APPEAL from the Circuit Court of Cook County; the Hon. P.A.
SORRENTINO, Judge, presiding.
MR. PRESIDING JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:
Plaintiff, Scott Litton Fugate, was severely injured by the explosion of a gas hot water heater located in the basement of an apartment building at 424 Clark Street in Aurora, Illinois. At the time he was in a second-floor apartment located directly above the heater. His complaint as amended contained a count of strict liability against defendants A.O. Smith Corporation, the manufacturer of the water heater, and Sears, Roebuck and Company, which sold it at retail, counts of general negligence (alleging the applicability of the res ipsa loquitur doctrine) and specific negligence against the administrator of the estate of J. Ogden Clark, the owner of the building, and G.W. Pearce, individually and doing business as G.W. Pearce Realty and Insurance Agency (hereafter Pearce), which managed the building, and a count alleging specific negligence on the part of Northern Illinois Gas Company, which supplied gas to the heater. Pearce filed a third-party complaint seeking indemnity against A.O. Smith, Sears and Northern Illinois Gas. As to A.O. Smith and Sears, Pearce alleged breach of expressed and implied warranties, active (as opposed to his passive) negligence, and strict liability; as to Northern Illinois Gas, Pearce alleged active negligence.
At the close of all the evidence the court directed a verdict in favor of Northern Illinois Gas on the third-party complaint of Pearce; motions for directed verdicts by other defendants and the other third-party defendants were denied; and motions for directed verdicts by plaintiff against all defendants but Northern Illinois Gas were reserved. The jury was given instructions covering all of the theories alleged in plaintiff's complaint, set forth supra. On Pearce's third-party claim the jury was given instructions as to breach of express warranty by Sears and breach of implied warranty by A.O. Smith. Pearce's tendered instructions as to the active negligence of Sears and A.O. Smith were refused. No instructions were submitted by Pearce covering the theory of strict liability of Sears or A.O. Smith. The jury was additionally instructed that as a matter of law plaintiff was entitled to recover damages from one or more of the defendants and it was the jury's duty to determine who should be held liable. The jury found for the plaintiff and against the defendants, the administrator of the estate of J. Ogden Clark and George Pearce in the sum of $143,000. The jury also found in favor of A.O. Smith and Sears on both plaintiff's complaint and Pearce's third-party claim. The court denied plaintiff's post-trial motions for judgments notwithstanding the verdicts against A.O. Smith and Sears or for a new trial against A.O. Smith, Sears, and Northern Illinois Gas.
Pearce appeals from both judgments. Plaintiff has cross-appealed as to A.O. Smith, Sears and Northern Illinois Gas. *fn1 In Pearce's capacity as defendant he makes the following contentions: (1) that assuming he was negligent, said negligence, as a matter of law, was not a proximate cause of plaintiff's injuries; (2) that as a matter of law he was not guilty of negligence; included are Pearce's contentions (a) that the court erred in ruling as a matter of law that the doctrine of res ipsa loquitur was applicable to the case; (b) that it was improper to submit counts of general negligence (under a res ipsa loquitur theory) and specific negligence to the jury; and (c) that the court erred in refusing to instruct the jury that defendant Pearce denied the applicability of res ipsa loquitur; (3) that the court erred in ruling as a matter of law that plaintiff had the status of "an invitee" in the apartment at the relevant time and that the court improperly excluded certain evidence allegedly relevant to this issue; (4) that the court erred in excluding evidence relating to plaintiff's employment record, other injuries he had sustained, his failure to file Federal Income Tax Returns, and his "habitual intoxication"; (5) that the court erred in denying Pearce's motion for a new trial based on newly discovered evidence; and (6) that the court erred in instructing the jury that as a matter of law plaintiff was entitled to recover from one or more of the defendants.
In Pearce's capacity as third-party plaintiff he contends: (1) that the court erred in failing to submit to the jury the issue of breach of express warranty as to Sears and breach of implied warranty as to A.O. Smith; and (2) that the court erred in directing a verdict in favor of Northern Illinois Gas and against Pearce.
Pearce does not argue that the damage award was excessive or that plaintiff was guilty of contributory negligence.
In plaintiff's cross-appeal he makes the following contentions: (1) that the court erred in failing to direct a verdict against the defendants Sears and A.O. Smith on the issue of liability or, in the alternative, that the jury verdicts in their favor were against the manifest weight of the evidence; and (2) that the jury verdict in favor of Northern Illinois Gas and against plaintiff was against the manifest weight of the evidence and that the court's action in directing a verdict in favor of Northern Illinois Gas and against Pearce on Pearce's third party claim prejudiced plaintiff's case against Northern Illinois Gas which as noted was submitted to the jury.
The pertinent evidence elicited at trial follows:
Glen Zelensek, a member of the Aurora Fire Department, testified for plaintiff. At 3:00 A.M. on February 13, 1962, he was called to the apartment building at 424 Clark Street in Aurora; it had been blown apart. After investigation it was determined that the gas hot water heater had caused the explosion. The tank portion of the heater was found about 500 yards from the building.
Nanis Crawford, the resident in the apartment plaintiff was visiting at the time of the explosion, testified for plaintiff. She had lived there for five years. Her daughter, Eileen Crandall, resided with her from time to time. Mrs. Crandall was institutionalized at a State Hospital and would come to the witness' apartment on weekends and occasionally for a week when given a pass. On the night in question her daughter and plaintiff arrived at the apartment at about 8:30 P.M. (the 12th of February). The three of them watched television and ate. She "dozed off a little bit" just prior to the explosion. She then heard a terrible noise, looked up and saw a hole in the floor and ceiling of the room.
George W. Pearce was called by plaintiff as an adverse witness under section 60 of the Civil Practice Act. He has been in the realty management business since 1950 and has managed the building in question since April 25, 1954. His duties include collecting rents and personally maintaining and inspecting the premises. On April 26, 1954, Pearce bought from Sears the "Homart" gas hot water heater which ultimately exploded. The heater was installed by Sears' employees within a week after the purchase. Pearce then called Northern Illinois Gas to inspect the installation. After receiving a phone call from a representative of the gas company, Pearce inspected the heater and found it in operating order. He saw the gas hot water heater during his periodic inspections of the basement of the building. Each month he would withdraw a bucket of water from the heater, as recommended, to keep down the lime content; the faucet for withdrawing the water was at the bottom of the heater. He did not know whether there was a temperature and pressure safety relief valve (hereafter a "T and P" valve) on the heater; he assumed all of the necessary safety precautions were on the heater when it was sold to him. On two occasions, between 1954 and 1960, the pilot light on the heater went out and Peace called Northern Illinois Gas to relight it. In March 1960 Sears replaced the thermocouple on the heater. From March 1960 until the date of the explosion Pearce continued to periodically inspect the premises and draw out water from the base of the heater. He was in complete control of inspecting and maintaining the heater. Mrs. Crawford was a tenant in the building at the time of the explosion. He knew that Mrs. Crawford's daughter visited her from time to time.
On cross-examination by counsel for Sears, Pearce testified that he could not recall who had installed the heater. On cross-examination by counsel for Northern Illinois Gas, Pearce testified that he didn't know whether there was a "T and P" valve connected to the heater when it was installed; that he didn't know what a "T and P" valve was. At his deposition taken about four years earlier, he had stated that there was such a device on the heater and that it was located at the top of the heater. During his inspections of the premises he did not inspect the "T and P" valve; at his deposition he testified to the contrary.
Upon reexamination by his own counsel, Pearce testified that he has never installed a gas hot water heater or had training in that field. He is unaware as to the types and locations of safety devices on gas water heaters; he has only drained fluid from the heater once a month. When he purchased the heater, no one from Sears told him about a "T and P" valve; he received no written literature relative to the heater; on recross-examination by counsel for Sears he testified that he was given a written warranty. Counsel for Pearce and Northern Illinois Gas then stipulated that when the gas company is called upon to inspect a new installation, it will do so and then turn on the gas and light the pilot light.
Edward McLean, an industrial engineer, testified for plaintiff. He visited the scene of the explosion two days after the accident. It was a "typical" steam explosion. He was of the opinion that the explosion was due to two interrelated factors. First, the temperature control valve, which is sold as an integral part of the unit and which serves to shut off the flow of gas to the heater when the water in the heater reaches a certain degree, malfunctioned. Thus gas continued to flow into the heater and the water temperature continually increased. Second, either there was no "T and P" valve on the unit or, if there was, it malfunctioned. There are different types of "T and P" valves, but their function is to prevent an explosion should the water in the tank become overheated. McLean did not find a "T and P" value during his investigation of the premises. The failure to have a "T and P" valve on the heater would be contrary to the national safety codes. The pressure in the tank thus built up, "resulting [in] a missile type ejection of the tank from and through the building."
On cross-examination by counsel for Sears, McLean testified that he looked at the pamphlets that accompanied the heater when it was sold. The instructions for installation state that the heater should be equipped with a "T and P" valve. If there was a "T and P" valve on the unit, it probably malfunctioned because of dirt build-up on portions of the valve. It should be opened manually at least once a year in order to check that it is in proper working order. The temperature control valve is located at the bottom of the tank and the "T and P" valve is at the top of the heater. On cross-examination by counsel for Pearce, McLean stated that there were three types of "T and P" valves. When asked if one needed expertise and certain instruments to determine whether a "T and P" valve was functioning properly, he responded that technically speaking this was correct. However, one type of valve, a diaphram type, is equipped with a little lever which one can lift and water will flow through the valve if it is in working order. This procedure should be followed at least once a year. On cross-examination by counsel for Northern Illinois Gas, McLean testified that the malfunction in the temperature control valve must have occurred either on the day of, or very shortly before, the explosion. On redirect, McLean testified that a "T and P" valve is a simple device costing about $12.
Plaintiff testified in his own behalf and stated that on the evening in question he met Eileen Crandall at a hot dog stand and she invited him to her mother's apartment. He had known Eileen Crandall for a year and had been to her mother's apartment before. He was sitting on a couch watching TV and just dozing off when the explosion occurred On cross-examination by counsel for Sears he stated that on the date of the explosion he resided with a friend in Aurora on New York Street. Before that he lived with a friend on Galena Street for a few days. He didn't have a permanent address in Aurora and was just working there at a summer resort; he had worked there one month. During 1961 he worked in Batavia, Illinois, and lived in the David Hotel in Aurora for "quite a while."
Marvin Salzenstein, a consulting engineer, testified for plaintiff. He had inspected parts of the water heater on two occasions. Based on these inspections he believed that the temperature control valve had malfunctioned. In response to a hypothetical question he gave his opinion that the explosion was caused by the excessive heating of the water tank and either the lack of, or the malfunction of, the "T and P" valve. He was of the further opinion that in 1954 good and accepted engineering practices called for the presence on the heater of a "T and P" valve as an integral part of the unit itself, i.e., the manufacturer should place such a valve on the unit and should not rely on those making the actual installation. A "T and P" valve should be opened manually once every six months so that any accumulated sediment may be flushed out. On cross-examination by counsel for Sears, Salzenstein testified that the "T and P" valve would be installed on a pipe which attaches to the top of the tank. On cross-examination by counsel for Pearce, Salzenstein testified that the temperature control valve had malfunctioned, but he did not know why. Plaintiff's Exhibit No. 23, the instruction manual given to a customer when Sears sells a heater, states in part:
"In order to assure the efficiency and life of the heater, it is important at frequent intervals to drain an amount of water sufficient to remove any sediment from the bottom of the tank. This will assure clean water at all times. The drain cock is threaded to receive a standard hose coupling."
It was the witness' opinion that the instructions were incomplete for failure to mention the necessity of periodically opening the "T and P" valve to assure it was functioning properly.
Four physicians testified for the plaintiff. In brief, plaintiff lost 75% use of his left leg due to the explosion, went through several operations on his leg, and spent over a year in various hospitals and restoration centers. It is unnecessary to further describe the medical testimony since Pearce has not raised any issues pertinent thereto.
Robert Hansen, a merchandise manager for Sears in Aurora, testified for the defendants A.O. Smith and Sears. He identified the "easy payment" order blank on which the purchase of the heater in question was recorded. It does not indicate who installed the water heater. When Sears installs a heater there is an installation charge; there was no such charge listed on the instant order blank. On cross-examination by counsel for plaintiff, Hansen testified that Sears purchases the heating unit from A.O. Smith and sells it at retail. Sears does not alter the unit in any way. In 1954 Sears sold "Homart" water heaters without a "T and P" valve attached thereto; it was an optional item.
Ronald Barclay, employed with Sears in the customer service department, testified for defendants A.O. Smith and Sears. He identified plaintiff's Exhibit No. 23 as the installation instruction manual that came with the heater. In March 1960 Sears replaced the thermocouple on the heater. On cross-examination by counsel for Pearce he stated that when the thermocouple was replaced in 1960 it was unnecessary for him to inspect the entire heater; he knew the thermocouple was the major problem with these heaters and therefore checked it and found it to be defective. Sears will install a water heater if requested by a customer.
Angelo Duncan, a manger of product engineering for A.O. Smith, testified for defendants A.O. Smith and Sears. He described the "Homart" water heater and then stated that it was Sears' policy not to permit shipment of a heater unless there was an accompanying installation instruction manual. Each unit comes with this manual and a guarantee. Both were introduced into evidence. On cross-examination by counsel for plaintiff, Duncan testified that it was foreseeable that the temperature control valve would fail within a short or long period of time. It is also foreseeable that upon failure of said valve the temperature or the pressure in the tank will build up, and unless there is a "T and P" valve, it is foreseeable that an explosion could occur. A.O. Smith relies on someone else to install a "T and P" valve; he stated, "we have to." At the top of page four of the installation instruction manual it states as follows:
"NOTICE IMPORTANT WARNING: It is imperative that an approved type of temperature and pressure relief valve be installed in the hot water line, close to the heater, (see Fig. 1 & 2 [set forth on page 2 of the manual]). This heater is guaranteed for a maximum working pressure of 127 1/2 pounds; failure to install this relief valve will void the guarantee and release the manufacturer of this heater and Sears, Roebuck and ...