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Oliver v. Peoples Gas Light & Coke Co.

MAY 17, 1972.

DENNA OLIVER ET AL., PLAINTIFFS-APPELLEES,

v.

THE PEOPLES GAS LIGHT AND COKE COMPANY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. NORMAN C. BARRY, Judge, presiding.

MR. PRESIDING JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:

Defendant, Peoples Gas Light and Coke Company, a corporation, appeals from a judgment entered in the Circuit Court of Cook County following a jury trial, awarding stipulated damages to the plaintiffs in the sum of $10,000.

The issues presented on appeal are: (1) whether there was any evidence that the fire in question was caused by gas; (2) whether liability can rest upon a choice between two views equally compatible with the evidence; (3) whether proof was presented that defendant was negligent; (4) whether it was the duty of the trial court to direct a verdict for the defendant or, in the alternative, to grant defendant a new trial; and (5) whether the trial court erred in refusing to give the jury a certain instruction requested by the defendant.

On Saturday evening, November 24, 1962, at approximately 9:00 P.M., a fire occurred at 10121 Avenue L, Chicago. The premises were owned by plaintiffs Denna and Robert Oliver. Plaintiffs John and Maxine Hoyt were tenants of the Olivers at the site of the fire, living in the first floor apartment. While viewing television on the evening of the fire, John Hoyt heard a noise which he took to be an auto accident. He went out the front door and, seeing nothing, he re-entered the house and went downstairs to the basement. When he opened the basement door, he was confronted by heavy black smoke. Hoyt then went to another basement door on the north side of the house in the rear. When he opened the door, Hoyt testified he saw flames and heavy black smoke coming from the south wall of the basement in the area of the two gas meters which had been installed and maintained by the defendant.

Mrs. Hoyt testified that she also heard a loud noise. She went to see if the tenant on the second floor had fallen while painting. She saw nothing, but upon returning to the first floor apartment she noticed heavy black smoke coming from the hot air register in the kitchen. Both Mr. and Mrs. Hoyt also testified that the house shook following the noise.

Hoyt then called the Fire Department and notified the landlord, Mr. Oliver, of the fire. When Mr. Oliver arrived the whole area of the basement near the gas meters was in flames. The west gas meter was no longer on its mounting and flames were coming from its pipe connection. The east meter, however, was in place on the wall. The fire extended from the basement upwards through the walls to the first floor, second floor and roof. The furnace remained intact but the ducts from the furnace were down and the electrical wiring was burned out.

Since the fire apparently originated in the area of the basement near the two gas meters, much testimony concerning the meters was received at trial. The two meters, one for the hot water heater and one for the second floor apartment, were installed by the defendant on December 28, 1953. Defendant installed each meter with both inlet and outlet pipes constructed of lead. The meters were suspended on the south wall of the basement by the lead connections. Five or six years prior to the fire of November 24, 1962, plaintiff Oliver detected a gas leak in the basement area. Defendant, after first failing to find such leak, eventually located it in the connection to the east meter and repaired the leak by replacing both lead connections to the east meter with pipe constructed of solid steel. The west meter remained with its original lead connections until the fire.

Differing testimony was heard at trial as to the exact location of the west meter following the fire. Mr. Oliver and Mr. Hoyt both testified the meter was north of its mounting on the south wall of the basement. A defense witness, Chester Flis, testified the west meter had melted and fallen to the floor directly below its mounting. Because of the location of the west meter, as testified to by Mr. Hoyt and Mr. Oliver, in relation to its original mounted position, plaintiffs at the trial presented a theory that the fire was caused by a gas explosion. Plaintiffs presented an expert witness, Marvin Salzenstein, a consulting engineer, who, over objection by the defendant, was allowed to express an opinion based on his observations of the burned premises in answering a hypothetical question as to the cause of the fire. Mr. Salzenstein concluded the cause of the fire in the hypothetical question could only be gas.

Following the opinion expressed by Mr. Salzenstein, defendant cross-examined the witness extensively. Defendant then presented an expert witness, Dr. Allen Hussey, a chemist, who answered a hypothetical question similar to the one posed to plaintiffs' expert witness by concluding the fire in question was not caused by gas.

After the presentation of all evidence at the trial, the jury returned a verdict in favor of the plaintiffs. It is from the judgment entered in the Circuit Court of Cook County based on such verdict defendant herein appeals.

The first issue presented for review is whether there was any evidence the fire in question was caused by gas. Defendant contends the opinion expressed by plaintiffs' expert witness, in answering the hypothetical question put to him, that the fire was caused by gas was based solely upon conjecture and, as such, was lacking any probative value and should have been disregarded. In support of its position, defendant relies to a great degree on the case of Schwartz v. Peoples Gas, Light & Coke Co. (1962), 35 Ill. App.2d 25. The court in Schwartz affirmed the decision of the trial court directing the verdict in favor of the defendant. The basis for the directed verdict was the fact that the opinion of plaintiffs' expert witness was mere conjecture and, as such, was without probative value. The instant case is easily distinguished from Schwartz, however, in that the expert witness in Schwartz arrived at his conclusions as to the cause of the fire in a gas stove by making an assumption which was not supported by any other evidence. The court in Schwartz stated this was quite clear from the information elicited from the expert on cross-examination. In the instant case, the plaintiffs' expert witness arrived at his conclusion based on the totality of circumstances surrounding the fire as well as his examination of the premises following the fire. Furthermore, upon cross-examination, the expert witness in the instant case maintained his stance that the only conclusion which could be drawn based on the totality of circumstances involved was that gas caused the fire.

• 1 We believe the opinion of the expert witness in the instant case, unlike the opinion of the expert witness in Schwartz, was sufficiently grounded in fact to be of some probative value to the jury and, as such, we reject defendant's contention that such opinion was mere conjecture.

The second issue presented by the defendant for review is its claim that liability cannot rest upon a choice between two views equally compatible with the evidence. Defendant bases this contention on the answers to those questions posed to plaintiffs' expert witness on cross-examination. When asked whether he had an opinion as to the exact location of a possible gas leak, plaintiffs' witness stated the leak was in the general vicinity of the gas meter but he did not know the precise location. When a more specific answer was sought, plaintiffs' witness stated he was unable to determine whether the leak occurred in the lead piping installed and maintained by the defendant or in the piping belonging to the plaintiffs. Based on this response, defendant claims liability cannot attach. In support of this claim, defendant reasons that if plaintiff was unable to form an opinion as to the exact location of the leak, the jury could not form such an opinion and therefore liability could not attach.

• 2 The law in Illinois in regard to defendant's contention is well settled. When the record is considered in its entirety and inferences drawn therefrom support the conclusions drawn by both sides, it is the function of the jury to draw the final conclusions as to the facts. (Finley v. New York Central R.R. Co. (1960), ...


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