dissenting:
The culpability of Sherman eludes me. The pertinent facts are few and rather straightforward. The two facts that led the majority to find that a question of fact is presented centered around two separate factual settings that need some clarification. One concerns Sherman’s name appearing on certain items of equipment that were in the car wash and the other on advertising literature.
Sherman manufactured familiar pieces of equipment that are seen in a car wash. Among those items, for example, were a large inverted “U” shaped car rinser with enormous brushes, a similarly shaped washer and a dryer. On each piece of equipment Sherman manufactured it placed its own name. Sherman sold these individual pieces of equipment through distributors. Sherman in fact sold several pieces of equipment used by the car wash in this case to Haverberg. Haverberg in turn sold the equipment to Glenbrook. Haverberg also provided expertise and installed the equipment at Glenbrook. Sherman of course neither manufactured nor sold the conveyor in which the plaintiff was allegedly injured. Haverberg manufactured the conveyor itself. There was no designation on the conveyor identifying Sherman. It was on this conveyor that the plaintiff was allegedly injured while working at Glenbrook.
I believe some comment should be made on the statement of facts in the majority opinion. I believe that they lead to a mistaken impression. The majority states that Haverberg sold “a Sherman car washing system.” Sherman did not sell a car washing “system.” Haverberg may have sold Glenbrook a system which included not only certain items manufactured by Sherman but also included items manufactured by Haverberg. Sherman only sold individual pieces of equipment that it manufactured. The opinion quotes Thacher as saying that when a Sherman car washing machine system is installed, the Sherman name is displayed on the front of the machinery. Thacher said that the name was an integral part of each piece of equipment and is not a separate sign. The opinion points out that the contract between Haverberg and Glenbrook, which of course Sherman was not a party to, states that Sherman and Haverberg are named together on one of the items sold as “Sherman-Haverberg.” The contract did indeed identify a wheel washer as being a “Sherman-Haverberg” wheel washer. The contract is not in fact correct. That piece of equipment was manufactured by Haverberg and has nothing to do with Sherman.
The only other alleged involvement of Sherman in this transaction results from the advertisements. There are not one but two separate sets of advertisements with two different authors. Sherman issued common advertisements for the products it sells and in fact did sell to Haverberg, that is, the rinser, the washer and the dryer. The advertisements contained pictures and rather precise details of the equipment such as its exact size, electrical and plumbing equipment and other facts. That would be helpful to a prospective purchaser. There was no literature concerning a conveyor belt.
The allegedly inculpatory literature was issued by Haverberg. It consists of a single sheet of very colorful red and white paper that unfortunately would not take to reprinting with the issuance of this opinion. On the front side at the top prominently displayed in black letters is “Jack Flapan’s Haverberg Equipment Company.” The name “Haverberg” is on a separate line and is in print larger than the other wording. Also on the front side is a picture of a conveyor belt with no designation on the conveyor belt as to its manufacturer. There is nothing on the front side that identifies Sherman. On the back are the same pictures that are on the front and text extolling the virtues of the conveyor belt. At the very bottom of the page is the single word Sherman, as is indicated in the majority opinion, followed on the next line by the words Haverberg Auto Laundry Equipment Company, Inc., along with Haverberg’s address and telephone number.
Reduced to its essentials Sherman manufactured individual pieces of equipment that could be used in a car wash. On each piece of equipment that it manufactured it placed its own name. The majority holds that Sherman was wrong in placing its name on the individual items of equipment that it manufactured. I fail to see what Sherman should have done. I do not believe that it can be said that Sherman should not put its own name on its own equipment. Nor do I believe that if Sherman wanted to place its own name on its own equipment it should have issued some sort of disclaimer along with its name to the effect that although it manufactured the rinser it was not necessarily the manufacturer of any other piece of equipment that a party may see in a car wash.
The majority accepts the contention of the plaintiff that a reasonable person viewing the automatic car washing system would perceive that it was one machine and that the unlabeled conveyor drive chain mechanism would be considered a component. part of the system. Neither the plaintiff nor the majority cite any case law to support the legal efficacy of this statement. The apparent rationale is that a plaintiff has a right to rely on his own mistaken impression. None of the cases cited by the plaintiff, which will be discussed momentarily, support this rationale. Under the majority’s all encompassing view, if a person were run down by a vehicle on the street due to the vehicle’s defective brakes, the manufacturer of the automobile would be responsible even though the car’s brakes had been replaced and someone else’s braking system was placed in that vehicle. In line with the reasoning in this case the majority apparently holds that even if Sherman had sold the entire system including a conveyor if the conveyor was replaced with another conveyor Sherman would be responsible.
There is more of a duty on a plaintiff to find the proper defendant than to merely glance at something and assume who the defendant should be. As applied to this case the result is particularly inappropriate because the plaintiff knew that he was injured on the conveyor. The conveyor of course did not bear the name of Sherman because it was manufactured by Haverberg. The plaintiff’s remedy was to investigate and to discover the proper defendant. I do not believe that the plaintiff has a right to make Sherman financially responsible because of the plaintiff’s unwarranted assumptions.
I see no legal significance in the brochure that was issued by Haverberg and which contained the name Sherman on the back page. The plaintiff did not see the advertisement. Sherman did not authorize the advertisement. Sherman did nothing to induce anyone to buy a conveyor that it did not even manufacture. The majority opinion makes a manufacturer responsible for every product the distributor sells simply because the distributor advertises that it distributes for a particular manufacturer.
The case law provides no support to the plaintiff. Cited are four cases that are patent examples of holding out: Connelly v. Uniroyal, Inc. (1979), 75 Ill. 2d 393, 389 N.E.2d 155; Sipari v. Villa Olivia Country Club (1978), 63 Ill. App. 3d 985; Lill v. Murphy Door Bed Co. (1937), 290 Ill. App. 328, 8 N.E.2d 714, and Davidson v. Montgomery Ward & Co. (1912), 171 Ill. App. 355. In each of them the defendant permitted its name to be placed on the product that caused the injury. Implicit in the holding out doctrine is the notion that the defendant has done something to give the plaintiff the erroneous impression that the product which injured him was manufactured by the defendant. More specifically it has been held that a party who leads others to believe that he is the manufacturer by placing his name on a product, label, by advertising or by other means may be held to the same liability for the defective product as if he were actually the manufacturer. He is effectively estopped from denying his identity as the manufacturer. Annot., 51 A.L.R.3d 1344, 1361 (1973).
In the instant case Sherman did not do anything to create the impression in the mind of the plaintiff that it had manufactured the conveyor. The plaintiff in the instant case worked at the gas station where he was injured and was obviously familiar with the machinery. The complaint alleged that he was injured by the conveyor drive chain mechanism belt which had a hole in its cover. The plaintiff could readily see that the defendant’s name or trade mark did not appear on this particular piece of machinery. Thus, the plaintiff could not have been misled into thinking that the defective conveyor was manufactured by the defendant.
In Connelly, the court in ruling on a case involving a licensor that allowed a product to be manufactured with the licensor’s name on it set out the policy rationale for applying the holding out doctrine:
“A licensor is an integral part of the marketing enterprise, and its participation in the profits reaped by placing a defective product in the stream of commerce [citation] presents the same public policy reasons for the applicability of strict liability which supported the imposition of such liability on wholesalers, retailers and lessors. The societal purposes underlying Suvada mandate that the doctrine be applicable to one who, for a consideration, authorizes the use of his trademark, particularly when, as here, the product bears no indication that it was manufactured by any other entity.”
Sherman did not reap any profits and did not place the conveyor into the stream of commerce.
For the reasons stated I would affirm the judgment of the trial court.