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Paul Harris Furniture Co. v. Morse

OCTOBER 19, 1955.

PAUL HARRIS FURNITURE COMPANY; HELEN B. WYATT AND WILLIAM WYATT, DOING BUSINESS UNDER NAME AND STYLE OF HOTEL BYERS; SINGER SEWING MACHINE COMPANY, PLAINTIFFS-APPELLEES-CROSS-APPELLANTS,

v.

WILLIAM MORSE, AND L.M. NEFF, DOING BUSINESS UNDER NAME AND STYLE OF AUTOMATIC HEAT COMPANY ET AL., DEFENDANTS; A.J. WALKER, DOING BUSINESS UNDER NAME AND STYLE OF THE WALKER CONSTRUCTION COMPANY, DEFENDANT-CROSS-APPELLEE; THE MCNAMAR BOILER & TANK COMPANY, AND GENERAL TANK COMPANY, INC., DEFENDANTS-APPELLANTS-CROSS-APPELLEES.



Appeal from the Circuit Court of Coles county; the Hon. ROBERT F. COTTON, Judge, presiding. Affirmed in part and reversed in part and remanded with directions.

MR. PRESIDING JUSTICE HIBBS DELIVERED THE OPINION OF THE COURT.

Rehearing denied November 28, 1955.

The parties bring to this court appeals and cross-appeals from judgments entered in three suits consolidated for trial involving extensive damages to the properties of the plaintiffs resulting from an explosion and fire due to escaping propane gas from an underground propane gas tank located on the rear portion of property owned by the City Drug Store in the city of Mattoon, Coles County, Illinois.

The plaintiffs-appellees and also cross-appellants here are Paul Harris Furniture Company, a corporation, Helen B. Wyatt and William Wyatt, doing business under the name and style of Hotel Byers, and Singer Sewing Machine Company, a corporation, hereinafter referred to respectively as Harris Furniture Company, Hotel Byers and Singer. The defendants were the same in each of the three causes, some of whom are also cross-appellants, and are respectively William Morse and L.M. Neff, doing business under the name and style of Automatic Heat Company, Acme Gas, Inc., a corporation, A.J. Walker, doing business under the name and style of The Walker Construction Company, The McNamar Boiler and Tank Company, a corporation, and General Tank Company, Inc., a corporation, hereinafter referred to respectively as Automatic Heat Company, Acme, Walker, McNamar Boiler and General Tank.

McNamar Boiler was the manufacturer of the propane gas tank here involved. General Tank was its sales agency, and the two corporations had an interlocking board of directors with the same individual as president of each corporation.

At the close of plaintiffs' case William Morse and L.M. Neff, doing business as Automatic Heat Company, original defendants, were dismissed on motion for directed verdict. Acme made a settlement with plaintiffs prior to trial, took a covenant not to sue, and was dismissed without prejudice. Under the covenant not to sue Harris Furniture Company received the sum of $8,940.34, Hotel Byers the sum of $18,391.61 and Singer the sum of $1,611.47.

No questions are raised on these appeals involving either the complaints or answers of the respective parties.

In order to fully comprehend the issues before this court we deem it essential that a statement of facts be made before setting out the judgments of the trial court and the various questions raised by the appeals and cross-appeals.

The essential facts in this case are not in substantial dispute. Broadway, an east and west avenue, is one of the principal streets in the business section of the city of Mattoon. It is intersected at right angles by 16th Street, which runs north and south. One block to the east it is intersected by 15th Street and one block to the west by 17th Street. One-half block south of Broadway Avenue is an alley running east and west between 15th and 17th Streets. At the southeast corner of Broadway and 16th Street is a shoe store and next to it to the east is the City Drug Store, which occupies all the lot on which it is located, except a small strip of vacant property at the rear between the store and the alley. Across the alley to the south and at the southeast corner of 16th Street and such alley was a building occupied by the Central Illinois Public Service Company, three or four stories in height with downspouts from the eaves which connected directly with a twelve-inch sewer extending east and west about seven feet under the surface of the alley. The fall of the sewer is east from the manhole in the alley at 16th Street and towards the west from that point to 17th Street. The plaintiff Harris Furniture Company had a store on the south side of Broadway Avenue almost halfway between 16th and 17th Streets and extended to the alley. Plaintiff Byers Hotel had a four-story building at the southeast corner of Broadway and 17th Street which in part extended to the alley. The lobby thereof was at 1619 Broadway and the upper three stories of the hotel were over Nos. 1615, 1617, 1621 and 1623. Singer occupied the first floor of 1615 Broadway between Harris Furniture and Hotel Byers. The sewer in the alley between 16th Street and 17th Street is connected by laterals to the basements of all of the plaintiffs' buildings.

City Drug Store in October 1951 contracted with Morse of Automatic Heat Company for the installation of certain gas heaters for the consumption of either natural or propane gas. The source of the propane gas was to be a 500-gallon tank to be placed in an excavation back of the drugstore in the small vacant tract next to the alley. The cost of installing the tank was not included in the contract of the Automatic Heat Company.

Automatic Heat Company ordered the tank of Acme sometime in September 1951, but did not specify a particular brand of tank or the manufacturer. At that time the tank here involved was on Acme's storage lot. On August 31, 1951 Acme ordered the tank from General Tank by a purchase order for a 500-gallon underground propane tank without specifying any dimensions or characteristics. On September 4, 1951 tank E 6054, being the one thereafter installed for City Drug Store, was received by Acme. The invoice covering the tank was received on September 6, 1951 and the Data Sheet hereafter referred to was received between September 7th and 9th. The Data Sheet was a form required by the American Society of Mechanical Engineers Code, usually referred to as the A.S.M.E. Code. The rules and regulations of the State Fire Marshal required that tanks of this character be made in accordance with that code. The purpose of the Data Sheet was to show that the manufacturer of the tank described therein had complied with such code. On the Data Sheet covering the tank in question was a certificate signed by McNamar Boiler which stated: "We certify the above data to be correct and that all details of materials, construction and workmanship on this unfired pressure vessel conform to the A.S.M.E. Code for Unfired Pressured Vessels." On the Data Sheet was this item: "18. Drain connection . . . . . . . (size) in," and the size of the drain connection was not filled in. The tank weighed about 1600 pounds, had four short legs attached to the sides or bottom, and it had an opening or drain connection in the bottom three-fourths of an inch in size constructed for the installation of a plug with screw threads on it. This tank had been manufactured by McNamar Boiler, and before being sold by General Tank, was according to the practice of the manufacturer subjected to the hydrostatic test. The plugs were first prepared with a compound or coating of a heavy, paint-like material, the color of which varies. Sometimes it is black, sometimes dark brown and sometimes red. The purpose of the compound is to prevent water from leaking out of the tank during the test. The tank is then filled with water by high-pressure hoses until the pressure reaches four hundred pounds. The inspectors then go around the tank and inspect each welded seam and each opening that had been welded into the tank, looking for small seepages and leaks of any kind.

When the Data Sheet was received by Acme, an employee took it over across the highway where the tank was stored on a storage lot standing flat on the ground with forty or fifty other tanks. A representative of Acme saw two openings in the top of the tank in question, both described in the Data Sheet, but failed to see the drain connection in the bottom. The tank remained in Acme's lot from the day it was received on September 4, 1951 until it was removed on the 26th or 27th day of the following November.

On November 25, 1951 Morse of Automatic Heat Company requested Walker to dig the excavation back of the City Drug Store for the installation underground of the tank. Walker knew that the excavation was made for the installation of a propane gas tank. His employees in making such excavation cut through at least two tile about three feet underground that ran into the sewer. This fact was known to Walker, but he did not stop the outlets and failed to advise Automatic Heat Company or Acme or City Drug Store or anybody else of such fact. Acme neglected to give the tank a protective coating before inserting it in the ground, although such coating is required by the National Board of Fire Underwriters. The tank was removed from the Acme lot on November 26th or 27th, 1951 by Acme and was taken over to the excavation at the City Drug Store and lowered into the ground. After the tank was installed, Walker, through his employees, backfilled the excavation and placed a concrete protective housing over the dome of the tank.

Acme, on the 24th day of January 1952, placed 425 gallons of propane gas in the tank. On Sunday, the 27th day of January, 1952, a substance which the witnesses assumed was steam was seen to come out of the ground in the vicinity of the tank, and then suddenly there was a flash of light and fire behind the City Drug Store and along the sides and out of the downspouts of the Central Illinois Public Service Company building. Shortly after, viz., about ten or fifteen minutes, there were violent explosions in the Harris Furniture Company store and the Byers Hotel and then these buildings caught fire. Most of the hotel windows were blown out. In the basement the metal attachments to the toilet and lavatory facilities were melted. A portion of the concrete first floor was dropped into the basement. Doors were blown off the hinges and walls and partitions were moved and extensive damage was done on all floors throughout the hotel. In the Harris Furniture Company store the merchandise was blown about and misplaced, furniture was burned and smoke-damaged, pictures destroyed and windows blown out. In the Singer Sewing Machine store the damage arose chiefly from falling debris and heat.

On Tuesday, January 29, 1952, the tank was removed from the pit by Acme. It was found that there was no plug in the bottom outlet and Edward McLean, called as an expert, and who was present at the time of the removal of the tank, testified concerning the drain opening that "inside the ...


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