Masters v. Central Ill. Elec. & Gas Co.

• Citation: 7 Ill.App.2d 348,129 N.E.2d 586
• Decision Date: 18 October 1955
• Docket Number: Gen. No. 10855
• Parties: J. Paul MASTERS and Susan T. Masters, Plaintiffs-Appellants, v. CENTRAL ILLINOIS ELECTRIC & GAS CO., a Corporation, Frank Wojcik and A. F. Wojcik, partners d/b/a Wojcik Construction Co., A. Reyner Eastman, Aubrey J. Gregory and Hilmer T. Anderson, partners, d/b/a Gregory Excavating Company, Defendants. Central Illinois Electric & Gas Co., a Corporation, Frank Wojcik and A. F. Wojcik, partners, d/b/a Wojcik Construction Co., and A. Reyner Eastman, Appellees.
• Court: United States Appellate Court of Illinois

Page 586

129 N.E.2d 586

7 Ill.App.2d 348

J. Paul MASTERS and Susan T. Masters, Plaintiffs-Appellants, v. CENTRAL ILLINOIS ELECTRIC & GAS CO., a Corporation, Frank Wojcik and A. F. Wojcik, partners d/b/a Wojcik Construction Co., A. Reyner Eastman, Aubrey J. Gregory and Hilmer T Anderson, partners, d/b/a Gregory Excavating Company, Defendants Central Illinois Electric & Gas Co., a Corporation, Frank Wojcik and A. F. Wojcik, partners, d/b/a Wojcik Construction Co., and A. Reyner Eastman Appellees.

Gen. No. 10855.

Appellate Court of Illinois, Second District.

Oct. 18, 1955.

Rehearings Denied Nov. 10 and 15, 1955.

Pedderson, Menzimer, Carl & Conde, Rockford, for appellants.

Hyer, Gill & Brown, Knight & Knight, Victor & Ghent, Rockford, for appellees.

EOVALDI, Justice.

This action for $60,000 was brought by the plaintiffs to recover damages occasioned by a gas explosion which demolished plaintiffs' newly constructed dwelling house and contents. The plaintiffs allege that the gas explosion was proximately caused by the negligence of the defendants who are Central Illinois Electric & Gas Co., which installed the gas line, Frank Wojcik and A. F. Wojcik, partners, d/b/a Wojcik Construction Co., who are the contractors who built the house, A. Reyner Eastman, who is the architect who supervised the construction, and Aubrey J. Gregory and Hilmer T. Anderson, partners, d/b/a Gregory Excavating Company, whose employee struck the gas service pipe with his grading machine, causing the pipe to be pulled loose in the basement of the house and causing the explosion.

At the close of plaintiffs' case the trial judge directed a jury verdict in favor of Wojcik Construction Co. and A. Reyner Eastman. At the conclusion of the trial the jury rendered a verdict in favor of plaintiffs and against the defendant, Central Illinois Electric & Gas Co., in the sum of $42,000 on which judgment was rendered on January 2, 1955. Said jury found Gregory Excavating Company not guilty. Defendant, Central Illinois Electric & Gas Co., filed a motion for a judgment notwithstanding the verdict of the jury and for new trial and both motions were granted by the trial judge on February 4, 1955. Plaintiffs filed a motion for a new trial as to Frank Wojcik and A. F. Wojcik, partners, d/b/a Wojcik Construction Co., A. Reyner Eastman and Aubrey J. Gregory and Hilmer T. Anderson, partners, d/b/a Gregory Excavating Company. The trial court granted said motion as to Gregory Excavating Company, and the petition for leave to appeal from said order granting a new trial was denied by our Court. The trial court denied the motion as to Wojcik Construction Co. and A. Reyner Eastman and entered judgment, from which this appeal is taken.

Plaintiffs' theory of the case is that the trial judge erred in granting the motion by Central Illinois Electric & Gas Co. for judgment notwithstanding the verdict and in granting it a new trial as there was ample evidence on which to base the verdict of the jury. Plaintiffs further contend that the trial court erred in directing verdicts in favor of Wojcik Construction Co. and A. Reyner Eastman at the close of plaintiffs' case, as, they argue, there was ample evidence introduced by the plaintiffs upon which the liability of said Wojcik Construction Co. and A. Reyner Eastman should have been determined by the jury.

The amended complaint is in four counts:

Count I is against the defendant, Central Illinois Electric & Gas Co., and it alleges ownership of the property in question in the plaintiffs; that plaintiffs contracted with Frank Wojcik and A. F. Wojcik, partners, d/b/a Wojcik Construction Co., as the general contractor to build for plaintiffs a dwelling house at a cost of $44,865, subject to extra and credits; that the plans and specifications for said dwelling house were drawn for plaintiffs by defendant, A. Reyner Eastman, a duly licensed architect, and he was employed by plaintiffs to supervise and approve the construction of said dwelling house as it progressed at a cost to plaintiff of 7% of the cost of the house; that as a part of said plans, said A. Reyner Eastman included a topographical map or plan showing the heights of the finished grading, which plan or map was available to all defendants herein; that Central Illinois Electric & Gas Co. at all times mentioned was a corporation engaged in the business, among others, of supplying natural gas to dwelling houses in and near the City of Rockford, Illinois, and as a part of said business installed pipes for the carrying, transportation and conveyance of said natural gas to said dwellings; that at all times the plaintiffs were in the exercise of due care for the safety of said dwelling house and the premises; that in the month of April, 1954, pursuant to a request by plaintiff, J. Paul Masters, the Central Illinois Electric & Gas Co. installed a 3/4 inch pipe line from Brookview Road into the basement of plaintiffs' dwelling house and installed a gas meter and turned natural gas into said 3/4 inch pipe, so that said natural gas under pressure passed into the said dwelling house and to the gas fired furnace that was located in the basement of said dwelling; that at said time and place the Central Illinois Electric & Gas Co., through its agents, was notified that grading was to be done in the future and that the said gas pipe should be installed deep enough so as not to interfere with said grading; that Aubrey J. Gregory and Hilmer T. Anderson, partners, d/b/a Gregory Excavating Company, were hired to grade the said premises in accordance with the topographical plan or map drawn by A. Reyner Eastman; that on May 22, 1954, one Zelmer Ware, an employee of said Aubrey J. Gregory and Hilmer T. Anderson, d/b/a Gregory Excavating Company, was sent by them to the premises to complete said finish grading and was instructed by Frank Wojcik and also by A. Reyner Eastman as to the desired grading and the level to be attained; that pursuant to said instructions said Zelmer Ware operated a tractor with an earth moving blade on it and cut the earth from the then existing grade to the desired grade; that in the process of so cutting the earth and moving it with said tractor, the blade thereof struck the said 3/4 inch gas pipe at a point approximately 20 feet south of the south foundation of the dwelling and approximately in the center of said lot, and moving said pipe so that it became disconnected in the basement of said dwelling house and allowed said natural gas to escape into said basement; that said gas pipe was uncovered where the grading machine had struck it and the pipe lay exposed to view; that said Zelmer Ware left the premises shortly after striking said gas pipe; that at approximately 4:15 p. m. on said day the natural gas which had escaped from the disconnected gas pipe exploded in plaintiffs' dwelling house and from the force thereof totally demolished the said dwelling house and the contents thereof; that the defendant, Central Illinois Electric & Gas Co., owed a duty to plaintiffs to install a natural gas pipe at a safe depth beneath the finished grade, but that said defendant negligently and carelessly failed to install said gas pipe at a safe depth beneath the finished grade and negligently and carelessly installed said gas pipe at a depth where it was struck by the tractor blade of said Zelmer Ware while he was moving earth at the proper depth as shown by said topographical map; that said carelessness and negligence contributed proximately to the explosion which demolished plaintiffs' dwelling house.

Count II of the complaint was against the defendants, Aubrey J. Gregory and Hilmer T. Anderson, partners, d/b/a Gregory Excavating Company, and in addition to realleging certain material portions of Count I, alleged that said defendants had a duty to inquire the depth and location of said gas pipe but negligently failed to do so and further negligently and carelessly, through their agent, operated said tractor so that the blade thereof struck said gas pipe and moved the same, as aforesaid, and negligently and carelessly failed to investigate the damage to said gas pipe at said time and place, and negligently and carelessly failed to immediately inspect said dwelling house for gas leaks and negligently and carelessly failed to notify the Central Illinois Electric & Gas Co. of the damage to said gas pipe, and that the said carelessness and negligence of said defendants as said time and place proximately contributed to said explosion which demolished plaintiffs' dwelling house.

Count III of the amended complaint is against Frank Wojcik and A. F. Wojcik, partners, d/b/a Wojcik Construction Co., and in addition to realleging certain material portions of Count I alleges that said defendants, as the general contractor, had a duty to inspect the installation of said gas pipe to see that it would not interfere with the final grading and to see that it was installed at a safe depth below the final grade, but defendants negligently and carelessly failed to inspect the position of said gas pipe and negligently and carelessly failed to see that it was installed at a safe depth below the final grade, and negligently and carelessly instructed said Zelmer Ware to cut said earth without ascertaining that the tractor blade would clear the said gas pipe, and that said carelessness and negligence contributed proximately to the explosion which demolished plaintiffs' dwelling house.

Count IV of the amended complaint is against the architect, A Reyner Eastman. In addition to realleging certain material allegations in Count I, Count IV charges that the defendant, Eastman, as the architect supervising said construction, had a duty to inspect the installation of said gas pipe to ascertain that it would not interfere with the final grading of said premises, and to ascertain that it was located at a safe depth below the final grade, and that he undertook as part of his duties the...