Appeal from the Circuit Court of DuPage County; the Hon.
PHILIP F. LOCKE, Judge, presiding. Judgment reversed and cause
remanded for a new trial.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.
Rehearing denied September 13, 1965.
This is an appeal from a judgment, entered on a jury verdict, in favor of plaintiff and against Northern Illinois Gas Company, herein called defendant, in the sum of $5,000.
Plaintiff brought suit for property damages resulting from explosion and fire. The complaint consisted of two Counts: Count I against defendant, the owner of the gas main that leaked, causing the explosion; and Count II against R.J. Hankes, a plumbing contractor who was alleged to have damaged the gas main. At the close of plaintiff's case, the trial court indicated it would grant the motion of R.J. Hankes for a directed verdict on Count II, and the plaintiff then voluntarily dismissed him as a party.
The defendant contends that the trial court erred in denying its motions for directed verdict, for a judgment notwithstanding the verdict and for a new trial. The latter motion was grounded on the verdict being contrary to the manifest weight of the evidence, and on the inapplicability of the doctrine of res ipsa loquitur and the instruction thereon.
The plaintiff leased the premises in question for the operation of a Dari-Castle and took possession after the building was constructed in September of 1957. The fire took place January 15, 1958, about midnight, when no one was on the premises. About ten days prior to the fire, the plaintiff thought she smelled gas on the premises and called her propane gas and refrigeration suppliers, who checked but found no gas leaking from their services. She was not a customer of the defendant and did not call it. The explosion and fire were caused by natural gas which escaped from a split or break in defendant's gas main at a point under the street in front of, and about 30 feet east of plaintiff's building.
Plaintiff's complaint charged that the defendant was negligent in the manner it "installed said gas lines"; in installing the pipes "without any protection or covering"; in having "negligently and carelessly permitted the said gas main to deteriorate and the walls to become weakened and filled with holes"; and in negligently failing to inspect the gas mains for leaks.
The record is devoid of evidence that the defendant was negligent in the manner in which it installed the pipes or that it permitted them to deteriorate. The gas line in question was installed in 1910. While the defendant now uses a protective covering over its steel pipes, it did not do so then, and there is no evidence that such was then the practice. Furthermore, the testimony of the metallurgist, the photographs of the pipe, and an examination of the pipe itself, establish beyond peradventure, that the pipe, except for the area where it was split, bent and bashed-in, was not corroded or deteriorated, and was capable of transporting gas. Except for this bashed-in part, which was removed, the pipe is still in service.
The plaintiff also alleged that the defendant failed to make periodic inspections and thus ascertain that the gas was leaking from its main. In this regard the plaintiff called, as an adverse witness, a maintenance staff advisor employed by the defendant. He testified as to defendant's general practice of making inspections, and that he was unable to find any records of inspections made by defendant in this area. He surmised that defendant could have inspected the general area in question during the summer preceding the fire, but could not recall specifically.
In reviewing the trial court's ruling on the motions for directed verdict and judgment notwithstanding the verdict, our function is to determine whether, from a consideration of all of the evidence in the record, together with all reasonable inferences arising therefrom in favor of plaintiff, there is any evidence which tends to prove the material elements of plaintiff's case. If so, these motions must be denied. Lindroth v. Walgreen Co., 407 Ill. 121, 130, 94 N.E.2d 847 (1950); Merlo v. Public Service Co. of Northern Illinois, 381 Ill. 300, 311, 45 N.E.2d 665 (1942); American Nat. Bank & Trust Co. v. Peoples Gas, Light & Coke Co., 42 Ill. App.2d 163, 171, 191 N.E.2d 628 (1st Dist 1963).
Guided by these rules, we cannot say that there was such a total deficiency of evidence with reference to the allegations of the failure to make periodic inspections. In view of the absence of records indicating inspection and the mere surmise of such action, we cannot say that a jury finding of failure to inspect, together with the finding that it proximately caused or contributed to the resulting injury, is contrary to the manifest weight of the evidence.
The trial court submitted a modified version of IPI Instruction Nos. 22.01 and 22.02 which permitted the jury to apply the doctrine of res ipsa loquitur. The defendant contends that this was improper: first, because only specific negligence was pleaded; and, second, because the evidence did not justify the application of the doctrine. We find the giving of this instruction to constitute reversible error in that it permitted the jury to apply the res ipsa loquitur inference of general negligence to the case when general negligence had not been pleaded. Consequently, a new trial must be granted.
Specific allegations of negligence will not support the application of the res ipsa doctrine. Kerby v. Chicago Motor Coach Co., 28 Ill. App.2d 259, 262, 171 N.E.2d 412 (1st Dist 1960); Jackson v. 919 Corp., 344 Ill. App. 519, 528, 101 N.E.2d 594 (1st Dist 1951). The plaintiff asserts that the allegation charging that the defendant "negligently and carelessly permitted the said gas main to deteriorate and the walls to become weakened and filled with holes . . .," is general and permits the application of this doctrine. We disagree: such allegation is specific. See O'Rourke v. Marshall Field & Co., 307 Ill. 197, 138 N.E. 625 (1923).
Without design to exalt form over substance, we hold that only general allegations charging a defendant with "negligently and carelessly controlling, managing and maintaining" an instrumentality, may be the basis for the doctrine of res ipsa loquitur. The very essence of this doctrine and its consequences on the conduct of the trial, place the burden on the plaintiff ...