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Cohn v. Petroleum Heat & Power Co.

OCTOBER 29, 1963.




Appeal from the Municipal Court of Chicago; the Hon. CECIL CORBETT SMITH, Judge, presiding. Judgment affirmed.


Plaintiff-appellant, Royal Insurance Company, as subrogee of plaintiffs-appellants, George and Rose Cohn, appeals from a judgment entered on a jury verdict for the defendants, Petroleum Heat and Power Company and its agent Leonard Lewandowski, in the Municipal Court of Chicago on February 23, 1962.

The plaintiffs-appellants allege four errors below: (1) that the court erred in refusing to direct a verdict for the plaintiffs because the defendants were negligent as a matter of law; (2) that the court erred in submitting the question of contributory negligence to the jury; (3) that the court erred on the admission of certain documents as evidence; and (4) that the court erred in giving certain of defendants' instructions.

This action was brought for damages to a twenty-two unit apartment building located at 11 West Pearson, Chicago, caused by a fire which occurred on January 13, 1956. The fire was caused by the vaporization and fractionation of fuel oil which spilled over the top of the plaintiffs' oil storage tank through a loosened manhole cover 21 1/2 inches wide located at the top of the tank. The defendant oil company through its deliveryman Lewandowski had delivered oil to the premises about two hours before the fire occurred. The defendant's driver Lewandowski had returned to the premises immediately before the fire began to pump the spilled oil out of the pit adjacent to the combustion chamber and back into the truck. Lewandowski had returned at the request of the oil company which had been advised of the overflow by Mr. Dutile, the husband of the building manager. Both Lewandowski and Dutile witnessed the combustion of the spilled oil and both unsuccessfully attempted to quench the flames.

The principal controversy in this case centers around the conduct of the driver Lewandowski. There is no argument as to what actions Lewandowski performed. The argument concerns the legal significance of those actions.

It is undisputed that Lewandowski was an experienced oil delivery driver who had delivered to the premises in question on numerous previous occasions. The building had recently changed ownership and the defendant had been retained to deliver oil on a "keep fill" basis. Lewandowski had delivered 200 gallons of oil on December 4, 1955; 500 gallons on December 10, 1955; 500 gallons on December 23, 1955; 700 gallons on January 6, 1956; and 604 gallons on January 13, 1956.

Lewandowski testified that he usually entered the basement before filling the tank for the purpose of measuring the amount of oil which would be required to fill the tank. Since the tank regulator was defective, Lewandowski usually inserted a measuring stick through the top of the tank after removing the cap of the defective oil gauge. On January 13, Lewandowski was unable to gain entrance into the basement of the building. He, therefore, made an "alley delivery" and determined how much oil would be needed to fill the tank by means of a "loose fitting." Lewandowski testified that a "loose fitting" was performed by attaching the nozzle on the hose to the pipe protruding from the basement by means of an elbow in a loose way so that pressure built up inside the tank would cause oil to spurt out at the nozzle thereby signaling that the tank was filled. Lewandowski testified that he had used the "loose fitting" method before.

On January 13, there was no "gurgle" in the pipe or a "spurt" of oil. Lewandowski emptied his truck into the tank (604 gallons). The Cohns' tank had a capacity of 1500 gallons. This delivery occurred during a cold period when a high consumption of fuel oil over a weekly period would not be unrealistic.

Lewandowski testified that he knew that the fuel gauge was defective but that he had no knowledge that the manhole cover was not tightly secured. There was conflicting testimony concerning whether the oil company had notice of the loosened manhole cover through its sales agent who had talked with the Cohns concerning a "maintenance" contract for the Cohns' oil tank.

The plaintiffs-appellants contend that the actions of Lewandowski constituted negligence as a matter of law and therefore a verdict should have been directed for the plaintiffs. The duty of an oil company and its agents in the delivery of oil is to use ordinary care and they are bound to use caution commensurate with the known danger. Loverde v. Consumers Petroleum Co., 327 Ill. App. 210 (abst) (opinion, p 9), 63 N.E.2d 673.

We reaffirm the general rule as set forth in the Loverde case but do not find that Lewandowski acted flagrantly in disregard of ordinary care as a matter of law. On the contrary it is clear that the conduct of Lewandowski presented a jury question. The keep fill contract provided that the oil company should get a "signature where possible." There are no facts here to suggest that Lewandowski deviated at all from the standard procedure in an oil delivery. He tried to get into the building. Only when he was unable to gain entrance did he resort to the alternate method. To hold that Lewandowski's conduct constituted negligence as a matter of law would mean that no oil delivery could be made without entrance into the basement and an examination of the oil storage facilities.

Whether it is reasonable for an oil delivery agent to forego an exact measurement of the depth of oil in a tank in the exercise of ordinary care is a question of fact to be decided by the jury considering the special circumstances in which the incident arose. Only where there is an absence of probative facts to support a jury verdict is it reversible error for a trial judge to overrule a motion for a directed verdict or a motion for judgment notwithstanding the verdict. Manion v. Chicago, R.I. & P. Ry. Co., 12 Ill. App.2d 1, 138 N.E.2d 98; Lindroth v. Walgreen Co., 407 Ill. 121, 94 N.E.2d 847. The question of whether Lewandowski used ordinary care in the delivery of the oil was properly a question for the jury.

Appellants next contend that the court improperly sent the question of the contributory negligence of the Cohns to the jury. Their position is that the loosened manhole cover was merely a passive condition which alone constituted no negligence whatsoever. Their contention is that Lewandowski had a duty to measure the tank from the inside of the basement. If he had done so no oil would have spilled over the top regardless of the loosened cover.

We have found above that Lewandowski was not required in the exercise of ordinary care to enter into the basement for the purpose of making an exact measurement of the depth of the oil in the tank as a matter of law. In addition the jury below found as a matter of reasonableness in this situation that ...

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