Appeal by plaintiffs from the Circuit Court of McLean county;
the Hon. WILLIAM C. RADLIFF, Judge, presiding. Heard in this
court at the May term, 1951. Cause remanded with instructions.
Opinion filed May 31, 1951. Rehearing denied September 4, 1951.
Released for publication September 4, 1951.
MR. PRESIDING JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT.
Rehearing denied September 4, 1951
Plaintiffs-appellants Joseph N. Beadles and Bernice T. Beadles, husband and wife, brought action against Servel, Incorporated, and Union Gas and Electric Company, defendants-appellees, to recover for personal injuries sustained when they were overcome by carbon monoxide gas allegedly produced by a Servel refrigerator, manufactured by Servel Incorporated and serviced by Union Gas and Electric Company. We shall refer to the parties as plaintiffs and defendants hereinafter in this opinion.
The motion of defendant, Servel Incorporated, to strike the second amended complaint was allowed. Plaintiffs elected to abide by their complaint as amended, and the court ordered the dismissal of the suit as to Servel Incorporated, from which judgment plaintiffs prosecute this appeal.
In the record there is no mention of a ruling or order by the trial court on the motion of the defendant, Union Gas and Electric Company, to dismiss plaintiffs' second amended complaint. Defendant, Union Gas and Electric Company, made a special and limited appearance in this court, moving to dismiss the appeal as to Union Gas and Electric Company, because no notice of appeal, abstracts or briefs had been served on Union Gas and Electric Company or its counsel. There being no judgment or final appealable order of record by the trial court as to defendant Union Gas and Electric Company, there can be no proper appeal involving it before this court. The motion of defendant Union Gas and Electric Company was granted. People ex rel. Hesterman v. Chicago, B. & Q.R. Co., 306 Ill. 166. The only order this court has jurisdiction to grant is an order of dismissal for want of jurisdiction. Smith Oil & Refining Co. v. Montgomery, 335 Ill. App. 342.
Insofar as it concerned Servel Incorporated, plaintiff's second amended complaint may be concisely set forth by considering only Counts I and III thereof, inasmuch as Counts II and IV were identical with the former counts, but related to injuries suffered by Mrs. Beadles. Counts V through VIII, inclusive, related to the defendant Union Gas and Electric Company, upon which there has been no final judgment rendered, and Counts IX and X proceeded upon the theory that both defendants were joint tort-feasors as to each plaintiff, but contained no material allegation as to Servel Incorporated not included in Counts I and III, to which Counts IX and X referred.
After reciting the facts of jurisdiction and venue, Count I of the second amended complaint alleged that the plaintiff was in the exercise of ordinary care for his own safety; that Servel Incorporated made a gas-operated refrigerator sold to the general public under the trade name and style of "SERVEL GAS REFRIGERATOR."
It is further alleged that the operation of this refrigerator requires the burning of a gas flame to assist in the refrigeration process, and that the mechanism designed to provide the gas flame is designed and constructed in such manner as to permit the deposit of uncombusted carbon particles in proximity to the burning flame, which restrict the supply of air available to burn the gas, and that as so constructed, the machine requires a frequent cleaning to provide total combustion of the gas. If the mechanism becomes dirty or encrusted with carbon particles, the air supply is restricted, the gas being burned is not wholly consumed, and carbon monoxide gas is formed, which said gas is a gas dangerous to life and deleterious to health.
Plaintiffs further alleged in Count I that Servel Incorporated knew, or in the exercise of ordinary care ought to have known, that its refrigerator had the propensity for harm set forth above, and that the said machine was inherently dangerous to life when put to the ordinary use for which it was designed, and that it became and was the duty of Servel Incorporated, to advise the purchasing public and those who might come into proximity to its machines, of the inherent danger of the device, but that the defendant negligently failed to do this.
Plaintiffs further alleged that they purchased from one Crone a house in which the refrigerator had been installed by the defendant Union Gas and Electric Company, without knowledge on the plaintiffs' part of the inherent danger of the Servel machine, which resale defendant Servel Incorporated could reasonably foresee; and that as a direct result of the faulty design of the flame producing device on the refrigerator, the device became dirty and encrusted with carbon particles, the air supplied to the gas flame was thereby restricted, and carbon monoxide gas was given off, which caused the injuries complained of.
In summary then, Count I sought to allege such design and construction of the machine as to constitute it an inherently dangerous machine, a duty to advise the purchasing public and all who might come into proximity to such machines of the inherent danger thereof and a negligent failure so to do.
Count III, in essence, alleged that in the ordinary operation of the refrigerator, a large amount of carbon monoxide gas was given off, which was dangerous to life and harmful to health, a duty on the defendant Servel Incorporated to inform the purchasing public and all who might come into proximity to such machines, of the inherent danger of the device, and a negligent failure by Servel Incorporated so to inform.
Plaintiffs assign as error that the trial court erred in dismissing plaintiffs' complaint.
Defendant Servel Incorporated insists the action of the trial court was correct in that the complaint consisted largely ...