dissenting:
Plaintiffs contentions have resulted in an unwarranted application of the products liability doctrine which is a clear departure from anything envisioned by the Illinois Supreme Court. An examination of the record clearly establishes that such position is unsound and that the judgment of the Circuit Comt of Bureau County should be affirmed.
. From an examination of the record it is apparent that the trial comt went as far as the comt could properly go in permitting the case to go to the jury on the theory of negligence on part of defendant, and it is clear that no error which would justify a reversal occurred during the trial of the case. The complaint of plaintiff charged that defendant, a distributor of natural gas, by-passed its regulator and thus injected “uncontrolled gas”, of a fluctuating and excessive pressure, into plaintiff’s appliances, as a consequence of which a gas connection was broken, gas escaped, and an explosion and fire ensued. The record showed that at all times, a regulator controlled the pressure of gas to the 45 lb. pressure or, with the by-pass arrangement agreed to by the parties, at a 75 lb. limit. Nothing in the record tended to establish that “uncontrolled gas” was distributed to plaintiff. In Count I, plaintiff charged defendant with several negligent acts or omissions. Count III, which we will discuss later, charged defendant with breach of its implied warranties of merchantability and fitness for a particular purpose. It charged that defendant warranted to plaintiff that defendant’s equipment would be fit for the purpose for which the equipment was utilized and that as a result of the breach of defendant’s warranty, “unregulated gas” was permitted to enter plaintiff’s premises. The cause was submitted to the jury on the negligence issue and all of the evidence which would relate to the 45 lb. pressure regulator, the by-pass with the 75 lb. pressure regulator, and variations and changes in the supply of gas, and charges of negligence on part of defendant including the pulsation, vibration and variation in gas pressure. All were considered by the jury in determining whether there was any basis for a finding that defendant was negligent so as to authorize a recovery.
It is clear that the gas which was supplied was not shown to be defective in any manner and that a fluctuation in the supply of gas to Pioneer as an industrial customer was a normal procedure and depended on the amount of customer usage of gas on the supply fine. This was known to plaintiff. Only maximum pressure is controlled by regulators, and the regulator which had been in use covered a 45 lb. pressure as a maximum. Pioneer Hi-Bred representatives were advised that if a bypass of the 45 lb. regulator was installed so as to eliminate the limitations of the 45 lb. regulator, the pressure which would go into the plaintiffs facilities might go as high as 75 p.s.i. There was nothing which defendant did other than to supply gas in the ordinary fashion on the basis of the pressure which was known, communicated to, and agreed to by plaintiff. Plaintiff was clearly aware of the increase in pressure resulting from the by-pass of the 45 lb. regulator. The by-pass was installed as a result of plaintiff’s request for additional gas, even at higher pressure, to conduct its corn-drying operations during high use periods. Plaintiff continued to operate its equipment knowing that the pressure would be variable, depending upon usage, and could rise as high as 75 p.s.i. When the by-pass had been removed on October 2, 1967, and the 45 p.s.i. regulator then again controlled maximum pressure, plaintiff had full knowledge that the equipment of plaintiff was subjected to pulsations and vibrations and that such conditions would result if the 45 p.s.i. regulator was bypassed and the 75 p.s.i. regulator controlled maximum pressure. Nevertheless, on October 12, 1967, with full knowledge of the consequences so far as plaintiff’s equipment was concerned, plaintiff requested that the by-pass be again installed just before the breakdown of plaintiffs equipment for reasons as hereinafter stated. The pressure on the line had only reached 58 p.s.i. which was no greater than the pressure during prior usage by plaintiff. As a result of the trial, a jury found defendant not guilty on the basis of the entire record which tested the question as to whether or not defendant was negligent in any respect in supplying gas to plaintiff and in the use of the by-pass arrangement. The case was tried fairly and without reversible error and the verdict of the jury should stand.
In view of the fact that the majority opinion concludes that the trial court did not err in refusing plaintiff’s instruction No. 15,1 will not prolong this dissent by commenting at length on such instruction. In addition to the observations contained in the majority opinion as reasons for denying error in the refusal of the instruction, I believe that such instruction, given along with plaintiff’s instruction No. 8 defining ordinary care, would have constituted unnecessary repetition and could have resulted in leading the jmy to a conclusion that defendant was to be held to a standard of care higher than that required by law.
As to the issue with respect to Count III of plaintiffs complaint, I believe it is clear that the trial court acted properly in ordering its dismissal at the close of evidence. Such Count on its face seeks to establish liability as a result of defendant’s alleged breach of implied warranties of merchantability and fitness for a particular purpose. (See Ill. Rev. Stat. 1969, ch. 26, §§ 2 — 314, 2 — 315.) On this theory, in support of such contention, plaintiff was required to plead and prove that it had given notice to defendant of the alleged breach of warranties (Ill. Rev. Stat. 1969, ch: 26, § 2 — 607(3) (a)). Further, concerning the warranty of fitness for a particular purpose, plaintiff was required to allege and prove that it had relied upon the skill and judgment of defendant in connection with such warranty. (Van Winkle v. Firestone Tire & Rubber Co., 117 Ill. App.2d 324, 253 N.E.2d 588, 589 (1969); Kirk v. Stineway Drugs Store Co., 38 Ill.App.2d 415, 187 N.E.2d 307 (1963).) Notwithstanding these prerequisites to recovery. Count III of the complaint fails even, as a basic matter, to allege plaintiff’s notice of breach to defendant, and on the basis, of the record plaintiff failed to establish, even prima facie, that plaintiff relied upon the skill and judgment of defendant in determining whether plaintiff’s facilities could withstand the increased pressures caused by the regulator by-pass.
From the record it is apparent that the evidence establishes, that, after defendant’s representatives advised plaintiff of the nature and mechanics of the contemplated by-pass, it was plaintiff’s decision to employ such method in achieving the required increased pressure. The assertion in the majority opinion that defendant’s representatives concluded that plaintiff’s equipment could withstand the higher pressure and advised plaintiff that such was the case, is simply not supported by the record, as shown by the testimony by witness O’Reilly that plaintiff was specifically asked if its equipment could withstand such pressure as it was in á better position to answer that question, which stands uncontradicted and unrefuted. The most that could be said as to defendant’s determination that plaintiff”s facilities could withstand the contemplated maximum pressure is that it “appeared” to Richard Bergeson that such was the case. The evidence that plaintiff asked defendant if damage could result from such pressure, and that defendant indicated damage could result only to the gas pressure gauges on the dryers, must be read in light of the fact that plaintiff had. already determined that its facilities in general could withstand the highest pressure (75 p.s.i.) the system could possibly reach. The gauges, however, would register pressures only up to 60 p.s.i., and thus defendant advised plaintiff that there could be some damage to the gauges if the pressure at times should reach more than that figure.
Plaintiff apparently realizes its problems of proof as to the breach of warranties theory, for in this court it seeks to support Count III of the complaint by employing strict tort or product liability considerations, under which doctrine the elements of notice of breach and reliance need not be pleaded and proven by plaintiff. (Suvada v. White Motor Co. (1965), 32 Ill.2d 612, 210 N.E.2d 182; Cunningham v. McNeal Memorial Hospital (1970), 47 Ill.2d 443, 266 N.E.2d 897.) Simply as a suggestion, and not indispensable to determination of this cause, it is believed that, even though the record would not support a recovery on the strict tort or product liability consideration, if plaintiff had wanted to proceed under any such theory, it should have drawn Count III of its complaint in accordance therewith. The strict tort or products liability doctrine was announced as the law of Illinois in 1965 by the Illinois Supreme Court’s decision in Suvada. The instant complaint was not filed until 1970, some five years later. I do not believe it would be unduly burdensome upon a party for the courts to require that, in order for such party to recover damages under a particular doctrine in existence five years prior to the filing of a complaint, that party must properly frame its complaint under that theory. In making this observation, I am mindful that the complaint in Suvada was couched in terms of implied warranty as is also true in the cases of Haley v. Merit Chevrolet, Inc. (1966), 67 Ill.App.2d 19, 214 N.E.2d 347 and Sweeney v. Matthews (1968), 94 Ill.App.2d 6, 236 N.E. 2d 439, affd 46 Ill.2d 64, 264 N.E.2d 170 (1970), in which cases recovery (or, in Haley, the possibility thereof) was nonetheless ultimately premises upon strict tort liability. It must, however, be remembered that the Suvada case announced the existence of the strict liability doctrine for the first time in Illinois, and in both Sweeney and Haley the complaints had been filed in the trial courts before the Supreme Court’s rendition of its Suvada opinion. Moreover, in Sweeney, the jury was duly instructed on strict tort liability and, most notably, on motion of plaintiff the complaint was ultimately supplemented in the trial court so as to specifically plead that theory. In Haley, no trial had yet occurred, the case was before the appellate court on appeal from the circuit court’s dismissal of plaintiff’s complaint. Under such circumstances, among others, those courts felt that plaintifFs failure to plead a theory not known to be in existence in Illinois at the time of the filing of their complaints should not, of itself, defeat their causes.
In the instant case, however, plaintiff is complaining about the trial court’s dismissal of an improperly drawn complaint as to which insufficient evidence under the theory alleged thereby was produced in the trial court, and further, it is seeking to overturn the trial court’s dismissal of that complaint on a theory never pleaded by plaintiff in the court, and which theory was clearly in existence in this State more than five years prior to the filing of the complaint in question. Under such circumstances, it appears that plaintiff’s contentions as to the dismissal of Count III of its complaint are wholly without merit. Also, in view of the foregoing (even though the evidence would not support recovery on any such theory) it is believed that it should be unnecessary for this court to determine whether the strict tort or products liability doctrine is applicable here. Even if plaintiff is not required to plead specifically in this respect, the record clearly shows that plaintiff was not entitled to recover.
The conclusion in the majority opinion that the trial court erred in refusing plaintiffs instruction No. 14,1 believe, is not justified. In absence of its having received notice of defects, there has never been an obligation imposed on a gas supplier in Illinois to exercise reasonable care in ascertaining whether or not its customers’ facilities are fit to accept gas transmitted thereto (Clare v. Bond County Gas Co., 356 Ill. 241, 244). Plaintiff here seeks to engraft another exception upon this rule (i.e., that if a supplier voluntarily undertakes to observe part of a customer’s facilities, it is liable for damage proximately caused by a negligent failure of inspection of all of such facilities). Its instruction No. 14 is improper even if that were the law in this State. Plaintiff’s instruction No. 14 assumes that defendant purported to inspect plaintiffs facilities, and the record in this case establishes that at the very most there existed a question of fact as to whether that was true. A proper instruction in this matter, if indeed a proper one could be framed in accordance with Illinois law, would necessarily require the jury to determine whether defendant had voluntarily undertaken an inspection of plaintiffs facilities, and only if that question is resolved in the affirmative could the jury be asked to determine whether defendant was negligent in making its inspection, and, necessarily, whether such negligence was the proximate cause of plaintiff’s damage and loss. Plaintiff’s instruction No. 14 is thus at best incomplete, assuming as it does a duty of defendant not established in the record as a matter of law. The trial court properly refused to give it to the jury.
On the issue as to what in fact caused the fire and resultant loss, it is obvious that it was not the gas pressure alone. As a matter of fact, it appears from the testimony of plaintiffs own expert that the damage resulted from rapid opening and closing of the shut-off valves in plaintiffs dryer, resulting in the vibration and flexion of a gas hose thereto which hose then burst near a coupling between the two extensions of hose held together by an automobile hose clamp connection. Under those circumstances, it was clearly incumbent upon plaintiff to show, as a condition precedent to recovery on the questions of negligence and proximate cause (which latter element of proof is a prerequisite to recovery under any of the theories attempted to be used by plaintiff), that plaintiff’s own hoses and connections were in proper repair and order. (Feder v. Ill. Power Co., 3 Ill.App.2d 319, 122 N.E.2d 53 (1954).) Nevertheless, careful reading of the record discloses little, if any, evidence tending to show that plaintiff’s equipment was in a good state of repair. Thus, there was no evidence that the hoses and connections were in good repair, and indeed the testimony that the hose in question was 5 or 6 years old, that the dryers were 30-35 years old, and that the system was operating on a 24-hour basis might conceivably allow an inference that plaintiff’s equipment was not in good repair.
Plaintiff apparently argues, in this connection, that since testimony of its expert establishes that the use of the automobile hose clamp by plaintiff to connect the two extensions of hose was bad practice, such use constituted a “defect” in plaintiff’s system, vaguely contended by plaintiff to be known to defendant, and thus defendant could be held liable for this loss under the recognized “notice of defect” exception to the rule stated in Clare v. Bond County Gas Co., that suppliers are not ordinarily responsible for the fitness of their customer’s facilities. This argument is unavailing, however, in that, again, there is no adequate showing in the record that plaintiff’s hoses and the clamp connecting the same were structurally or materially in proper repair, and that, nonetheless, the hose burst near the clamp due to the inherent weakness of the configuration itself. Accordingly, it may well be that the trial court allowed plaintiff more than it was entitled to by giving the case to the jury, even on the negligence count. In any event, however, it is very clear that the trial court did not commit error in refusing to direct a verdict for plaintiff or to award it a new trial.
Another contention of error raised by plaintiff is not reached by the majority opinion on the premise that it is not likely to recur during a new trial. Since I believe that no new trial is warranted, however, it is necessary to comment on the matter, which relates to the redirect examination of plaintiff’s expert witness, one Edward McLean. On direct examination, Mr. McLean testified that various standards relating to pressure piping promulgated by the American Association of Mechanical Engineers were applicable to the situation at Pioneer. On cross-examination, however, he stated that these standards applied to defendant’s facilities but, with one exception, not to plaintiff’s facilities, line, and equipment, and that the standards did not purport to require defendant to inspect plaintiff’s facilities. On redirect examination, plaintiff apparently sought to elicit testimony from Mr. McLean that although the standards were not directly applicable to plaintiff’s facilities, they nonetheless imposed "certain duties” on defendant in connection with the operation of its facilities. The court sustained defendant’s objection to this line of redirect examination, which, we are now told, would have put to rest the apparent conflict between McLean’s direct testimony and that on cross-examination relating to the application of the standards. While on this record I believe this “conflict” is more apparent than real, I note that plaintiff made no definitive offer of proof concerning the testimony sought to be adduced on redirect. Such being the case, this court is unable to adequately assess plaintiffs assertion of error, and plaintiffs point is thus not properly preserved for review. McMahon v. Coronet Insurance Co. (1972), 6 Ill. App.3d 704, 286 N.E.2d 631.
The record shows that plaintiff was on the same gas supply line as was another large industrial gas user and knew that the pressure would necessarily increase in its line during periods of lower usage by the other commercial customer and fluctuate depending on usage. The 45 p.s.i. regulator was designed to hold down the maximum to that particular amount. When plaintiff first agreed to have the by-pass of the 45 p.s.i. regulator and the installation of a 75 p.s.i. regulator, it had such installation in operation from September 27, 1967 to October 2, 1967. During this period of time, it was noted that there were necessarily fluctuations in the gas pressure and pulsation and vibration of plaintiff’s equipment and conditions of the type noted immediately prior to the fire which is the basis of the claim as against defendant. Plaintiff then had the by-pass removed by defendant on October 2, 1967. Thereafter, plaintiff requested, on October 12, 1967 (the day of the fire), that the by-pass be installed again, with full knowledge that the pressure would fluctuate and might rise as high as 75 p.s.i. and that the same conditions as to vibration of plaintiffs equipment would result. Additionally, on the date of the fire, a responsible representative of plaintiff was aware of the conditions and the' fact that plaintiffs supply hose was vibrating for at least an hour before the fire, but the gas usage was not turned off by plaintiff’s agent.
We thus have a case where nothing was shown to be wrong with the gas and where a jury, after a full-dress trial, determined that defendant was- not negligent in supplying gas to plaintiff and in installing the bypass and regulators in this case. Plaintiff now asks that we not only reject the determination of the jury and the trial court but that we create an extension or expansion of the products liability doctrine to make the gas supplier an insurer of defects or deficiencies in plaintiffs own distribution system, and even ignore the normal products liability requirement of proximate causation. Such conclusion would establish a precedent not sanctioned or justified by the decisions of the Supreme Court of this State or by any sound interpretation of precedents.
It is clear from an analysis of the record that plaintiff has had its day in court as a result of a trial free from reversible error. The trial court ruled correctly, or at least did not err in favor of defendant, on matters now properly presented for review, and its judgment based on the jury verdict should accordingly be affirmed by this court.