Appeal by defendant from the Circuit Court of Kendall county;
the Hon. HARRY C. DANIELS, Judge, presiding. Heard in this court
at the October term, 1952. Judgment reversed and cause remanded.
Opinion filed July 2, 1953. Rehearing denied July 31, 1953.
Released for publication August 3, 1953.
MR. JUSTICE ANDERSON DELIVERED THE OPINION OF THE COURT.
Rehearing denied July 31, 1953
Harry L. Dixon and Sabina E. Dixon, his wife, plaintiffs appellees, hereinafter referred to as plaintiffs, brought suit in the circuit court of Kendall county against Montgomery Ward and Company, hereinafter referred to as the defendant. The plaintiffs alleged that they lost their home and its contents by the overheating of a furnace purchased from the defendant. In a trial before a jury a verdict was returned in favor of the plaintiffs. The court overruled motions for a new trial and for judgment notwithstanding the verdict and entered judgment on the verdict. This appeal follows.
The complaint consisted of two counts. The first count alleged that in late November 1949, plaintiffs purchased from the defendant an automatic oil-fired furnace which was warranted to be fit for heating purposes of the plaintiffs' home in that it was mechanically perfect, safe and fit for this use; that the furnace due to its defective construction was a dangerous instrumentality; that the defendant agreed to install the furnace; that the defendant installed the furnace in a negligent and careless manner; that on several occasions prior to April 27, 1950, the furnace became overheated due to the negligent manner in which it was installed or due to its defective condition; that as a result thereof, a fire was started which consumed the plaintiffs' home and its contents for which the plaintiffs asked damages; and that at all times the plaintiffs exercised due care for the safety of their property.
Count two of the complaint alleged in substance the same material facts as count one except that count two did not allege that there was a contract to install the furnace. The defendant by his answer denied the allegations of the complaint and liability.
In the latter part of November 1949, Harry L. Dixon went to the Montgomery Ward store at Aurora, Illinois, in the vicinity where he resided, and purchased the furnace in question recommended by the defendant. A sales contract was signed by the parties. The contract prior to its execution consisted of a printed form. The data necessary to cover the details of this contract were typed in prior to its signing. All the typed additions appeared on the first page. Above the signature of Harry L. Dixon there was typed, "install in workmanlike manner." On the back of the contract there appeared in fine print what are designated as conditions of the contract. The substance of these conditions was that the defendant warranted the furnace to be free from defects in material and to give satisfactory service when properly installed. The price of the furnace included the installation. After Dixon signed the contract, the defendant without the knowledge or consent of the plaintiffs procured Merle Pruter to install the furnace. Pruter later signed an installation agreement which was contained in the same contract. Pruter installed the furnace. There is no complaint concerning the installation except as to the electrical devices. The furnace was manufactured to be fired by oil. All the electrical devices and connections within the furnace itself had been installed by the manufacturers at the factory. The testimony shows that these electrical devices which regulated the furnace had been properly installed and were not defective when the furnace left the factory; that it was necessary for the electrician to extend a wire from an outlet to a thermostat and from the thermostat to an electric service line; that the electrical devices on the furnace controlled the flow of oil into the furnace and the thermostat controlled the temperature of the house. The uncontroverted testimony of witnesses for the defendant shows that if the wires were not connected properly to the outlet on the furnace, the furnace would not work automatically. The furnace could be operated manually.
Joe Trettenero, an employee of Pruter, did the electrical wiring on the furnace when it was installed. He testified that he wired the thermostat and the outlet to the power line with the help of an owner's guide prepared by the defendant; that he had considerable experience in wiring this type of furnace and had wired several of them for the defendant. There is no evidence, unless the overheating of the furnace and the later fire is considered, that he did not wire the furnace properly.
The furnace was also equipped at the factory with a limit or heat control inside the jacket of the furnace. This control had a maximum temperature setting of 250° F. If the furnace reached the 250° temperature and the limit control was working, the furnace would automatically shut off.
The installation of the furnace was completed about December 8, 1949 and it worked satisfactorily for two or three weeks. Plaintiffs' house throughout the winter prior to the fire was being remodeled. A power saw was used which caused considerable dust in the house. After the furnace had been installed, the plaintiffs constructed around the plenum or heat chamber at the top of the furnace two by fours to which a ceiling of plywood was nailed. The heat ducts from the plenum chamber are equipped with filters and if these filters are clogged, the hot air will remain in the plenum chamber and will cause the furnace to become overheated. The filters ordinarily require no cleaning for about a year after installation, but if there is excessive dust and dirt, they may become clogged within a short period of time. The furnace may be operated manually by pulling up a button at the bottom of the furnace. When this is done, the thermostat control is cut out as well as the limit control, both of which are electrically controlled. The plaintiffs received an owner's guide from the defendant. This guide informed the owner concerning the operation of the furnace. After the furnace did not operate properly, Harry L. Dixon and his father attempted to adjust the furnace. The testimony does not disclose what they did except they remembered using a screw driver. There is no device to shut off the furnace except to shut off the fuel. There is a valve near the bottom of the furnace which can be operated to regulate the amount of oil going into it. This valve is numbered from one to six and when the valve is turned to six, the maximum heat of the furnace is obtained. After several weeks of satisfactory operation, Harry L. Dixon and his father both noticed that the furnace appeared to be sooting a great deal and that the thermostat failed to control the temperature. Harry C. Dixon, the father, testified that he told Mr. Bowman about these conditions. This was about two months prior to the fire. Bowman testified that he agreed to go out and look at the furnace and that he was out there on two or three occasions but finding no one at home, he did not inspect it. It appears from the defendant's witness and is not contested, that the smoking or sooting of the furnace could have arisen from many causes, among them lack of oxygen, lack of ventilation, poor oil, and poor mixture of the oil and the air in the combustion chamber, and that if a large amount of black smoke came out of the chimney, as testified to, this would indicate that the furnace was being operated by manual control. The uncontroverted testimony of defendant's witnesses established that the ignition temperature of wood varies with its density in moisture content; that a two by four or plywood when brought in close contact with the plenum chamber will dry out and char; that this will lower the ignition temperature down to as low as 190°; and that plywood or two by fours should be at least six inches from a plenum chamber.
On December 8, 1949, Harry L. Dixon signed a written acceptance which stated that the furnace had been satisfactorily installed, and in the same instrument Merle Pruter certified that he had completed the installation and Bowman for the defendant certified that he had inspected the premises and found the furnace completely installed. After the house burned, the plaintiffs paid the defendant the balance due on the contract.
Walter S. Henry, a neighbor of the plaintiffs, testified that in March 1950, early in April 1950, and again later, he noticed black smoke coming out of the Dixon chimney. There was no one at home; so he went into the house and turned the oil off at the oil barrel. The house was very hot and he smelled an odor of hot pine. On each occasion, Mr. Henry told Harry L. Dixon about this.
Harry L. Dixon testified that the furnace was put into operation the latter part of December or the early part of January and that he started it after Mr. Bowman had told him how to do so; that he noticed excessive sooting some time in January and that he and his father tried to make some adjustments with the help of the instruction book, but they were not able to get a satisfactory flame to prevent the sooting; that he had talked to Mr. Ryback, who was employed in the building department of the defendant's store, about the furnace, that at times, although he does not remember the exact dates, the house would get extremely warm although the thermostat was set at 72°; that the thermometer at the thermostat was higher than the thermostat and he turned it down and the house seemed to cool off; that he had told Bowman some time in January that the thermometer and the thermostat did not coincide; that he mentioned to Bowman the sooting of the furnace; that on the night of the fire he noticed the belching of the soot coming out of the furnace door; that he saw that the flame in the furnace was extremely high and the soot was going throughout the utility room; that he turned the thermostat down to about 50° or 60°; that the furnace appeared to subside after he turned the thermostat down; that he retired and he woke up to find the house full of smoke; that he ran to the utility room and observed that the flames were eating around the plenum in the utility room ceiling; that his home and all its contents were consumed by the fire. On cross-examination he testified that he noticed that the thermostat did not shut the furnace down; that he did not believe this happened more than twice; that he only noticed the furnace overheating once or twice; that he met Bowman and Ryback in the City Hall Pharmacy after Mr. Henry had noticed the furnace heating up and he told Ryback what had happened that the furnace had overheated; that Ryback said he would have to get out and make some adjustments; that Dixon never put any new filters in the furnace but that he had inspected them once or twice but did not clean them; that he had never heard from Bowman or Trettenero; that he had nothing to do with selecting Pruter or Trettenero to install the furnace; that the fair cash market value of his home before the fire was $8,000 and that after the fire, there was no value except the lot which was worth $350.
Harry C. Dixon, father of Harry L. Dixon, testified that he had helped his son remodel the home; that at one time, seeing that the furnace was overheating, when he thought the thermostat was set at 60°, he had discussed the furnace conditions, the sooting and overheating, with Bowman and Ryback in the defendant's store in Aurora. On cross-examination he testified as to the construction of the two by four's and the ceiling over the plenum and said that only on one occasion did he think the furnace was too hot.
Garr S. Bowman was called as an adverse witness by the plaintiffs under section 60 of the Civil Practice Act [Ill. Rev. Stats. 1951, § 184; Jones Ill. Stats. Ann. 104.060]. He subsequently testified for the defendant and was further cross-examined by the plaintiffs. He testified that he had special training as a furnace engineer. He fully described the furnace and its electrical devices; that he had inspected the furnace two or three times prior to the time it was accepted by the purchaser; that Dixon never complained to him about the furnace; that he asked him to look at it to see if it needed any adjustment to prevent sooting; that his father complained about the furnace, stating that it was making too much smoke; this was after Bowman had talked to Harry L. Dixon; that no complaint was ...