Pioneer Hi-Bred Corn Co. of Illinois v. Northern Illinois Gas Co.

• Decision Date: 02 June 1975
• Docket Number: No. 46600,HI-BRED,46600
• Citation: Pioneer Hi-Bred Corn Co. of Illinois v. Northern Illinois Gas Co., 329 N.E.2d 228, 61 Ill.2d 6 (Ill. 1975)
• Parties: , 17 UCC Rep.Serv. 61 PIONEERCORN COMPANY OF ILLINOIS, Appellee, v. NORTHERN ILLINOIS GAS COMPANY, Appellant.
• Court: Illinois Supreme Court

Page 228

329 N.E.2d 228

61 Ill.2d 6, 17 UCC Rep.Serv. 61

PIONEER HI-BRED CORN COMPANY OF ILLINOIS, Appellee, v.NORTHERN ILLINOIS GAS COMPANY, Appellant.

No. 46600.

Supreme Court of Illinois.

June 2, 1975.

Brunon J. Komosa, of Jares & Komosa, Justin A. Stanley, George W. Hamman, Robert A. Helman, and Steven M. Rasher, of Mayer, Brown, & Platt, Chicago, and Roger V. Pierson, Princeton, for appellant.

Johnson, Martin, & Russell, Princeton, and Clausen, Miller, Gorman, Caffrey, & Witous, Chicago (Watts C. Johnson, Princeton, John J. Witous, and James T. Ferrini, Chicago, of counsel), for appellee.

SCHAEFER, Justice.

The plaintiff, Pioneer Hi,-bred Corn Company of Illinois (Pioneer), brought this action in the circuit court of Bureau County against the defendant, Northern Illinois Gas Company(Northern), to recover damages for property which was destroyed when escaping gas exploded, causing a fire in one of Pioneer's buildings.The complaint contained five counts; count I alleged negligence, count II alleged willful and wanton conduct, count III alleged breach of implied warranties of merchantability and fitness for a particular purpose, count IV alleged strict liability, and count V alleged breach of express warranties.The plaintiff withdrew count II, and at the close of all the evidence the trial court dismissed counts III, IV, and V.Count I was submitted to the jury, and the jury returned a verdict for the defendant.

The appellate court reversed, with one judge dissenting.The majority held that the trial court erred in refusing to give instruction No. 14 and in dismissing court III.(16 Ill.App.3d 638, 306 N.E.2d 337.)We granted leave to appeal.

On this appeal, Northern argues that the trial court properly refused instruction No. 14 and properly dismissed count III.By way of cross-appeal Pioneer argues that the trial court improperly refused instruction No. 15 and erred when it restricted the redirect examination of one of Pioneer's witnesses.

Pioneer owns and operates a hybrid seed corn processing plant located north of Princeton, Illinois.At this plant, three buildings are used for drying corn.The building which burned contained eight drying bins; each bin was connected to a portable gas-operated dryer.With one exception, each dryer was in turn connected to a gas standpipe by a 10-foot rubber hose.The dryer where the explosion occurred was connected to the standpipe by a 6-foot hose and a 10-foot hose which had been coupled together.

In 1966, Northern purchased the Princeton Gas Company, which had previously serviced the area.In the summer of 1966, John O'Reilly, a marketing engineer for Northern, visited Pioneer's plant in order to acquaint himself with Pioneer's equipment and to determine Pioneer's probable gas needs.He examined the name plates on Pioneer's equipment, including the dryers, in order to make a general judgment as to the amount of gas the equipment would require.He testified that the name plates on the dryers indicated that they were capable of withstanding 250 pounds of pressure on a continuous working basis.O'Reilly recommended that Pioneer be supplied with gas at a pressure of 45 pounds per square inch because information supplied by the manufacturer of the burners which were used in the dryers indicated that the equipment would require approximately 45 pounds of inlet pressure.On September 19, 1966, Northern and Pioneer entered into a contract which provided that Northern would supply gas at a pressure of 'approximately 45 p.s.i.'

Gas flowed from Northern's pipeline into a meter house which was owned by Northern but located on Pioneer's property.If the pressure in Northern's pipeline was greater than 45 p.s.i., regulators in the meter house reduced the pressure to 45 p.s.i.The gas then flowed from the meter house into Pioneer's underground pipes and eventually to the standpipes and the hoses connected to the dryers.

In the fall of 1967, Pioneer complained to Northern that it was not receiving enough pressure to operate its dryers at the temperatures needed to dry the corn.John O'Reilly and Richard Bergeson, Northern's operating supervisor in charge of the pressure department, went to Pioneer's plant and discovered that there was only 25 to 30 pounds of pressure at the meter house.This happened because the gas main that serviced Pioneer was so regulated that the maximum pressure could not exceed 75 p.s.i.; as the outside temperature got colder, more gas was used by customers who were upstream from Pioneer, which decreased the pressure at Pioneer's property.

After O'Reilly and Bergeson determined that the pressure was substantially below 45 p.s.i., they met with Fred Gross, a production superintendent for Pioneer.They told Gross that the only way they could increase the pressure was to bypass the regulators in the meter house.This would immediately increase the gas pressure by five or six pounds, but without the regulators, the pressure of the gas in Pioneer's system would increase as the pressure of the gas in Northern's pipeline increased.Gross testified that he indicated to O'Reilly and Bergeson that the plant manager, Melvin Kensinger, would have to make the decision to bypass.

O'Reilly, Bergeson and Gross examined some of Pioneer's dryers before they talked to Kensinger.O'Reilly testified that they examined one or two of the portable dryers and that they examined the dryers to determine if this type of equipment could withstand a pressure 'higher than normal metering pressure.'Bergeson testified that they examined one or two hoses on the portable dryers.Gross's account of the examination was that O'Reilly and Bergeson walked around the building while the dryers were in operation.

O'Reilly and Bergeson then told Kensinger that the only way they could increase the pressure was to bypass the regulators.They also told him that if they did so and gas usage by other customers decreased, then the pressure would increase up to a maximum of 75 pounds.Kensinger testified that he asked if any of his equipment would be damaged by increased pressure and was told that the only possible damage would be to the gas pressure gauges on the dryers, which had been designed to record a maximum of 60 pounds.O'Reilly testified:

'We told the customer if he agreed his equipment could stand a pressure higher than 45 pounds which could occur during periods of law flow, we could bypass our regulators * * *.'

Bergeson testified that he asked Gross if the equipment could handle 75 pounds, but he did not believe that he received an answer.Kensinger decided that the regulators should be bypassed.

Northern employees bypassed the regulators on September 27, 1967.The weather became warmer, the gas pressure increased, reaching a maximum of 74 1/4 p.s.i., and, at the request of Pioneer, the bypass was removed on October 2.On October 12, Pioneer again complained about low pressure and at 3 p.m. on that date the regulators were again bypassed.

When Louis Bartman, Pioneer's employee in charge of operating the dryers on the night shift, arrived at work at 6 p.m. on October 12, he noticed that each of the dryers was running at too high a temperature and that the two hose lengths on the dryer which was eventually involved in the explosion were vibrating and jumping about 1/2 inch off the ground.To reduce the heat he adjusted the temperature control valve on each dryer on his first trip, 'and I was thinking of calling Fred Gross.It seemed the second time I was coming around it wasn't doing any good so I speeded up and come around to see if they were all as high because I was going to call Fred because it didn't look good to me.'At about 7:20 p.m., he heard the hose blow.He immediately ran to the standpipe and attempted to shut off the gas, but before he was able to do so an explosion occurred and the fire resulted.

The gas pressure in the hoses in the three hours preceding the explosion varied between 53 and 63 p.s.i.There was testimony that additional pressure had built up in the hose because control valves in the dryers kept clicking shut when the dryers reached a certain temperature.It was stipulated by the parties that the damages resulting from the fire amount to $211,712.

The first issue raised is whether the appellate court erred when it held that the trial court erred in refusing to give instruction No. 14, which stated:

'Plaintiff claims that it sustained damage while exercising ordinary care, and that the defendant was negligent in one or more of the following respects:

A.Installed bypass around a pressure regulating device permitting the gas pressure to fluctuate above 45 pounds per square inch.

B.Failed to maintain a reasonably constant pressure on the gas line serving the plaintiff.

C.Failed to exercise ordinary care and caution in the distribution of gas commensurate with the requirements of the plaintiff.

D.Improperly inspected the dryers, hoses and hose clamps of the plaintiff.

E.Failed to warn the plaintiff that its dryers, hoses and hose clamps would be subjected to pulsating and erratic pressure by reason of the bypass around the service regulators.

The defendant denies that it was negligent in doing any of the things claimed by the plaintiff; denies that any claimed act or omission on the part of the defendant was a proximate cause of the claimed damage and denies that the plaintiff was in the exercise of ordinary care.'

The trial court did give plaintiff's instruction No. 16, which was very similar to instruction, No. 14, but did not refer to improper inspection.

In the trial court Northern had objected to subparagraph (D) of instruction No. 14 on the ground that the law imposes no duty on a gas company to inspect and maintain a customer's equipment.The appellate court held that, in determining the correctness of the trial court's refusal of instruction No. 14, it would consider only the objection which had been advanced by the...