APPEAL from the Circuit Court of Cook County; the Hon. JOHN C.
FITZGERALD, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Defendants appeal from a judgment in favor of plaintiff Lillian Peluso as administrator for $519,000 arising from the death of her husband in an explosion and from a judgment in plaintiff National Engineering Company's (National) favor for $1,727 in punitive damages and for $151,306.91 in property damage occasioned at National's laboratory, the site of the explosion.
Defendants contend the trial court erred when it (1) prevented their theory of a natural gas explosion from being presented to the jury; (2) prevented cross-examination of Peluso's expert economist regarding reductions in deceased's future earnings by income taxes; and (3) permitted National to establish its property damage on a cost of repair theory without a proper foundation.
National contends this appeal must be dismissed because defendants have abandoned the original relief requested in their notice of appeal.
Plaintiff Peluso's complaint alleged that defendants' negligence on December 13, 1968, was the proximate cause of the death of her husband, Thomas, when a mixing machine filled with a chemical mixture of defendants, known as LOD939, exploded at National's laboratory where Thomas worked as a chemist. She prayed for damages for his wrongful death and for damages for the pain and suffering which he experienced during the period between the explosions on December 13, 1968, and his death on December 14, 1968.
National's four-count complaint in a separate cause was based upon theories of negligence, strict liability, wilful and wanton misconduct, and the breach of an express warranty. It prayed for both property and punitive damages arising from the explosion in its laboratory and plant at 1716 West Hubbard Street.
Both cases were consolidated and the following pertinent evidence was adduced at trial.
Henry W. Dienst, a vice-president of National in 1968
National designed, engineered and sold industrial mixing equipment. National's customers could test its equipment at its performance laboratory to see if it would meet their needs. Although National made mixers for use with pyrotechnic materials and for use with explosive materials, it never mixed explosives in its Hubbard Street laboratory. Standard mixers were made of carbon steel, but mixers for explosives were made of stainless steel in a streamlined design and were equipped with explosion proof motors. National's customers would select the type of mixer to be used for the test.
Robert J. Donat, an assistant chief engineer for National
He designed the mixer used in the laboratory on December 13, 1968. The mixer was not designed for mixing explosives. There was an exhaust fan above the mixer and a standard open-type motor beneath the mixer. After the explosion, a handle on the machine was missing and a chute under the bottom discharge door was bent.
Martin Dale Plejdrup, west coast sales representative for National
Defendant Joseph Philipson inquired about mixing 30 pounds dry weight of an inert thermite material. Philipson told him that an explosion proof motor and starter, an air operated discharge door, and other standard features for pyrotechnic mixing were not required. Philipson never warned of any hazard that might result if the material was not kept damp. When used to mix pyrotechnics, a mixer would generally be placed in a remote area in a building with a blow-out roof.
James Stewart, assistant sales manager for National
National was a specialist in mixers, but not in their customer's products. National would request its customers to send a representative to direct the mixing of their products. National would not mix explosives.
Philipson wanted to mix molybdenum trioxide and aluminum powder. Philipson said the LOD939 mixture was a pyrotechnic which would ignite and glow at a high temperature, but which would not explode. He would not have mixed the LOD939 if he knew it could have exploded.
Philipson, Thomas Peluso, and he mixed two batches of LOD939 on December 12, 1968. Philipson decided upon the volume and percentages of the various ingredients that would be used. They decided to leave the second batch in the mixer overnight. Philipson did not discuss the safety of leaving the mixture, but did suggest the wet mixture might pick up moisture from the air.
He saw Thomas Peluso in the laboratory the next morning before he left to answer the telephone. At approximately 8:55 a.m. a sharp cracking explosion blew the telephone receiver out of his hand. When he returned to the laboratory he found the mixer was charred and the discharge door was hanging.
On cross-examination, he admitted that Bert Troy, a National employee, had told him that he could see no reason for not mixing this material in the laboratory. Although he had previously testified it was not unusual for National to conduct tests on this type of material, he had meant the mixing of inert substances.
Defendant Joseph Philipson under section 60
He was a consulting engineer hired by the Link Ordinance Division of Singer General Precision Corporation. He was attempting to streamline the production process of LOD939 which was a heat producing material used to light the primary explosive in bombs. He had observed LOD939 being produced at a Link plant in Sunnyvale, California. The plant was on an abandoned NIKE missile site in a remote area. He told James Stewart that LOD939 was not an explosive. He also told Martin Plejdrup that the material was inert and that explosion proof motors, remote drive operation and close tolerance machining would not be required. He assured Plejdrup there was no danger if the material was not kept damp. Stewart told him the LOD939 should not be entirely dry. The burning rate of LOD939 depends upon the particle size of the material with the smaller particles burning faster.
The second batch of LOD939 which was mixed on December 12, 1968, and was stored overnight had been heated to remove any water. When the mixer was turned off the LOD939 appeared to be dry and the particles were smaller than the first batch and smaller than desired for production. He warned Stewart, outside of Thomas Peluso's presence, not to smoke in the laboratory. He never told Peluso to wear conductive shoes or asbestos work clothes. Although Link had used conductive bags because they prevented sparking from static electricity, he did not tell anyone at National that their nonconductive, polyethylene bags should not be used to store the mixture. He did not advise Peluso to use a remote motor on the mixer.
The main force of the explosion occurred near the mixer. After the explosion the mixer was charred and no LOD939 was present. He admitted it was probable the liberation of energy from the LOD939 killed Peluso and that his burns came from the LOD939.
C.E. Bert Troy, Technical Director for National
He did not recall discussing the mixture with anyone prior to December 12, 1968. LOD939 was a thermite which would release a great amount of heat, but would not explode. A temperature in excess of 900° F or 1100° F would be necessary to ignite a thermite. The presence of water would retard a thermite reaction. The mixer was suitable and safe for mixing LOD939. There were no gas lines into the laboratory and there were no gas leaks in National's gas system. The center of the explosion occurred below or at the discharge point of the mixer. He believed the thermite ignited and an explosion followed. Any mixture could be explosive under the right circumstances.
He was an investigator of explosives for People's Gas, Light and Coke Company. A chemical explosion involving a metallic or aluminum powder occurred in the laboratory. The explosion did not occur inside the mixer, but rather outside and all around it. No other fuel, either natural gas or oil, was involved in the explosion. There were two impact fractures to a gas line caused when the west wall of the laboratory was driven into the pipe by the explosion. The fractured gas pipe was an effect of the explosion and not a cause of it.
Officer Frank R. Kasky, a Chicago police department officer
He was a member of the Bomb and Arson Squad for 14 years. His investigation showed that the explosion originated around the mixer. He observed a silvery material throughout the room. In his opinion, this aluminum powder mixture was the cause of this explosion. He admitted that thermite materials would burn but not explode and that National's technical director referred to the mixture as being a thermite.
Edward J. Ryan, a serviceman for the gas company
He had no experience as an explosion or fire investigator. A three-quarter-inch gas pipe was broken off at a fitting near a gas meter.
Paul Martin Kierkegaard, chief chemist for FMC Corporation
LOD939 is an explodable thermite. The Bureau of Explosives classifies LOD939 as a Class B explosive. The Bureau of Mines and the National Fire Code rate aluminum as a very explosive material in dust form. The drier and finer the LOD939 became, the more likely it would have been to ignite and to burn. Whenever he conducted tests on LOD939, he had used a large room in a separate part of the facility and had employees wear protective goggles, conductive shoes and a flame resistant shop coat.
In his opinion, aluminum dust caused an explosion outside the mixer. Possible sources of ignition for the dust explosion included switches on the motors, friction from the mixer's doors or from tools used to scrape the mixer, static electricity from a lab technician's body, and charges found in polyethylene bags.
During cross-examination he admitted it took a temperature of 900° F to 1000° F to ignite the LOD939 and that a cement mixer with a nonexplosion proof motor was being used to mix LOD939 at Link's California facility.
After being asked to assume several facts including the fact that after the explosion two broken gas pipes were found, ...