APPEAL from the Circuit Court of Lake County; the Hon. LLOYD
A. VAN DEUSEN, Judge, presiding.
MR. JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:
This action was brought by plaintiff, Millburn Mutual Insurance Company of Lake Villa (hereafter Millburn), against Northern Illinois Gas Company (hereafter NiGas), and defendant Walter C. Glaze, d/b/a Glaze Construction Company (hereafter Glaze), to recover monies paid to its insured, Alex and Sylvia Geist, upon the destruction of the Geist home in an explosion and fire allegedly caused by the negligence of both defendants. The first trial ended in a mistrial. The second trial ended in a jury verdict finding in favor of plaintiff in its complaint against NiGas, but against plaintiff in its complaint against Glaze. NiGas appeals.
For the reasons stated herein, we affirm the judgment of the trial court.
The facts giving rise to this lawsuit are basically undisputed. Glaze Construction Company was employed as a subcontractor on a State highways improvement project in Lake County. On February 27, 1975, Glaze employees were using a backhoe to trench a drainage ditch located within the State right-of-way on the south side of Route 22 in Lake Zurich. The backhoe struck and pulled apart a buried gas service line which allowed natural gas under high pressure to migrate into the drains and then into the home of Alex and Sylvia Geist, located at 20 Old Mill Grove Road in Lake Zurich. Sylvia Geist and her daughter Starlett were home at the time but left the house after they noticed the distinctive smell of odorized natural gas and were told by Glaze employees to get out of the house. Shortly thereafter, the house exploded from the accumulated gas. The Geist home and all its contents were completely destroyed in the explosion and subsequent fire. As a result of this incident, the Geists' insurance company, Millburn Mutual, paid a total of $58,324.55 to their insured for total property damage and temporary living expenses.
Upon receiving payment from the insurance company, the Geists assigned any cause of action they may have had against NiGas and Glaze to the insurance company, and Millburn then brought this subrogation action against both defendants to recover the sums paid to their insured under the policy of insurance. In its complaint against Glaze, plaintiff alleged that on the date in question, Glaze employees negligently operated a backhoe which caused the severance of the gas pipe servicing the Geist residence, ultimately resulting in the gas explosion. In its complaint against NiGas, Millburn alleged that NiGas was negligent in failing to warn Glaze of the existence of the gas service pipeline and that NiGas had negligently installed the gas service line in 1961.
Prior to the commencement of the first trial, counsel for plaintiff announced in open court that a stipulation had been entered into by all parties:
"MR. ROUX: Frank Roux for the plaintiff.
Discussion has been had with both counsel for the respective defendants, and there is an agreement between all counsel that parties to the action will stipulate that the total amount of $58,324.55 was paid by Millburn Mutual Insurance Company to Alex and Sylvia Geist relative to a property damage loss which they suffered on February 27, 1975, and that the checks were made payable as follows:
On the structure, $35,000;
On personal contents, $19,000;
And temporary additional living allowance, $4,324.55
That these checks were accepted by Mr. and Mrs. Geist and cashed by them.
THE COURT: I gather then that there is no issue that the insurance company here, the plaintiff, is entitled, because of these payments, to be subrogated to the rights of the Geists in bringing this lawsuit, but I gather from what Mr. Riseborough said just before we went on the record that that stipulation does not encompass either defendant — if I'm not speaking for you, Mr. Jares, let me know — that neither defendant is stipulating that that is the amount of the loss actually suffered.
MR. ROUX: That's correct.
MR. RISEBOROUGH [counsel for defendant Glaze]: I think there's a difference in the valuation of the house, is there not? $1500 or something like that. It might turn out that that might not be in issue, but if they should put in the appraiser to come in, the appraiser actually, I think, appraised the house somewhat less than the insurance company paid.
MR. ROUX: We have no plans to introduce Mr. Dunlap's testimony to alter it.
MR. RISEBOROUGH: There shouldn't be any problem then.
MR. ROUX: There is also a stipulation between the parties admitting as to the corporate existence of the plaintiff.
THE COURT: So that that is not an issue of the case.
I'm still not certain from the defendants that the damage is in issue.
MR. JARES [counsel for defendant NiGas]: Your Honor, we wish to contest damages. We will stipulate that they paid the Geists these checks. That's the ...