McClure v. Hoopeston Gas & Elec. Co.

• Decision Date: 19 April 1922
• Docket Number: No. 14293.,14293.
• Citation: 135 N.E. 43,303 Ill. 89
• Court: Illinois Supreme Court
• Parties: McCLURE v. HOOPESTON GAS & ELECTRIC CO.

303 Ill. 89

135 N.E. 43

McCLURE

v.HOOPESTON GAS & ELECTRIC CO.

No. 14293.

Supreme Court of Illinois.

April 19, 1922.

Error to Appellate Court, Third District, on Appeal from Circuit Court, Vermilion County; Walter Brewer, Judge.

Action by Mina McClure against the Hoopeston Gas & Electric Company. Judgment for plaintiff was affirmed by the Appellate Court (221 Ill. App. 668), and defendant brings certiorari.

Affirmed.Vause & Kiger, of Mattoon (Lindley, Penwell & Lindley, of Danville, of counsel), for plaintiff in error.

Gunn & Platt, of Danville (Walter T. Gunn, of Danville, of counsel), for defendant in error.

CARTER, J.

Defendant in error recovered a judgment in the circuit court of Vermilion county against plaintiff in error for $3,200 in an action on the case for damages from a fire alleged to have been caused by the ignition of gas, escaping from a defective pipe carrying illuminating gas furnished by plaintiff in error to the apartment building owned by defendant in error. After a trial by the court and jury, a judgment was entered on the verdict for $3,200, and the case was taken by plaintiff in error to the Appellate Court, where the judgment was affirmed. It has been brought here by petition for certiorari.

The plaintiff in error is a corporation engaged in the business of furnishing gas and electricity for commercial purposes to the residents of the city of Hoopeston. Gas is conducted through pipes to the various residences, including the apartment building of defendant in error. The testimony shows that the apartment building in question was three stories high, and that there were four four-room apartments or flats on each floor; that defendant in error, her husband, and daughter occupied the south apartment on the first floor; that a small air shaft about 14 inches square ran up through the center of the building and connected with various apartments; that the air shaft in the apartment occupied by defendant in error ran through a closet opening into the kitchen; that in this closet was located a gas meter, connected with a gas stove; that pipes connecting with the gas main in the street ran into each apartment, being connected with the gas meter therein, which was in turn connected with what is called a hot plate, or a gas stove. Each apartment in the building thus had its own meter, and the tenant paid for the gas he consumed on the slot principle-that is, each meter was provided with a slot, wherein a 25-cent piece could be dropped, and when 25 cents' worth of gas had been consumed the meter automatically shut off further gas until another 25-cent piece was dropped in the slot. Once a month an inspector for the gas company collected the money out of each meter. The evidence for plaintiff in error tends to show that, when this gas equipment was installed in the building, it was made with the agreement that, if defendant in error would place a gas plate or stove in each apartment, plaintiff in error would install the necessary pipes, meters, and connections without charge, and that no charge was ever made by plaintiff in error for any part of the gas equipment in the building, except for the hot plates and the stoves. The apartment occupied by defendant in error and her family originally had a hot plate therein, but about a year before the fire a gas stove was substituted.

James C. McClure, the husband of defendant in error, testified that after the change was made from the hot plates to ranges he noticed at different times a strong odor of gas in his own and other flats in the building; that he had observed leaking gas in the building several times during the year preceding the fire, particularly in April or May; that he had noticed leaking gas in the northeast corner of a flat on the third floor, and there had been intervals that gas had leaked in the building from August, 1918, to the time of the fire, in August, 1919; that often, when employees of plaintiff in error came to read the meter, he called their attention to escaping gas and asked them to correct it, but they always reported, after searching, that they could not find any leak; that he telephoned the office of plaintiff in error three or four months before the fire, and complained of a strong odor of gas, and asked to have it repaired; that on the morning of the fire he got up about 5:30, and both he and his wife noticed a strong odor of gas, but breakfast was prepared on the gas range, and about 6 o'clock he discovered that the leak was at a gasket or knuckle that joined the meter on the pipe connecting with the gas range; that he touched a match to the leak, and a flame shot out about an inch wide and about 5 inches long. His wife testified that she also examined the gas pipe, and lit the gas escaping therefrom with a match, and then blew it out. The husband testified that after he had blown out the flame he began trying to reach the plaintiff in error's office by telephone, which he finally succeeded in doing shortly after 7 o'clock, and asked for the manager, Austin, and, on being told that Austin was out of the city, he talked with Austin's son, who was an employee of plaintiff in error, and explained to him about the leak and asked him to send some one out to fix it right away, and advised him of the extent of the leak by telling him of the flame that was caused when he lighted the escaping gas; that Austin said they could not fix the leak that day, as they had started a job in another part of the city, which they had to finish, but would get to his place the next day. Defendant in error left the building with her daughter to go to a train about 6:30 in the morning, and it was after she left that her husband succeeded in reaching plaintiff in error over the 'phone. The husband further testified that about 8 o'clock, leaving no fire or light in the flat, and leaving the windows open, but locking the doors, he personally went to plaintiff in error's office to tell again about the leak and ask to have it fixed as soon as possible. He also said that he would like to have a change made in the pipes in the basement.

The testimony on the part of the plaintiff in error tended to show that he seemed more anxious to have the pipes changed in the basement than to have the gas leak fixed in his apartment; that he told them that, if he had a wrench, he could fix the leak himself. The evidence on the part of some of plaintiff in error's employees, as well as one of the tenants in the flat above that of defendant in error, was to the effect that McClure talked over the 'phone with an employee of plaintiff in error about fixing the leak, and also about changing the pipes in the basement. McClure testified that one of the employees in the office of plaintiff in error stated that they would send out men at once to fix the leak, and three employees made preparations to go to the apartment building to make the repairs; that after he had been so informed he started back to the building and had proceeded about half the distance when he heard the alarm of fire, and on reaching the building found that the fire was in his own flat. The testimony of the witnesses on behalf of plaintiff in error tends to show that the alarm for the fire was shortly after 8 o'clock in the morning. The weight of the evidence found in the record would tend to show that the fire occurred before 9 o'clock-probably between 8:30 and 8:45 in the forenoon. The fire burned up through the air shaft from defendant in error's flat to the third floor, destroying much of the roof and doing considerable damage to the west half of the third floor and the south side of the first floor, burning most of the personal effects in defendant in error's flat. The gas meter for her flat was on the south side of the partition, towards the side where the fire was. McClure testified that he had been told by plaintiff in error's employees never to move the gas meter nor to do anything with the pipes himself.

The fire department of the city of Hoopeston responded to a call to the fire and put it out. The chief of the department testified that, judging by where the fire was the greatest, it started in a lower room close to the air shaft; that there was a gas stove in the apartment which he was told was occupied by defendant in error; that there was a smell very much like gas around there, but there was too much fire to distinguish any flames that indicated the burning of gas. Mrs. Sherfield, who lived on the second floor just above defendant in error's flat, was attracted on the morning of the fire by a smell of burning wood, and saw a light blaze through defendant in error's kitchen. Another tenant, Clarence Matthews, noticed the smell of escaping gas at different times before the fire, and testified he had notified the company when a representative came to collect for the meter, but was told they could not locate it; that the escaping gas was worse in the kitchen close to the gas stove. His wife, Lillie Matthews, testified to the same effect. C. E. Wyatt, another tenant in one of the flats in the building, testified that he was in his garden when a lady called his attention to the fire, and he attempted to gain entrance to the McClure flat to turn in an alarm by telephone, but found the door locked; that he could see the fire inside, and saw that the linoleum was burning; that he heard the fire whistle, and, knowing the alarm had been given, went to his own apartment to rescue some of his personal property; that he noticed the flames were coming from the center of the building. Othie Bruten, who was standing near the defendant in error's flat shortly after the fire broke out, helped move a cook stove out of the building, and it appeared from the testimony that this stove, having a fire in it, was in an apartment occupied by the O'Neals. The o'Neals lived on the first floor, and the O'Neal kitchen adjoined the closet in which the gas range of defendant in error's apartment was...