Paul Harris Furniture Co. v. Morse

• Decision Date: 26 November 1956
• Docket Number: Nos. 33924,33927,s. 33924
• Citation: 139 N.E.2d 275,10 Ill.2d 28
• Parties: PAUL HARRIS FURNITURE COMPANY et al., Appellants, v. William MORSE et al., Appellees.
• Court: Illinois Supreme Court

Page 275

139 N.E.2d 275

10 Ill.2d 28

PAUL HARRIS FURNITURE COMPANY et al., Appellants, v. William MORSE et al., Appellees.

Nos. 33924, 33927.

Supreme Court of Illinois.

Nov. 26, 1956.

Rehearing Denied Jan. 23, 1957.

Earl S. Hodges, Springfield (Duane L. Traynor, Springfield, of counsel), for appellant A. J. Walker.

Harry I. Hannah, and John J. Yelvington, Mattoon (Joseph P. Smith, Jr., Mattoon, of counsel), for certain appellees.

LeForgee, Samuels & Miller, Decatur (Carl R. Miller, and Jerald E. Jackson, Decatur, of counsel), for other appellees.

DAILY, Justice.

The plaintiffs, Paul Harris Furniture Company, Helen B. Wyatt and William Wyatt, doing business under the name and style of Hotel Byers, and Singer Sewing Machine Company (hereinafter referred to respectively as Harris Furniture, Hotel Byers, and Singer) each brought suit in the circuit court of Coles County to recover damages to their property resulting from a series of explosions and fires caused by propane gas which escaped from an underground propane gas tank located behind the City Drug Store in Mattoon, Illinois. The defendants in each of the three causes were the same and the three suits were consolidated for trial.

The essential facts are fully set forth in the opinion of the Appellate Court, reported in 7 Ill.App.2d 452, 130 N.E.2d 16. We restate them here only for the purpose of clarifying our opinion.

Broadway is one of the main east-west avenues in the business district of Mattoon. It is intersected at right angles by Sixteenth Street, which runs north and south, and, one block west of Sixteenth, by Seventeenth Street. One-half block south of Broadway is an alley which runs east and west between Seventeenth and Fifteenth streets. About seven feet under the surface of the alley is a sewer, the fall of which is toward the west from Sixttenth Street to Seventeenth Street. On the southeast corner of Broadway and Sixteenth Street is a shoe store. City Drug Store is next door to the east. About half way between Sixteenth and Seventeenth streets on the south side of Broadway is the store owned by Harris Furniture, which extends all the way back to the alley. The first floor of the next building to the west is occupied by Singer, and the next building to the west, being at the southeast corner of Broadway and Seventeenth Street, is the Hotel Byers, which in part extends all the way back to the alley. The sewer in the alley is connected to the basements of each of plaintiffs' buildings by laterals.

On October 23, 1951, City Drug Store contracted with defendants Morse and Neff, doing business under the name and style of Automatic Heat Company (hereinafter referred to as Automatic Heat,) for the installation of certain heating equipment, together with a 500-gallon underground tank for the storage of liquid propane gas. Thereafter, sometime in November, 1951, Automatic Heat ordered from defendant Acme Butane Company, Inc. (hereinafter referred to as Acme) such an underground storage tank to be installed on the City Drug Store premises by Acme. At that time the tank here involved was on Acme's storage lot. Prior thereto, on August 31, 1951, Acme had ordered a 500-gallon underground tank from defendant General Tank Company, a sales agency of defendant McNamar Boiler and Tank Company (hereinafter referred to as McNamar). On September 4, 1951, the tank (later installed behind City Drug Store,) identified as tank E-6054 and manufactured by defendant McNamar, was received by Acme and placed on its storage lot. Between September 7 and 9, Acme received the Data Report covering said tank, a form required by the American Society of Mechanical Engineers Code, usually referred to as the A.S.M.E. Code, and by the rules and regulations of the State Fire Marshal. On that Data Report appeared '18. Drain connection . . . (size) in,' and this blank was not filled in. The tank weighed about 1600 pounds, had two openings on the top, and had one opening or drain connection in the bottom constructed for the installation of a 3/4-inch plug with screw threads on it. Before being sold by General Tank, McNamar had subjected it to a hydrostatic test in which plugs covered with a heavy paint-like compound were inserted in each opening and the tank filled with water to a pressure of 400 pounds.

When the Data Report was received by Acme, the Acme manager took it to the storage lot and checked the tank in question. He saw two openings in the top of the tank, but failed to see the drain opening in the bottom. The tank remained on Acme's lot from the day it was received on September 4, 1951, until November 26 or 27, 1951.

On November 25, 1951, Automatic Heat requested A. J. Walker, doing business under the name and style of Walker Construction Company, (hereinafter referred to as Walker,) to dig an excavation behind City Drug Store for the installation of the tank. In making such excavation, Walker's employees cut through several tile about three feet underground which ran into the sewer in the alley. Walker knew the tile had been cut, but he did not repair or replace them nor did he notify anyone of the fact the tile were broken.

Acme removed the tank from its storage lot on November 26 or 27, 1951, and took it to the excavation behind the City Drug Store where it was lowered into the ground. Acme did not give the tank a protective coating before placing it in the ground, although such coating is required by the National Board of Fire Underwriters. After the tank was installed, Walker backfilled the excavation and placed a concrete protective housing over the dome of the tank.

On January 24, 1952, Acme placed 425 gallons of propane gas in the tank. On January 27, 1952, a steamlike substance was seen rising from the ground in the vicinity of the tank and there was a flash of light and fire behind City Drug Store. About ten or fifteen minutes later, there were violent explosions in the Harris Furniture Store and the Hotel Byers and these buildings caught fire. The property of all three plaintiffs was severely damaged.

After the fires and explosions the tank was removed from the ground by Acme. There was no plug in the bottom outlet, and an expert witness testified that at the time of removal 'inside the tank opening on the threads of the coupling there was paint or something.' Undenied expert proof at the trial showed that the explosions and fires were caused by escaping gas from the tank which eventually flowed into the sewer and came in contact with an electric motor operating in the basement of one of the buildings, and a gas pilot light and a burning fire in the other building.

At the trial, proof of damages was made pursuant to a stipulation entered into by all of the parties, which will be set forth later herein. Pursuant to that stipulation, Harris Furniture scheduled a total loss of $67,992.19, and gave credit for $8940.34 received from Acme, leaving an uncompensated loss of $59,051.85. Hotel Byers scheduled a total loss of $111,394.18, and credited $18,391.61 received from Acme, leaving an uncompensated loss of $93,002.57. The Singer schedule shows a total loss of $8122.85, with a credit of $1611.47 received from Acme and leaving an uncompensated loss of $6511.38.

At the close of plaintiffs' case, Automatic Heat Company was dismissed on motion for directed verdict. Prior to trial, Acme made a settlement with plaintiffs for the amounts mentioned above, took a covenant not to sue, and was dismissed without prejudice. As to the remaining defendants, the jury returned guilty verdicts and awarded the following damages: Harris Furniture $8940.34 Hotel Byers $18,391.61, and Singer $1611.47, these being identical to the amounts which the respective plaintiffs received from Acme under the covenant not to sue. Thereafter the trial court denied the motions of McNamar and General Tank for judgments notwithstanding the verdicts, granted Walker's motion for judgment notwithstanding the verdict, denied the notions of plaintiffs for judgments in their favor for the amounts of uncompensated loss shown in their schedules, and denied plaintiffs' alternative motions for a new trial solely on the issue of damages.

On appeal, the Appellate Court reversed the order denying the motions of McNamar and General Tank for judgments notwithstanding the verdicts and the judgments entered on such verdicts, reversed the order granting Walker's motion for judgment notwithstanding the verdict and the judgment entered in accordance therewith, remanded the case to the trial court with directions to enter judgment against Walker for the amount of plaintiffs' verdicts, and affirmed the order denying plaintiffs' motions for judgments notwithstanding the verdicts or, in the alternative, for a new trial solely on the issue of damages. We have granted leave to appeal both to the plaintiffs and Walker in order to further review the case.

Considering first the question of the liability of McNamar Boiler and Tank Company and its sales agency, General Tank Company, hereafter referred to together as the manufacturer, we are confronted on this appeal with the question of whether there is any competent evidence, standing alone, together with any reasonable inferences to be drawn therefrom, taken with its intendments most favorable to the plaintiffs, to support the charge that said manufacturer was negligent. If not, defendant manufacturer's motion for judgment notwithstanding the verdict should have been allowed, and the Appellate Court was correct in reversing the judgment entered on the verdict against said defendant. Lindroth v. Walgreen Co., 407 Ill. 121, 94 N.E.2d 847.

An examination of plaintiffs' complaints shows that their entire case against the manufacturer is based on the charge that said manufacturer delivered the tank to Acme without supplying a plug for the drain hole in the bottom of the tank. All the other charges of negligence against this defendant-misrepresentation, breach...