{ "id": 3643388, "name": "CLYDE MILLER, JR., Plaintiff-Appellant, v. SEARS, ROEBUCK AND COMPANY, Defendant-Appellee, (William Bryant et al., d/b/a B&W Transmission, et al., Defendants.)", "name_abbreviation": "Miller v. Sears, Roebuck & Co.", "decision_date": "1986-10-29", "docket_number": "No. 85\u20141743", "first_page": "1022", "last_page": "1025", "citations": [ { "type": "official", "cite": "148 Ill. App. 3d 1022" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "134 N.E.2d 249", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "8 Ill. 2d 293", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2716524 ], "pin_cites": [ { "page": "307" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/8/0293-01" ] }, { "cite": "477 N.E.2d 488", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1956, "opinion_index": 0 }, { "cite": "106 Ill. 2d 111", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138130 ], "year": 1956, "pin_cites": [ { "page": "120" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/106/0111-01" ] }, { "cite": "511 F. Supp. 1235", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 5579616 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "1239-40" }, { "page": "1239" } ], "opinion_index": 0, "case_paths": [ "/f-supp/511/1235-01" ] }, { "cite": "552 F. Supp. 685", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7860009 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "693" }, { "page": "693" } ], "opinion_index": 0, "case_paths": [ "/f-supp/552/0685-01" ] }, { "cite": "455 N.E.2d 142", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "118 Ill. App. 3d 520", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5660622 ], "weight": 2, "pin_cites": [ { "page": "532" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/118/0520-01" ] }, { "cite": "399 N.E.2d 1355", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1983, "opinion_index": 0 }, { "cite": "80 Ill. App. 3d 683", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3233031 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "689" }, { "page": "689" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/80/0683-01" ] }, { "cite": "399 N.E.2d 1355", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "pin_cites": [ { "page": "1363-68" } ], "opinion_index": 1 }, { "cite": "80 Ill. App. 3d 683", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3233031 ], "year": 1983, "pin_cites": [ { "page": "696-99" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/80/0683-01" ] } ], "analysis": { "cardinality": 511, "char_count": 8922, "ocr_confidence": 0.764, "pagerank": { "raw": 6.522205519383851e-08, "percentile": 0.4006285694648607 }, "sha256": "a1cc9a9ea735a54170edc67a7a237cb97b5e29aa891ed5a50e496f1cdfe7200f", "simhash": "1:bfed57e510955cd4", "word_count": 1473 }, "last_updated": "2023-07-14T16:17:24.109479+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "CLYDE MILLER, JR., Plaintiff-Appellant, v. SEARS, ROEBUCK AND COMPANY, Defendant-Appellee, (William Bryant et al., d/b/a B&W Transmission, et al., Defendants.)" ], "opinions": [ { "text": "JUSTICE McGILLICUDDY\ndelivered the opinion of the court:\nPlaintiff, Clyde Miler, Jr., appeals from the trial court\u2019s dismissal of counts V and VI of his amended complaint in a personal injury action. Count V of the complaint alleges a violation by defendants, Sears, Roebuck and Company (Sears), Doerr Electric Corporation (Doerr) and Melben Products Company, Inc. (Melben), of the express and implied warranties of merchantability found in sections 2 \u2014 313 and 2 \u2014 314 of the Uniform Commercial Code \u2014 Sales (UCC) (Ill. Rev. Stat. 1977, ch. 26, pars. 2 \u2014 313, 2 \u2014 314). Count VI alleges that Sears violated an implied warranty of fitness for a particular purpose under section 2 \u2014 315 of the UCC (Ill. Rev. Stat. 1977, ch. 26, par. 2-315).\nThe complaint alleges the following: On July 17, 1978, plaintiff was on the premises of defendants, William Bryant and Desmond White, d/b/a B&W Transmission (B&W), where he spoke with the defendants about repairs to his automobile. In the shop was an air compressor manufactured by Doerr and Melben and purchased from Sears by B&W. While plaintiff was at the shop, White turned on a switch that activated the compressor. Almost immediately, there was an explosion which demolished the transmission shop and injured plaintiff.\nPlaintiff filed his original complaint on August 6, 1979, alleging negligence on the part of B&W, Doerr, Melben, and Sears. He also sought recovery under a theory of strict liability from Doerr, Melben, and Sears. On February 18, 1982, plaintiff added the UCC counts. Defendant Doerr subsequently was dismissed on a motion for summary judgment. Sears filed a motion to dismiss counts V and VI of the amended complaint, contending that: (1) counts V and VI failed to state a claim upon which relief could be granted because the warranty protections of the UCC do not extend to plaintiff; (2) plaintiff\u2019s remedies were barred by UCC section 2 \u2014 607(3)(a) (Ill. Rev. Stat. 1977, ch. 26, par. 2 \u2014 607(3)(a)) because he failed to notify Sears of the alleged breaches of warranty within a reasonable time after discovery; and (3) plaintiff failed to allege and could not allege that he relied upon express or implied warranties.\nThe trial court granted Sears\u2019 motion. It stated that counts V and VI failed to state a claim upon which relief could be granted because plaintiff was not within the class of persons to whom the warranty protections of UCC section 2 \u2014 318 extended. The court did not address the other issues raised by Sears. Plaintiff appeals the trial court\u2019s determination.\nPlaintiff contends that the trial court erred in dismissing counts V and VI because, under section 2 \u2014 318 of the UCC, he is a third-party beneficiary of Sears\u2019 warranties, express or implied. In support of his position, he cites Knox v. North American Car Corp. (1980), 80 Ill. App. 3d 683, 399 N.E.2d 1355, and Boddie v. Litton Unit Handling Systems (1983), 118 Ill. App. 3d 520, 455 N.E.2d 142. Section 2-318 provides:\n\u201cThird Party Beneficiaries of Warranties Express or Implied. A seller\u2019s warranty whether express or implied extends to any natural person who is in the family or household of his buyer or who is a guest in his home if it is reasonable to expect that such person may use, consume or be affected by the goods and who is injured in person by breach of the warranty. A seller may not exclude or limit the operation of this Section.\u201d Ill. Rev. Stat. 1977, ch. 26, par. 2-318.\nThe Knox court recognized that the warranty protections of the statute may extend to persons beyond those specifically enumerated. The court noted in dicta that an employee could stand in a relationship to his employer, the last purchaser, which would make the employee the functional equivalent of a guest or family member and, thereby, provide him the protections of section 2 \u2014 318. Knox v. North American Car Corp. (1980), 80 Ill. App. 3d 683, 689, 399 N.E.2d 1355; accord, Boddie v. Litton Unit Handling Systems (1983), 118 Ill. App. 3d 520, 532, 455 N.E.2d 142.\nIn contrast, the Federal courts in Illinois interpreting section 2\u2014 318 have declined to recognize any extension of protection to classes of persons considered \u201cfunctional equivalents\u201d of those expressly mentioned in the statute. (Hemphill v. Sayers (S.D. Ill. 1982), 552 F. Supp. 685, 693; In re Johns-Manville Asbestosis Cases (N.D. Ill. 1981), 511 F. Supp. 1235, 1239-40.) Both courts agreed that such an extension would amount to \u201cjudicial legislation\u201d tantamount to a rewritten statute and contrary to the intent of the drafters. Hemphill v. Sayers (S.D. Ill. 1982), 552 F. Supp. 685, 693; In re Johns-Manville Asbestosis Cases (N.D. Ill. 1981), 511 F. Supp. 1235, 1239.\nWhen the Illinois legislature adopted section 2 \u2014 318 of the UCC, it selected the most restrictive version from among three alternative forms defining the classes of persons to be protected by the statutory warranties even though those persons were not the original buyers of goods in the distributive chain. In their comment to the statute, the UCC drafters indicated:\n\u201cThis section expressly includes as beneficiaries within its provisions the family, household, and guests of the purchaser. Beyond this, the section is neutral and is not intended to enlarge or restrict the developing case law on whether the seller\u2019s warranties, given to his buyer who resells, extend to other persons in the distributive chain.\u201d (Ill. Ann. Stat., ch. 26, par. 2 \u2014 318, Uniform Commercial Code Comment, at 265 (Smith-Hurd 1963).)\nThis comment was effectively reiterated by the drafters of the Illinois UCC. Ill. Ann. Stat., ch. 26, par. 2 \u2014 318, Illinois Code Comment, at 264 (Smith-Hurd 1963).\nThe alternatives which were rejected in Illinois would have extended a seller\u2019s warranties to classes of third-party beneficiaries much broader than those receiving protection under our statute. The rejected alternatives read as follows:\n\u201cAlternative B. A seller\u2019s warranty whether express or implied extends to any natural person who may reasonably be expected to use, consume or be affected by the goods and who is injured in person by breach of the warranty. A seller may not exclude or limit the operation of this section.\nAlternative C. A seller\u2019s warranty whether express or implied extends to any person who may reasonably be expected to use, consume or be affected by the goods and who is injured by breach of the warranty. A seller may not exclude or limit the operation of this section with respect to injury to the person of an individual to whom the warranty extends.\u201d (See UCC sec. 2\u2014 318 (1978).)\nWe agree with the Knox court that, in light of the legislature\u2019s enactment of Alternative A rather than the broader reaching alternatives, \u201cthe legislature consciously chose to limit a seller\u2019s liability for breach of warranty to the specific classes enumerated therein.\u201d (Knox v. North American Car Corp. (1980), 80 Ill. App. 3d 683, 689, 399 N.E.2d 1355.) Plaintiff urges us that, further, we should adopt the \u201cfunctional equivalent\u201d test as expressed by the Knox court and find that, as a customer in the transmission shop, he was the \u201cguest\u201d of the business purchaser equivalent to the house guest of a residential purchaser. We decline to do so.\nA court\u2019s function is to declare and enforce the law as enacted by the legislature and interpret the language when necessary but not enact new provisions or substitute different ones. (In re Estate of Swiecicki (1985), 106 Ill. 2d 111, 120, 477 N.E.2d 488; Belfield v. Coop (1956), 8 Ill. 2d 293, 307, 134 N.E.2d 249.) Our review of the legislative history of UCC section 2 \u2014 318, coupled with the legislature\u2019s failure to expand expressly the class of horizontal nonprivity plaintiffs following the Knox and Boddie decisions, compels us to limit the classes of persons protected under the statute. We hold that persons afforded third-party warranty protection are limited to those expressly enumerated in the text of UCC section 2 \u2014 318 and that protection should not be expanded to others who could be considered their functional equivalents.\nFor the foregoing reasons, the order of the circuit court of Cook County is affirmed.\nAffirmed.\nMcNAMARA, J., concurs.", "type": "majority", "author": "JUSTICE McGILLICUDDY" }, { "text": "PRESIDING JUSTICE RIZZI,\ndissenting:\nI would reverse the dismissal of counts V and VI and remand for the reasons stated in my dissent in Knox v. North American Car Corp. (1980), 80 Ill. App. 3d 683, 696-99, 399 N.E.2d 1355, 1363-68.", "type": "dissent", "author": "PRESIDING JUSTICE RIZZI," } ], "attorneys": [ "Gary B. Friedman, Ltd., of Chicago (Jay R. Giusti, of counsel), for appellant.", "Arnstein, Gluck, Lehr, Barron & Milligan, of Chicago (Patrick F. Geary and Yvor E. Stoakley, of counsel), for appellee." ], "corrections": "", "head_matter": "CLYDE MILLER, JR., Plaintiff-Appellant, v. SEARS, ROEBUCK AND COMPANY, Defendant-Appellee, (William Bryant et al., d/b/a B&W Transmission, et al., Defendants.)\nFirst District (3rd Division)\nNo. 85\u20141743\nOpinion filed October 29, 1986.\nRehearing denied November 26, 1986.\nRIZZI, P.J., dissenting.\nGary B. Friedman, Ltd., of Chicago (Jay R. Giusti, of counsel), for appellant.\nArnstein, Gluck, Lehr, Barron & Milligan, of Chicago (Patrick F. Geary and Yvor E. Stoakley, of counsel), for appellee." }, "file_name": "1022-01", "first_page_order": 1044, "last_page_order": 1047 }