Hulke v. International Mfg. Co.

• Decision Date: 08 May 1957
• Docket Number: Gen. No. 10950
• Citation: 142 N.E.2d 717,14 Ill.App.2d 5
• Parties: Delbert HULKE and Stuart Hulke, a minor, by Delbert Hulke, his father and next friend, Plaintiffs-Appellees, v. INTERNATIONAL MANUFACTURING COMPANY, a Corporation, et al., Defendants, Skelly Oil Company, a Corporation, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 717

142 N.E.2d 717

14 Ill.App.2d 5

Delbert HULKE and Stuart Hulke, a minor, by Delbert Hulke his father and next friend, Plaintiffs-Appellees, v. INTERNATIONAL MANUFACTURING COMPANY, a Corporation, et al., Defendants Skelly Oil Company, a Corporation, Defendant-Appellant.

Gen. No. 10950.

Appellate Court of Illinois, Second District.

May 8, 1957.

As Amended on Denial of Rehearing June 3, 1957.

Putnam, Johnson & Alschuler, Aurora, for appellant.

O'Brien, Burnell & Puckett, Aurora, for appellees.

EOVALDI, Justice.

This action was brought to recover damages for severe personal injuries received by plaintiff, Delbert Hulke, and for minor personal injuries received by his son, Stuart Hulke, as a result of an explosion of liquid petroleum gas manufactured by defendant Skelly Oil Company under the trade name of 'Skelgas.'

The defendants were: International Manufacturing Company (dismissed before trial), Foundation Equipment Corporation of Illinois, Skelly Oil Company, and five individual defendants, constituting a partnership, doing business as 'Bunge's' (for convenience sometimes referred to hereafter as a single defendant). The case took almost a month to try and the record consists of more than 4300 pages.

The gist of the action is negligence of all parties named as defendants which proximately caused the injuries to plaintiffs. The injuries were received in connection with a propane gas explosion which occurred when plaintiff, Delbert Hulke, sought to reignite a salamander on a construction job of which he was foreman. Different charges of negligence were made against each of the defendants. The charges against defendant Skelly Oil Company, appellant herein (hereafter referred to as Skelly), were to the effect that it had negligently failed to odorize or sufficiently odorize, the propane gas and that it was liable as principal or employer for the negligent acts, if any, of the retailer of the gas the defendant 'Bunge's', its alleged agent or employee. The jury returned a general verdict for the plaintiff, Delbert Hulke, in the amount of $300,000 jointly against the three defendants, and for the minor plaintiff, Stuart Hulke, in the amount of $1,000, upon which the court rendered the judgment from which this appeal is taken. Only defendant Skelly appeals.

The theory of the plaintiffs is that the defendant, Bunge, and the defendant, Skelly, jointly entered into an agreement whereby Bunge became the agent for Skelly in the distribution of gas, and the allegation of the complaint is that Skelly negligently failed to odorize propane gas which Bunge sold its customers. Plaintiffs contend that both judgments should be affirmed because:

1. Negligence, contributory negligence and proximate cause, all inference to be drawn from the evidence, and the amount of damages are questions of fact for the jury.

2. Whether or not Bunge's were the agents of defendant Skelly was a question of fact for the jury.

3. Defendant Skelly concedes that it was negligence to connect 'Skelgas' to the portable liquid gas fired heater in this case without using an automatic shut-off device. Defendant Skelly is liable for this negligence because (a) Bunge's were agents of defendant Skelly, (b) defendant Skelly negligently permitted Bunge's, who were untrained and incompetent, to distribute 'Skelgas', and (c) defendant Skelly had a nondelegable duty to ascertain that an automatic safety shut-off device was used.

4. Plaintiffs have a right to collect all or any part of their judgments from all or any one of defendants in whatever proportion plaintiffs elect, so long as plaintiffs receive only one full compensation for their injuries. The payments made by defendants Bunge's and Foundation and credited on plaintiffs' judgments did not satisfy said judgments and no releases were given.

5. Defendant Skelly had a fair trial. The verdicts were what reasonable persons would expect from the evidence in this case.

A question raised by this appeal on the pleadings arises out of the court's striking special affirmative matters pleaded in defense by Skelly. These matters had to do with the alleged fact that plaintiff, Delbert Hulke, his employer, Sevrin Swaback, and Skelly, were at the time of the accident under the Illinois Workmen's Compensation Act, said accident occurring at a time when the first paragraph of section 5(b) of the 1951 Act was invalid and before it was replaced by the 1953 Amendment. Skelly alleged that Swaback paid the plaintiff Delbert Hulke's medical expenses, plus other compensation payments, to an amount approximating $60,000, and to the extent of such payments the damages, if any, of plaintiff Delbert Hulke should have been reduced and mitigated.

After all defendants had filed various post judgment motions, but before argument thereon, the defendants doing business as 'Bunge's' effected a settlement with the plaintiffs for the sum of $93,166.67 to Delbert Hulke and $333.33 to Stuart Hulke. The plaintiffs issued quit claim deeds, indemnity bonds and other documents to 'Bunge's', which documents Skelly claims constituted full releases or accords and satisfactions and thereby released all of the alleged joint tort-feasors, including Skelly. Thereafter, subsequent to decision by the Court of the various post judgment motions, the defendant, Foundation Equipment Corporation, effected a settlement with the plaintiffs, paying to Delbert Hulke the sum of $63,200 and to Stuart Hulke, $300. Documents of like effect to the above were issued by the plaintiffs to defendant, Foundation Equipment Corporation. Skelly has filed a motion with this court requesting that the said settlement be held to be a release, or an accord and satisfaction, thus fully releasing Skelly from further liability as an alleged joint tort-feasor. The motion was ordered by this court to be taken with the case.

Defendant Skelly's theory is as follows: That Skelly was released by the issuance of releases or by the entering into of accords and satisfactions by the other defendants as suggested above; That Skelly was guilty of no negligence proximately causing plaintiffs' injuries; that the propane gas was sufficiently odorized, as shown by the uncontradicted, uncontroverted and positive physical and scientific proof in the record and that the presence of odor was decisive in this matter; That the plaintiffs have failed to prove that 'Bunge's' was Skelly's agent or employee for the purposes concerning which 'Bunge's' were claimed to be negligent; That plaintiff, Delbert Hulke, was guilty of contributory negligence as a matter of law and failed to sustain the burden of proving that he was exercising ordinary care for his own safety at the time of the accident in question; That the trial court admitted improper evidence and excluded proper evidence, and certain conduct of plaintiffs' counsel was prejudicial error; That the court gave erroneous instructions and refused to give proper instructions to the jury, and the court erroneously refused to submit to the jury the special interrogatories submitted by Skelly; That the court erred in striking Skelly's special defenses and denying Skelly's motion to make Swaback a party to the action; That the verdict was grossly excessive; That the verdict was against the manifest weight of the evidence; That the court erred in denying Skelly's motion for judgment notwithstanding the verdicts in favor of each plaintiff; and that the court erred in denying Skelly's motion for a new trial against each plaintiff.

The facts were that 'Bunge's' owned and operated a general appliance store and service station in Elgin and sold 'Skelgas' at retail; that the Foundation Equipment Corporation sold a portable heater to a man by the name of Swaback, who was a general contractor in Elgin. Swaback was engaged in erecting a church in Elgin and purchased this portable heater or salamander. Plaintiff, Delbert Hulke, was 29 years of age and was construction foreman on the church job, being employed by Swaback. Plaintiff testified that Robert Bremmer, in December, 1952 came to the Brethren Church where he had been working for approximately 1 year, and asked him to 'come out and help him unload something out of his car; it was a gas salamander.' Plaintiff helped him to take it out of his trunk and set it on the church floor. 'It was not packaged. The only conversation I had with Mr. Bremmer was when I saw the salamander, I said, 'What does Swaback want with this thing?' He made the statement, 'This is for the Schneider job." * * * 'It was used the first time when the plasterers were working at the church. * * * I lit the machine during the time I was at the Brethren Church in the same fashion that I had been shown by the man from Bunge's. We later went to another project on South Grove Avenue in Elgin. That was the Schneider job, and consisted of putting in an addition on to the bowling alley, a basement and 2 stories. I believe we went there approximately the middle of January or first of February. The salamander was not moved to the Schneider job from the Brethren Church when I was transferred, but it was moved prior to the explosion by several laborers. I did not have anything to do with order it to be moved. Some other cylinders of gas were brought to the Schneider job, and they were secured from Bunge's. I did not have anything to do with ordering those cylinders of gas. The salamander was put into the basement of the Schneider job. I did not have anything to do with putting it into the basement, or with putting the cylinders of gas into the basement; the laborers did it.' On March 1, 1953, Hulke accompanied by his son, Stuart, went to the basement of the Schneider Bowling Alley where the salamander had been installed for the purpose of keeping the newly pcured concrete wall from freezing, and entered the basement and ascertained that the salamander was not lit. He opened the valve of the salamander and attempted to re-light...