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Lasalle Nat. Bank v. Wieboldt Stores

NOVEMBER 21, 1968.

LASALLE NATIONAL BANK, A NATIONAL BANKING CORPORATION, ADMINISTRATOR OF THE ESTATE OF HENRY C. LAVERY, JR., DECEASED, PLAINTIFF-APPELLEE,

v.

WIEBOLDT STORES, INC., A CORPORATION, DEFENDANT-APPELLANT. JOSEPHINE WATSCHKE, ADMINISTRATRIX OF THE ESTATE OF FRED WATSCHKE, DECEASED, PLAINTIFF-APPELLEE,

v.

WIEBOLDT STORES, INC., A CORPORATION, DEFENDANT-APPELLANT. ELIZABETH BECKMEYER, ADMINISTRATRIX OF THE ESTATE OF WILLIAM F. BECKMEYER, DECEASED, PLAINTIFF-APPELLEE,

v.

WIEBOLDT STORES, INC., A CORPORATION, DEFENDANT-APPELLANT. FAULDS OVEN & EQUIPMENT COMPANY, INC., PLAINTIFF-APPELLEE,

v.

WIEBOLDT STORES, INC., A CORPORATION, DEFENDANT-APPELLANT. THE HOME INDEMNITY COMPANY, A CORPORATION, SUBROGEE OF FAULDS OVEN & EQUIPMENT COMPANY, INC., A CORPORATION, PLAINTIFF-APPELLEE,

v.

WIEBOLDT STORES, INC., A CORPORATION, DEFENDANT-APPELLANT. ADA M. ZIELKE, ADMINISTRATRIX OF THE ESTATE OF WILLIAM HENRY ZIELKE, DECEASED, PLAINTIFF-APPELLANT,

v.

FAULDS OVEN & EQUIPMENT COMPANY, INC., A CORPORATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. DANIEL J. McNAMARA, Judge, presiding. Judgment affirmed.

MR. JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT.

Rehearing denied December 17, 1968.

This is the second appeal in this case. The first appeal, LaSalle Nat. Bank v. Wieboldt Stores, Inc., 60 Ill. App.2d 188, 208 N.E.2d 845, was decided in 1965. The six lawsuits which were consolidated and tried involve claims arising from an explosion in the Wieboldt Department Store (Wieboldt) in River Forest, Illinois, on March 6, 1955, while employees of Faulds Oven & Equipment Co. (Faulds) were installing a gas fired bakery oven. In the explosion four Faulds workmen, Henry C. Lavery, William F. Beckmeyer, Fred Watschke and John Kalas, were killed. William Henry Zielke, assistant stationary engineer for Wieboldt, was also killed.

Wrongful death actions were filed against Wieboldt by the administrators of the estates of three of the Faulds' employees before mentioned and a similar action was brought by the estate of Zielke against Faulds. In addition to the wrongful death action a property damage claim was filed by Faulds for the amount due for loss of the oven and Wieboldt counterclaimed for damages to its building. Home Indemnity Company, a subrogee of Faulds, filed an action against Wieboldt, seeking to recover the amount paid in workmen's compensation because of the death of John Kalas.

On the first trial in 1962 the jury found Wieboldt guilty of negligence and returned verdicts of $20,000 for the estates of each of the Faulds' employees. A verdict was directed in favor of Faulds for property damage and judgment was entered thereon in the sum of $2,936.58. Verdicts of not guilty were directed in the claim of Zielke's estate against Faulds and against Wieboldt in its counterclaim for damages to the store building. On appeal the Appellate Court decided that it was Wieboldt's duty to inspect and maintain the gas lines in question, that they failed to do so and hence were guilty of contributory negligence. LaSalle Nat. Bank v. Wieboldt Stores, Inc., supra, at 207-8. The court reversed, however, and remanded the judgments against Wieboldt in the Faulds' employee death cases because of prejudicial argument by the plaintiffs' counsel.

On the second trial the jury returned verdicts against Wieboldt in favor of the estates of the Faulds' employees in the sum of $20,000 each. Home Indemnity, as subrogee of Faulds, was awarded $8,000 for death benefits paid to the estate of John Kalas and the Faulds Company was awarded $4,651.71 for damages to its property. In the death action brought by the administratrix of Zielke against Faulds, the jury returned a verdict in favor of Faulds. The trial court entered judgment on these verdicts.

Wieboldt and the administratrix of Zielke have taken this appeal. They contend that the court erred in instructing the jury that Wieboldt had a duty to extend the gas and electric lines to the place where the oven was being installed and that in failing to do so, it was negligent as a matter of law. Appellants also object to certain rulings made by the court with respect to the admission of evidence.

The facts regarding the explosion and resulting damages are fully set forth in the first appeal and the contentions of the appellants are in large part resolved therein. LaSalle Nat. Bank v. Wieboldt Stores, Inc., supra. Accordingly, a short summary of the facts will here suffice.

In January 1955 Wieboldt contracted to purchase a bakery oven from Faulds. The parties agreed that installation would take place over a weekend to avoid interference with the normal business operations of the store. It was also agreed that Faulds would install the oven "complete except for final gas, electric connections." The new oven arrived at the store during the evening of March 5, 1955, and the Faulds' crew consisting of Beckmeyer the foreman, Carlson, Lavery, Watschke and Kalas unloaded the oven parts and began to assemble the unit at about 7:00 p.m. The new oven required gas and electric service lines. Although both the old and the new ovens were gas fired, the connections on each were at different locations. In January 1955 a Wieboldt employee, in preparation for the installation of the new oven, put a "T" connection in place of an elbow in the gas line located in the crawl space beneath the bakery floor, thus providing a connection from which to run new gas lines to the new oven. On Sunday morning, March 6, 1955, William Zielke came on duty for Wieboldt. The oven was then in position and Zielke ran a gas line from the "T" which had been installed earlier over to the corner where the oven was located. After completing the connections, all Wieboldt employees, except Zielke and a watchman whose duties brought him to the bakery room only periodically, left the building. The gas supply valve was turned on and the oven was almost completely assembled by about 8:00 p.m. Carlson, an employee of Faulds, was inside the oven connecting the revolving pans when the explosion occurred, killing all the workmen in the bakery room with the exception of Carlson, who apparently was protected by the oven. From an examination of the damages and debris it appeared that the center of the explosion was located in the crawl space beneath the bakery floor and that the explosion resulted from the ignition of an accumulation of gas flowing into that space from the unplugged end of a gas line.

In this second appeal the appellants contend that the court erred in giving the following instructions to the jury:

"You are instructed that as a matter of law the obligation of bringing gas lines and electric lines to the new oven and connecting them to the oven was that of Wieboldt Store, Inc."

That instruction was in accord with the determination upon the prior appeal that Wieboldt, under its contract with Faulds as construed by the court, had not parted with control of its gas lines. Faulds was to build the oven complete with gas piping on the inside, and the burden of extending the gas lines to the oven was on Wieboldt. On this issue the Appellate Court said (p 205):

"We conclude, therefore, that the trial court did not err in refusing to submit to the jury the interpretation to be given the contract. The court's interpretation, finding Wieboldt had not delegated its duty to exercise control and supervision over the gas lines, was manifestly reasonable and the only consistent interpretation which ...


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