessary for a "tunnel type" of car wash. Motel explained that Sherman Industries orders conveyor drive chain mechanisms from either Flapan or Haverberg and Flapan or Haverberg then ships the conveyor drive chain mechanism to the "end user" and bills Sherman Industries for payment. This method of doing business has been going on for 10 to 12 years.

Motel further stated that the conveyor drive chain mechanism sold to Glenbrook was designed by an employee of Flapan or Haverberg. Haverberg directly sold the conveyor to Glenbrook; Sherman Industries did not manufacture any portion of the conveyor installed at Glenbrook. Motel also identified a document, the "Sherman equipment purchase order," which was used to order automatic car washing equipment from Sherman for installation at Glenbrook. He acknowledged that this order form was labelled at the top as follows: "Sherman Supersonic Systems Interdepartmental Equipment Order." Motel also identified the sales contract entered into by Haverberg Auto Laundry Equipment Company and Glenbrook. The contract listed various car ...


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