Denniston v. Skelly Oil Co.

• Decision Date: 13 April 1977
• Docket Number: No. 76--139,76--139
• Citation: 362 N.E.2d 712,6 Ill.Dec. 77,47 Ill.App.3d 1054
• Parties: , 6 Ill.Dec. 77 Donald A. DENNISTON, Individually and as Administrator of the Estate of Norma Denniston, Deceased, Plaintiff-Appellee, v. SKELLY OIL COMPANY, a Foreign Corporation, Defendant-Appellant, and Robert L. Williams and Arlene Williams, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 712

362 N.E.2d 712

47 Ill.App.3d 1054, 6 Ill.Dec. 77

Donald A. DENNISTON, Individually and as Administrator of the Estate of Norma Denniston, Deceased, Plaintiff-Appellee, v. SKELLY OIL COMPANY, a Foreign Corporation, Defendant-Appellant and Robert L. Williams and Arlene Williams, Defendants-Appellants.

No. 76--139.

Appellate Court of Illinois, Third District.

April 13, 1977.

Rehearing and Certificate of Importance Denied May 24, 1977.

David R. McDonald, of counsel, with Lucas, Brown & McDonald, Galesburg, Sam C. Oliver, Tulsa, Okl., for Skelly Oil Co.

James J. Elson, of counsel, with Claudon, Elson, Lloyd & Barnhart, Ltd., Canton, for Robert L. Williams and Arlene Williams.

Robert C. Stoerzbach, with Barash & Stoerzbach, Galesburg, for plaintiff-appellee.

BARRY, Justice.

The action underlying this appeal was brought by Donald A. Denniston, individually and as the administrator of the estate of Norma Denniston, his deceased wife. The amended complaint alleged negligence on the part of the Skelly Oil Company, Robert L. Williams and his wife Arlene. The relief sought was money damages on behalf of the decedent's next of kin for her death, money damages for damage to the plaintiff's property and money damages on behalf of the decedent's estate for her pain and suffering and medical, hospital and burial expenses. Following the trial, the jury returned verdicts for the plaintiff on all three counts against all the defendants. The trial court entered judgment on these verdicts, and the defendants now appeal.

The plaintiff and his wife, the decedent, resided in Victoria, Illinois. They contracted with defendants Robert L. Williams and Arlene Williams to purchase a residence and acreage which was about four or five miles from Victoria, and about fifteen miles east of Galesburg, Illinois. One daughter, Donna Watters, and one son, Gary, were married and had their own families and no longer lived at home. Their other son, Robert, who was approximately 19, and their other daughter, Betty Jo, 11, still lived with their parents. The real estate closing was held on the 5th or 6th of April in 1972, and the Dennistons were to obtain possession thirty days later, about the 6th of May.

Williams and his prior wife had purchased the premises in June of 1970. At that time, there was no facility for a gas stove or gas clothes dryer. Early in September of 1970, a gas dryer was installed in the basement of the premises. Williams and his wife divorced in 1971 and his exwife took the gas dryer and most of the tubing with her. Williams was remarried in December of 1971, and in early February of 1972, he arranged for a plumber to hook up both a gas stove in the kitchen on the first floor of the premises and a gas dryer in the basement. The dryer belonged to his present wife, Arlene. The plumber assembled the system by using a 'T' connection in the basement, with one line going to the gas dryer in the basement and the other line running up through the floor of the kitchen to the gas stove.

The Dennistons were first shown the interior of the premises in early April of 1972 with a real estate sales representative. At that time the plaintiff viewed the entire premises, including the basement. Mr. and Mrs. Denniston on a later date went through the house a second time, and the plaintiff then was again in the basement to examine it. On that day, Mr. Williams was with the plaintiff in the basement. The dryer was still connected there. Williams testified that he explained to the plaintiff that the plaintiff had a choice of either gas or electricity for the dryer in the basement and that he also had a choice in the kitchen of either gas or electricity for the stove. However, the plaintiff testified that Williams never told the plaintiff that there were facilities in the basement for a gas dryer. The plaintiff did notice a gas line entrance through the outside wall into the basement. He did not follow the line in to see where it went. While in the basement, the plaintiff looked at the basement walls. The plaintiff told Williams that the plaintiff had a gas dryer at his Victoria home.

On April 28, Robert Williams disconnected the dryer and left the end of the gas line in the basement unplugged. He also left the end of the gas line in the kitchen unplugged, where the stove was disconnected. He did not tell any member of the Denniston family that the line was unplugged. Williams still had a few things in the house and he had agreed to make certain roof repairs to the garage. Williams was on the premises on May 6th, and the repairs were completed, and the only property he had left on the premises when he left that day were a couple of horses outside. On May 6th, Williams removed a connector from the end of the gas line that was inside the basement, since he needed it to use on the dryer at his new residence. He also disconnected the regulator from the cylinders and gas line on the outside of the house. The regulator belonged to his ex-father-in-law. It is a device which is necessary in order to activate a bottled gas system and functions to reduce the pressure from the tanks to the pressure utilized in the line. Without it, the system is inoperable. He said he had the connector plus two wrenches in his hand while he had a conversation with the plaintiff outside in the yard concerning the plaintiff's need to obtain a new regulator for the propane gas. The decedent also was in the basement with Mr. Williams on at least one of the visits while the gas dryer and the washer were still connected in the basement. The dryer did not obscure observation of the gas line in the basement.

On May 7th, the Denniston family had a fish fry in the yard of the premises. The plaintiff was in the house on that day, and showed his daughter, Donna Watters, his son, Gary, and several other members of the family throughout the house, including the basement area. There were no appliances in the basement at that time. Neither Gary Denniston nor Donna Watters observed the gas line in the basement. About midnight of the 7th, or early morning of the 8th, the plaintiff took a load of machinery to Dubuque, Iowa, on a trip that lasted overnight of the 8th and until the afternoon on May 9th.

On May 8th, the Skelly Galesburg office received a telephone call from the decedent for delivery of propane gas to the premises. That same day, Russell Squires, the cylinder delivery man from Skelgas, arrived at the residence at approximately 1:00 o'clock in the afternoon. One of the cylinders was partially full. Squires installed that cylinder, plus a full cylinder that he had brought, to a regulator and connected them to the line that was sticking out of the back of the house. He did not turn on the gas. He knocked on both the front and back doors, but no one answered. He then made out a ticket for the full cylinder he had delivered and wrote a note to the customer on the end of the ticket, stating that no one was home, he could not check out the system, and the gas valves were off. On the reverse side of the customer's copy, he also wrote that if they would call him, he would come back and check the line for leaks and the proper pressure on the regulator. He opened the front storm door and placed the ticket between the door and the door frame and closed the door. He never received any call after that to come out and check the lines. He did not later call the Denniston residence. The ticket was a standard delivery ticket used by Skelgas for the delivery of gas. He did not see the ticket again and did not ever receive an indication from anybody in the Denniston family or anybody else that any of them actually received it. He said that the ticket was of a neutral color much like a manila folder. Squires testified that he did not have any idea whatsoever whether the Dennistons normally used the front door or the back door of their home. He did not give instructions to any personnel in his company's office to call the Dennistons and tell them what was on the ticket. He said he had no knowledge of any kind that anybody employed by or connected with Skelly Oil Company in any way ever made any phone call to the Dennistons about the message on the ticket. Squires testified that the charge for the delivery is written on that ticket and that when a customer receives from Skelly Oil Company a ticket such as that, he usually finds nothing on the back. Squires testified that, after he left the property of the Dennistons he considered his job incomplete. Nevertheless, he also testified that he did not intend to do anything more unless he received a phone call from them. He said he was going about his business of other deliveries unless they called him. Mr. Squires testified that in an effort to check to see what the situation was in the basement about the gas line, he tried to see in the basement window near where the cylinders were situated. He saw nothing when he looked in the basement window as it was too dark. He said that, with his experience in the industry, one of the things he was trying to look for when he was looking in that basement window was to see if there were any open gas lines. He said Skelly employees do not attempt to enter a residence if no one is home. Squires testified that Skelly's standard procedure in checking a gas system for leaks is to use a manometer at the point of the installed appliance inside the house, that normally a checking out of the gas piping system goes with a delivery of any gas if it is a new customer, and that it would be more important then. Squires had been with Skelly for approximately twenty years and has attended twenty to twenty-five safety and training schools during that time.

The decedent, Norma Denniston, was the first member of the family to go to the new dwelling on May 9. She had been there about 10:00 that morning and had returned to Victoria. The family started to move furniture into the new residence that...