*1 Ruebner, for Ralph of Elgin, appellant. Reinhard, Rockford,

Philip State’s W. Attorney, (James G. Jerz, counsel,) the People. Moultrie-Shelby Marler, Plaintiff-Appellant,

Delbert Farm Service al., et Defendant- Service, Farm (Moultrie-Shelby Defendants — Appellee.) 11752; (No.

Fourth April District dissenting part. CRAVEN, concurring part J., P. *2 L. Decatur, (Wayne & of Bickes

Rosenberg, Rosenberg, Johnson, Bickes, counsel,) David of Johnson, appellant. L. for Decatur, H.

Wilson, McDonald, & of Dyar, (Vernon Houchen Houchen, of counsel,) appellee. the of the court:

Mr. SMITPI delivered opinion JUSTICE at of verdicts the close The circuit of Macon directed County the favor of defendants. Defendant in the three plaintiff’s were was and Goodrich an NRG Fuels employee Corporation they in the and charged repair trial court the failure to properly inspect house lines a tank the basement propane gas from into running the gas explosion where a The does not from occurred. plaintiff appeal directed verdicts as to two these defendants. Service, FS,

The Farm Moultrie-Shelby referred hereinafter with two items of with the installa- charged negligence: (1) tion of an copper tubing running through from outside tank propane the walls the basement and with the failure to odorize the (2) propane The property owned church trustees and was rented the his plaintiff them to and wife at the time hus- explosion. The band down went into the basement in when moved they August hot water heater light and the in occurred. explosion question sustained severe burns and plaintiff injuries. permanent The church trustees had contracted in with FS 1965 to install a liquid gas system on the propane property. The installation of a consisted tank behind 500-gallon propane gas the house and a trans- line copper from the tank mitting propane low and pressure regulator then the foundation the house into basement. The founda- composed tion was brick mortar been outside had The tubing stuccoed. went apparently stucco and between bricks the mortar joint. two plaintiff testified he turned on at the tank and then all lighted four burners on their kitchen gas At time neither he nor his wife observed stove. odor of then went into the kind. He down basement and pulled switch the electric water heater. There light flash and spark, an explosion and his next recollection is in in the awakening hospital. had been question vacant since of the same year. June The preceding tenants had last from gallons of purchased FS in of May fall, the same had During had year. they preceding the other two defendants in lines of an odor because house, and testified that that odor there. continued while were There is evidence that there had been some and the sewer disturbance failure of the sewer in the house to function The trastees properly. worked on this In the problem before the spring explosion. fall, preceding defendant Goodrich inspected pro- lines nounced them He o.k. testified that he did not examine the line through the foundation because it could not seen be or reached. he did not Why detect the odor of gas at the time of the the gas inspection, why didn’t previously explode when the electric water heater was on is un- in this explained record.

Immediately following the trustees of the came explosion, church out and removed a some 4 to 6 inches tubing long which had been tubing foundation. corroded and away, leaving holes in it.

The uncontroverted is that FS from supplied some time in the preceding October and had installed the system *3 FS was never called to the lines nor is it inspect charged resi-, failure any to maintain the lines after the enters the properly gas dence. Goodrich testified that the tenants had his com- previous asked to line pany gas and its and this he had done joints, accordance with the usual practice, but had not this inspected particu- lar of the copper tubing because it was hidden by foundation. He tightened some and testified up joints that he came to the con- clusion that the gas which the tenants had smelled in the basement was sewer The tenants testified had smelled either sewer or gas gas during period, but did not know which. of the defendant NRG Fuels manager testified Corporation 12 had been in business for about and had years

that he occasion to mortar and cement and observe stated “I have copper pipe There is a up by seen some or copper customary corrosion. practi- business, is, this sort of that avoiding thing cal a way put sleeve, on a where it wrap copper goes cross-examination, he On stated “I have seen the foundation”. installations and it ran there no sleeve involved brick where or cement. where the seen installations not corroded copper I have in those it is As to whether certain kinds of cement that situations. will corrode I couldn’t answer or eat a that because I don’t up know.

207 aU or whether it kind of mortar I don’t know whether is a particular testimony sum mortar reacts the This is the total way”. same is evidence about tubing. custom in the installation of this type There of what rather than otherwise. significant says the absence it installation. no existed at the time of the evidence this custom se tubing per There is to sleeve or wrap no evidence that failure does and some caused the corrosion. The is that sometimes it times lines at it There is no to indicate whether the doesn’t. of its failure owner or to the defen point belonged to the property Can de dant. it be said that it is the of this defendant who was examine, to the livering gas household to maintain and correct aU of the inside installations v. affecting system? We think In Clare not. Co., Bond 241, 244, 278, Gas 356 County Ill. 190 stated: N.E. defects, “In the absence of notice of it is not incumbent a upon gas to exercise company reasonable care to ascertain whether or not service under the pipes control of the owner or the property consumer are fit for the furnishing gas. As a general proposition, duty can extend no further than its and person’s right, power authority out. It cannot be carry urged that seriously employees gas have the company right go upon of one of its customers for the his purpose inspecting or other fixtures pipes invitation, except upon license or per- mission of the owner.” Co., 125, Northern Illinois Gas Ill.App.2d

In Summers v. N.E.2d 881, that the instrumentality causing damage it appears property meters transmission owned and maintained pipes defective There is no such defendant in that evidence in this record. case. FS does it owned the internal transmission Nowhere appear or had control over them. system, appliances to become usage binding upon

A custom must have parties as well as uniformity universality have continued for antiquity of time that the must have contracted in re length parties sufficient Co., B. Miller Home Agency lation to v. Insurance (F. 276 Ill.App. it. should be established generally It more than one 427.) witness so as to raise that others knew it or should have known it. presumption Fabro, (Traff Ill.App. N.E.2d evidence of the 874.) *4 insufficient establish is to that it was plaintiff wholly the custom to sleeve Industries, 42, v. (Hardman Helene Curtis 48 pipe. N.E.2d Ill.App.2d 681; Products, Metals, Inc., Metal Inc. David Wilke v. Architectural 92 265, 236 N.E.2d 303.) circumstances, Under these Ill.App.2d we find it difficult to find to a any on the support duty defendant to maintain the line or evidence to estabhsh a any custom followed at the

208 of a time the installation with to or sleeving wrapping reference when it a a foundation from which would arise. goes through duty It is pure Thus court directed a speculation. correctly the trial verdict on issue of installation. ' The second is or filled tank point whether not the defendant with non-odorized or of odorized when the exercise insufficiently ordinary care the defendant or should known gas. knew have that this could not be said detected other plaintiff person upon any manager without Defendant’s gas department odorization. 1969, 110A, testified as an adverse witness under Ill. ch. par. Rev. Stat. 60, and things other as abstracted stated: we among get “When propane, in buy we it We do not It is at have odorizer added bulk. ourselves. of at the point terminal where it Our pick-up, comes from. immediate is to supplier gas. odorize the We do to supposed not test perform see that it is odorized”. None tire that of witnesses testified at time smelled the odor of While this its propane gas. negative testimony, are weight credibility v. for the determination jury. (Hulke Co., 5, 717; International 14 N.E.2d v. Mfg. McDaniels Ill.App.2d Louis, St. In 332, R Ass’n N.E.2d Ill.App. 785.) Terminal McDaniels, stated: “While may negative testimony p. weight be of as much as testimony, weight credibility not positive Mates, determination Ill. of both are for the jury. (Noonan that 103.)” We would also observe Goodrich was familiar App. gas the odor of and smelled none. plaintiff none. smelled tenants smelled some kind of didn’t previous gas know what it was. Such does on to probative have value the issue as or not the defendant in this case whether consumer with supplied this which been treated suf with malodorant properly to ficient in warn its quantity people existence. record here concerned, that as this shows so far defendant they bought already treated. delivered the supposedly sufficiently They such By action they uncategorically represented was fit and safe Hulke, In use defendant appliances. Skelly was held liable of a producer dangerous commodity theory in with an intrinsically dangerous substance herently could not Skelly escape an liability employing independent or evade contractor it. to do state, is dangerous commodity, “Gas and the corporation In which such must furnish service exercise a degree undertakes care com its which it is danger to the avoid and every mensurate must use against guarding injury reasonable precaution person or prop v. Central Illinois (Metz Co., Electric & erty other”. Gas 32 Ill.2d as a say We cannot 305.) 207 N.E.2d matter of law that the defen- *5 dant in this fulfilled or not the propane case its that whether a jury was odorized safe is a of fact for sufficiently to be question re- determination. If the did the question yet odorize the supplier mains whether people or not it was odorized to warn sufficiently ordinary of its of the circuit court is affirmed presence. Accordingly, judgment as to and the is reversed and remanded to negligent instaHation cause trial court on the issue of failure to odorize or cause to be odorized. affirmed in and remanded in reversed part; part.

Judgment TRAPP, concurs. J., and dissent- Mr. PRESIDING CRAVEN concurring part JUSTICE

ing part: The and whether question whether the defendant fulfilled its duty or not the so as be propane gas sufficiently was odorized safe was Thus, question of fact for the I jury. agree with that ma- jority that so opinion holds. record, this

Upon issue of installation of the negligent gasline also a question of fact for the and I would reverse and remand jury, upon that issue.

The complaint alleged that the defendant installed the tank and the line in 1985. The connecting connecting line was inserted and, foundation notes, the majority went tire apparently stucco and two bricks at line, the mortar distribution joint. was not a by noncorrosive thus installed protected tubing sleeve. corroded, holes leaving which the leak gas could did into the that the corrosion caused complaint alleges basement. by combination of mortar and corrosive in the elements contained cement and mortar The answer admits surrounding tubing. essentially foregoing allegations; as to the allegation reference to corrosion, cause of the admits answer but allegation “affirmatively states that the corrosion was not caused act or of this de- doing fendant”.

Thus, upon it seems pleadings, to me the majority opinion requires of admitted proof facts. The defendant in this case is charged installation, with negligent not failure merely the tank and dis- system. tribution and admissions allegations aided of the witness Richard Short were sufficient to establish instal- lation and a breach of the required duty, least such was sufficient to constitute an issue of fact for the jury.

The witness Short who been in the business of sale and installation facilities in the area propane years testified with reference to the manner of installation and the cause of corrosion. His testimony as abstracted reads:

“In the usual course our business our installs company tanks and lines and all. I have been engaged part business that concerns the installation of lines and facili- ties for approximately years. During time I have had oc- casion to observe copper pipes put through mortar and cement. With reference to what I have noticed about of these instal- lations corrosion, with regard to I have seen some up corrosion.

There customary practical way this sort of avoiding *6 thing the business. That is to sleeve, put wrap where it goes through the foundation. I have seen installations where there was no sleeve involved and ran through brick or I have seen cement. installations where the copper was not corroded in those situations. As to whether it is only certain kinds of cement that will corrode or eat aup copper I couldn’t answer that I because don’t know. I don’t know it’s a kind whether of mortar particular or whether all mortar reacts the same way.” state, notes,

In this as the majority opinion gas is a dangerous com- modity service, those who undertake to furnish whether installation of facilities or distribution must exercise a degree care com- mensurate with the This the defendant danger. did not do. Accordingly, I dissent from that opinion that affirms a majority directed verdict on installation issue.

Louis R. Plaintiff-Appellant, Bessler, Board Education of Char-

tered School District No. 150 of Peoria County, Defendant-Ap- pellee. 72-294;

(No. Third May District