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Summers v. Northern Illinois Gas Co.

NOVEMBER 25, 1969.




Appeal from the Circuit Court of Cook County; the Hon. JACOB M. BRAUDE, Judge, presiding. Judgment affirmed.

MR. PRESIDING JUSTICE LYONS DELIVERED THE OPINION OF THE COURT. The defendant corporation, Northern Illinois Gas Company, appeals from a final judgment, entered on a jury verdict, in favor of the plaintiffs, Wilbur C. Summers and Jewell E. Summers, his wife, in the sum of $8,200. In this appeal, it contends that the trial court erred in allowing the case to be submitted to the jury on a res ipsa loquitur theory and in giving the jury certain instructions tendered by the plaintiffs. The defendant corporation also urges that the evidence does not support a finding of liability against it.

The plaintiffs brought this suit for the property damage resulting from a fire, allegedly gas-fed, in their two-story frame dwelling located in Steger, Illinois. No one was injured. The complaint contained two counts pleaded in the alternative. Count I was based upon a res ipsa loquitur theory and contained a general allegation of negligence based upon the defendant corporation's exclusive possession and control of the southeast corner of the basement wherein certain gas transmission lines, pipes and meters owned and maintained by the defendant corporation were located and wherein on March 2, 1962, a fire began which was communicated to the upper floors of the residence causing property damage to be sustained. Count II of the complaint contained five specific acts of negligence allegedly committed by the defendant corporation.

In its answer, the defendant corporation admitted that it owned, operated and maintained certain gas transmission lines or pipes and gas meters in that portion of the basement as alleged by the plaintiffs but denied that it was guilty of any negligence and that its gas was highly inflammable, combustible and explosive.

Eleven witnesses testified for the plaintiffs, nine of whom are important for the issues raised by this appeal. Two were occurrence witnesses, two were adverse witnesses employed by the defendant corporation, and one was an expert witness. Five witnesses testified for the defendant corporation, all employees of the defendant. At the close of the evidence presented by the plaintiffs, the trial court sustained the motion of the defendant corporation and struck count II of the complaint for failure of proof. The plaintiffs have not cross-appealed from that ruling. Only the res ipsa loquitur theory of the complaint and the accompanying evidence are before this court.

The two occurrence witnesses were the coplaintiff, Jewell E. Summers, and her daughter, Deborah. Deborah, who was sixteen at the time of the trial and ten when the fire occurred, testified that on March 2, 1962, two employees of the defendant corporation arrived shortly after lunch and left at approximately 2:30 p.m. after working in the basement for about an hour; that at approximately 4:00 p.m. on March 2, 1962, she smelled smoke and informed her mother, who checked the food which was cooking in the kitchen but noticed nothing unusual; that she then said she smelled gas whereupon her mother entered the dining room and, looking into the living room, saw flames shooting up; that Deborah also looked into the living room and saw flames shooting up from the southeast corner of the room at a height of approximately one foot from the floor; and that the fire was limited to this area. Deborah also stated that she was home all day on March 2, 1962, and no one was in the basement that day except the employees of the defendant corporation; that the basement was unfurnished and was completely vacant in the southeast corner. Nothing was stored there. There was vertical shelving but it did not extend to the southeast corner. In conclusion, Deborah testified that when she last went into the basement quite some time before the fire occurred, she did not smell any gas there.

Mrs. Jewell E. Summers testified that she and her husband had purchased their home in 1960; that in August or September, 1960, her husband had installed a new gas furnace and new hot water heater in their residence, placing them in the center of the basement; that the family had occasion to use these fixtures for over a year and never had any trouble with them; and that she never smelled an odor of gas in their home from the time they moved in until the fire occurred. She and her husband also remodeled their attic by raising the roof and converting the attic into a five-room second floor apartment. Her husband then wanted a new gas meter installed in the basement which would be used by the second floor tenants. She called the defendant gas company and on March 2, 1962, between 1:00 and 1:30 p.m., two employees arrived at her home to install this new meter.

Mrs. Summers admitted the two men into the basement and left them there to work as she returned upstairs to rejoin her daughter and her parents who were visiting that day. She did not see or hear the men depart after finishing their work in the basement. They did not say they were leaving. Her parents left about 3:00 p.m. On March 2, 1962, neither her parents nor any member of her family were in the basement. Only the two men employed by the defendant corporation were in the basement on that day.

Mrs. Summers substantially corroborated the testimony of her daughter regarding the fire which she saw in the living room at about 4:00 p.m. The flames were limited to the southeast corner of the living room and seemed to be coming from the basement. After calling the fire department, Mrs. Summers ran down the basement steps, looked into the basement, and saw the fire in the southeast corner. The flames were touching the ceiling. Mrs. Summers also said that the flames seemed to begin at the gas meters and the fire looked as if it was coming out of the meters. She saw this within two minutes after seeing the fire in the living room. The fire department arrived fifteen minutes later. In conclusion, Mrs. Summers testified that she heard no explosion before she saw the flames in the living room; that she was smoking on the day of the fire but only in the dining room and not in the front room; and that her parents also smoked.

Henry P. Martin testified that on March 2, 1962, he was a member of the Steger volunteer fire department and arrived at the Summers' home shortly after 4:00 p.m.; that the fire was then in progress; that after fighting it from the outside of the house, he and some of his co-workers made a foot-long hole in the front of the home in the southwest corner, put a hose line in the walling, and directed water upward to put out the smoke. The fire was extinguished in about thirty minutes. He went into the inside of the house and noticed that the living room was the most charred room in the home.

The parents of Mrs. Summers, Mr. and Mrs. Earl Davis, both testified that they did not go into the basement on March 2, 1962, and that the employees of the defendant corporation arrived at around 1:00 p.m. on that date but they did not know when these men left. The Davises also stated that they left their daughter's home at around 3:00 p.m.; that they both smoked on that day but only in the dining room where the television set was located and not in the living room; and that when they left they did not smell any gas or smoke nor did they see any fire. Mrs. Davis stated that she washed clothes in her daughter's basement on the day before the fire and was in the basement for about three hours on that day but did not smell any gas.

The other coplaintiff in this case, Wilbur Summers, testified that he had, in 1960, personally installed the gas furnace and hot water heater, placing them in the center of the basement, as well as the gas line which ran from these fixtures to the gas meter located in the southeast corner; that he could not recall if he or the defendant gas company had connected this gas line to the gas meter but that the gas company had checked the line after he had installed it and before they turned on the new gas furnace; that he had never detected an odor of gas in the basement from the time he installed the line in 1960 to the day of the fire in 1962; and that he never had any trouble with the gas furnace or hot water heater and that, after the fire, these fixtures did not lose their utility but rather only sustained smoke and water damage.

Mr. Summers also stated that he arrived home on March 2, 1962, at 4:15 p.m.; that he saw smoke coming from only the front end of the house at the southeast corner; that the fire was extinguished by about 4:30 p.m.; that representatives of the defendant corporation were present by then with two or three trucks and three or four cars; and that these men seemed to be working in front of his home. In conclusion, Mr. Summers testified that he went into his basement shortly after the fire was extinguished and both gas meters were gone. There was no fire damage in the area of the basement where he had installed the gas fuel line. He did not have to repair any floor joists in this area either.

The two adverse witnesses called by the plaintiffs were Earle Porter, a meter inspector for the defendant corporation on the day of the fire, and Robert Schnare, division construction manager for the Eastern division of the defendant corporation. Both men were present at the scene of the fire after it had been extinguished. Porter testified that he saw another employee, Richard Yost, remove the gas meters and regulator from the basement and put them into the back of his truck to be returned to the defendant's shop. Porter never saw this equipment again. He was in the basement after the fire and, along with Yost, conducted an air test of that portion of the gas fuel line belonging to the plaintiffs and not to the defendant corporation. Yost attached a testing device to the opening of the customers' fuel line and used an air pump to fill this pipe with eight pounds of air pressure. Porter thereafter saw the gauge go down to zero indicating that the Summers' fuel line did not hold air.

Porter went on to state that the defendant corporation owned a gas main located in the street adjacent to the plaintiffs' residence; that the gas in this main was under a pressure of twenty pounds per square inch; that the gas was transmitted from there to the Summers' residence and their gas meters by means of a 3/4" underground service pipe which entered their home through the southeast corner of the basement wall; that inside the basement was located a 3/4" valve, a regulator, some pipe fittings, and the meters; and that the purpose of the regulator is to reduce the gas pressure from ...

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