Fugate v. Sears, Roebuck & Co.

• Decision Date: 08 June 1973
• Docket Number: No. 54476,54476
• Citation: 12 Ill.App.3d 656,299 N.E.2d 108
• Parties: Scott Litton FUGATE, Plaintiff-Appellee and Cross-Appellant, v. SEARS, ROEBUCK AND COMPANY, a Corporation, et al., Defendants-Appellees and Cross-Appellees. G. W. PEARCE, Individually and d/b/a G. W. Pearce Realty and Insurance Agency, Third-Party Plaintiff-Appellant and Defendant-Appellant, v. SEARS, ROEBUCK AND COMPANY, a Corporation, et al., Third-Party Defendants-Appellees and Cross-Appellees.
• Court: United States Appellate Court of Illinois

Page 108

299 N.E.2d 108

12 Ill.App.3d 656

Scott Litton FUGATE, Plaintiff-Appellee and Cross-Appellant, v. SEARS, ROEBUCK AND COMPANY, a Corporation, et al.,

Defendants-Appellees and Cross-Appellees.

G. W. PEARCE, Individually and d/b/a G. W. Pearce Realty and Insurance Agency, Third-Party Plaintiff-Appellant and Defendant-Appellant, v. SEARS, ROEBUCK AND COMPANY, a Corporation, et al.,

Third-Party Defendants-Appellees and Cross-Appellees.

No. 54476.

Appellate Court of Illinois, First District, Fifth Division.

June 8, 1973.

Goldsmith, Dyer, Thelin & Schiller, Aurora (Richard D. Schiller, Aurora, of counsel), for defendant-appellant.

Nat P. Ozmon, Horwitz, Anesi & Ozmon, Chicago (Nat P. Ozmon, Chicago, and Dario A. Garibaldi, Flossmoor, of counsel), for plaintiff-appellee and cross-appellant.

Seyfarth, Shaw, Fairweather & Geraldson, Chicago, for defendant-appellee and third-party defendant-appellee.

DRUCKER, Presiding Justice:

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. ¹ 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 3:30 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 not 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 line 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 Pearce called Northern Illinois Gas to relight it. In March 1960 Sears replaced the thermocopule 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...