La Salle Nat. Bank v. Wieboldt Stores, Inc.

• Decision Date: 04 June 1965
• Docket Number: Gen. No. 49103
• Citation: 60 Ill.App.2d 188,208 N.E.2d 845
• Parties: LA SALLE NATIONAL BANK, a National Banking Corporation, Administrator of the Estate of Henry C. Lavery, Jr., Deceased, et al., Plaintiffs-Appellees, v. WIEBOLDT STORES, INC., a Corporation, et al., Defendant-Appellant, Ada M. Zielke, Administratrix, etc., et al., Plaintiff-Appellant.
• Court: United States Appellate Court of Illinois

Page 845

208 N.E.2d 845

60 Ill.App.2d 188

LA SALLE NATIONAL BANK, a National Banking Corporation, Administrator of the Estate of Henry C. Lavery, Jr., Deceased, et al., Plaintiffs-Appellees, v. WIEBOLDT STORES, INC., a Corporation, et al., Defendant-Appellant, Ada M. Zielke, Administratrix, etc., et al., Plaintiff-Appellant.

Gen. No. 49103.

Appellate Court of Illinois, First District, First Division.

June 4, 1965.

Rehearing Denied July 1, 1965.

Peterson, Lowry, Rall, Barber & Ross, Chicago, A. R. Peterson, Harold W. Huff, Thomas K. Peterson, Chicago, of counsel, for appellants.

Clausen, Hirsh, Miller & Gorman, Gardner, Carton, Douglas & Chilgren, Rosenbaum & Rosenbaum; Lester E. Williams, Angelo D. Mistretta; Lester E. Williams, Francis J. Cuneo, Paul M. Wade, Harry A. Quinn; Lester W. Williams, Chicago, Sidney Z. Karasik, Jacob T. Pincus, Joseph P. Carr, Joe A. Sutherland, Chicago, of counsel, for appellees.

KLUCZYNSKI, Justice.

The injuries and damages which form the basis of the six consolidated suits herein were the result of an explosion which occurred in the Wieboldt Department Store at Harlem Avenue and Lake Street in River Forest, Illinois, on March 6, 1955. In the explosion Henry C. Lavery, William F. Beckmeyer, Fred Watschke, and John Kalas, ^* employees of Faulds Oven & Equipment Co., were killed. Carl I. Carlson, another Faulds employee who suffered various injuries, was the sole survivor. An oven in the process of being installed in the Wieboldt bakery by the Faulds crew was destroyed. William Zielke, regularly employed by Wieboldt as an assistant stationary engineer was also killed, and extensive damage was done to Wieboldt property.

Suits for wrongful death were filed by the representatives of the estates of Beckmeyer, Lavery and Watschke, alleging negligence on the part of Wieboldt. These actions were submitted to the jury, which rendered verdicts in favor of each in the amount of $20,000. Judgment was entered on these verdicts.

The administratrix for the estate of William Zielke brought suit against Faulds for wrongful death, predicating such action on the negligence of Faulds. The trial court, at the close of all the evidence, directed a verdict for Faulds and against Zielke's administratrix.

Faulds brought suit against Wieboldt for the recovery of the balance due it on a contract for the furnishing and installation of the new oven in the Wieboldt sotre. Faulds claimed that its performance of the contract was prevented by the explosion caused solely through the negligent conduct of Wieboldt. Wieboldt defended on the ground that prevention of performance was the result of Faulds' negligence, and counterclaimed against Faulds for damage to its property. The trial court terminated these actions at the close of all the evidence by directing a verdict for Faulds, entering judgment against Wieboldt and in favor of Faulds for $2,936.58, and by directing a verdict against Wieboldt on its counterclaim.

It is conceded by the parties that the explosion involved in the instant case was caused by the ignition of gas which had accumulated in a crawl space beneath the floor of the bake shop in the Wieboldt Store. The bake shop was located on the first floor. The room was rather large and contained several pieces of equipment used in the preparation of the bakery goods. A gas-fired oven was located in the southeast corner of the room, and a fryer and candy stove, also operated by gas was located in the northeast corner. The crawl space was located between the basement and first floor. It was 42 inches deep, 47 feet long and 24 feet wide. Access to it was by means of a small 30"' by 42"' door, usually kept closed. The crawl space was divided into sections, the one under the bakery being 9 1/2 by 15 feet.

A network of gas lines supplying the equipment in the bakery, including the old oven, ran through the crawl space. A main shutoff valve was located in the basement at the gas mater, which was directly west of the crawl space. A pipe line extended east from the shutoff valve into the crawl space. At a point near the northwest corner of the crawl space the main fuel line branched into two lines. One ran east and served the fryer and candy stove. The other extended south across the crawl space to the south wall where it turned east and ran parallel to the south wall to a point just west of the oven. The line, after passing through a masonry partition which did not extend above the floor into the bakery, turned back to the north about a foot and then, by means of a 90 degree elbow, turned upward passing through a hole in the bakery floor. The protruding pipe was located about a foot from each wall in the southeast corner of the bakery. floor and crossed over 10 inches to a valve floor and extended about a foot above the which made connection with the oven.

The principal controversy centers around the responsibility for the release of gas into the crawl space. The evidence indicates that in the summer of 1954 Wieboldt desired to replace the oven used by it for the baking of bread and rolls. Conversations took place with representatives of Faulds, and a written proposal was submitted by them, but no action was taken by Wieboldt until early the following year. The Faulds' proposal, dated June 24, 1954, reads in part: 'We are pleased to submit the following proposal: (1) New style No. 424 Model X * * * set up in your bake shop at Harlem and Lake Store * * * complete except for final gas, electric and smoke connections'.

In January, Faulds was notified that Wieboldt was prepared to consider installation of the new oven. On January 25, 1955 a meeting took place between Merrick and Olsen, superintendent and sales engineer for Faulds, respectively, and Skanderup and Campa, bakery buyer and property manager for Wieboldt, respectively. It was agreed that installation would take place over a week end, so that there would be no interference with the normal business operations of the store. It was also agreed that Faulds would install the oven 'complete except for final gas, electric connections' as per the proposal of June 24, 1954. Olsen stated that a shop order directing the production of the oven could not be issued by him until he was supplied with a purchase order number from Wieboldt. This was furnished by Skanderup during the meeting. As part of the agreement Faulds accepted the old oven in trade, credit being given toward the purchase price, leaving a balance due Faulds on the new oven.

On Saturday March 5, 1955 the new oven was ready for delivery. Pursuant to its agreement Faulds engaged John Carle, doing business under the name of 'Complete Oven Repair' to remove the old oven. A letter of entry was furnished Carle by Wieboldt, and he, his partner, and a helper arrived at the store at 8:00 a. m. and began to dismantle the old oven. The operation took about 8 hours and removal of the old oven was completed by 5:00 p. m.

On the trial Carle testified that there was a gas control on the feed line to the old oven at the shutoff valve. In removing this oven he was required to make a complete break in the line at a point between the valve and oven. He testified that he performed that particular function himself, and in so doing observed that 'the gas control on the feed line to the oven, where the shutoff valve was, was closed', and that 'there was no gas leaking out of the old gas line as it was exposed, the value was shut off'.

John Faulds Jr. arrived at the bakery about one half hour before Carle and his men had left. He testified that the old gas line was sticking up through the floor after Carle had removed the oven. He remembered talking to two Wieboldt men whom he noticed were in the bakery giving directions to other men, and telling them that they would have to remove the line. 'It was told it was to be taken care of, and with that I left'. Carle, who was in the bakery at the time, corroborated Faulds' account of the conversation. Carle testified that Faulds was concerned with the pipe coming out of the floor and the Wieboldt man Faulds talked to said it would be capped or removed. Carle also stated that he had considerable experience working with gas lines, and that in order to make a line inoperative, it should be capped or plugged, and that irrespective of the method used, the process is called 'capping the gas line'.

Thomas Carlsen, a Wieboldt electrician who was at the store all day Saturday testified that he disconnected the main electrical feed line to the oven about 2:00 p. m.

The new oven arrived at the store between 5:30 and 6:00 p. m. The Faulds crew of Beckmeyer, the foreman, Carlson, Lavery, Watschke and Kalas unloaded the oven parts and began to assemble the unit about 7:00 p. m. The assembly was done a short distance from the permanent location of the oven. After some preliminary work had been completed the Faulds crew was ready to push the new oven into the southeast corner of the room as close to the walls as permissible. It was then discovered by them that the old gas line was still protruding through the floor.

At this time the only workmen in the bakery were the Faulds employees, Beckmeyer, Lavery, Watschke, Carlson and Kalas, and a Wieboldt watchman. Substantially all the events leading up to the explosion were described through the direct testimony of the only man to survive the explosion, Carl I. Carlson. He testified that he noticed the valve on the pipe stub was 'shut-off'. To facilitate the removal of the protruding gas line one of the crew asked the watchman to call a man from the Wieboldt maintenance department. In response to such call Adolph Dick, Wieboldt's chief stationary engineer, arrived at the store between 7:00 and 8:00 p. m. dressed in regular street attire.

At this point in the evidence there is a sharp and critical conflict in the testimony given by Carlson and Dick. Continuing, Carlson testified that when Dick arrived, Dick and Beckmeyer went...