Sargent v. Interstate Bakeries, Inc.

• Decision Date: 11 August 1967
• Docket Number: Gen. No. 51111
• Citation: 229 N.E.2d 769,86 Ill.App.2d 187
• Parties: Linda SARGENT, a minor, by her mother and next friend, Charlie Belle Sargent, Plaintiff, v. INTERSTATE BAKERIES, INC., a corporation and Steve Diklich, Defendants-Counter-Plaintiffs-Appellants, v. David HERSKOVITZ, Defendant-Counter-Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 769

229 N.E.2d 769

86 Ill.App.2d 187

Linda SARGENT, a minor, by her mother and next friend, Charlie Belle Sargent, Plaintiff, v. INTERSTATE BAKERIES, INC., a corporation and Steve Diklich, Defendants-Counter-Plaintiffs-Appellants, v. David HERSKOVITZ, Defendant-Counter-Defendant-Appellee.

Gen. No. 51111.

Appellate Court of Illinois, First District, Third Division.

Aug. 11, 1967.

B. F. Martin, Chicago, F. W. Gulbranson, Chicago, of counsel, for Interstate Bakeries, Inc., and Steve Diklich, defendants-counter-plaintiffs-appellants.

Howard, French & Healy, Chicago, Russell V. Guilford, Chicago, of counsel, for David Herskovitz.

DEMPSEY, Justice.

This is an appeal from an order dismissing a counterclaim (a third-party complaint).

Linda Sargent, a minor, was injured by a motor vehicle while she was crossing a street at an intersection. The vehicle was owned by the defendant Sun Ray Fluorescent Company and was driven by its employee, the defendant David Herskovitz. In count I of a two-count complaint she charged these defendants with seven acts of negligence in the operation of their vehicle.

Count II of the complaint was against the owner and driver of another vehicle: Interstate Bakeries, Inc., and Steve Diklich. She charged these defendants with negligence in parking their vehicle at the crosswalk of the intersection and alleged that this also caused her to be injured.

After the defendants had answered the complaint and denied its allegations, Interstate Bakeries and Diklich (Interstate) filed a counterclaim for indemnity against the Sun Ray Company and Herskovitz (Herskovitz), alleging that their own negligence was passive while that of Herskovitz was active and was the proximate cause of the plaintiff's injuries. Herskovitz moved to dismiss on the ground that under the plaintiff's complaint Interstate could only be guilty of active acts of negligence and that contribution between tortfeasors is not allowed in the State of Illinois. The motion was granted and Interstate appealed--the trial court having found that there was no just cause to delay appeal from its ruling.

The appellant relies upon the case of Reynolds v. Illinois Bell Telephone Co., 51 Ill.App.2d 334, 201 N.E.2d 322 (1964). Outside of some small procedural differences the Reynolds case is identical with the case at bar. A minor was injured in a crosswalk by a passing motorist. A truck owned by Illinois Bell was parked near the crosswalk. The minor sued Illinois Bell (a covenant not to sue had been entered into with the motorist) alleging that its negligence in parking caused her injuries. Illinois Bell sought indemnifying protection from the motorist. The trial court dismissed Illinois Bell's third-party complaint. The Appellate Court reversed. The court held that the complaint stated a cause of action for indemnity and that it should not have been dismissed without a trial on the merits of the question whether the motorist was the primary delinquent compared with Illinois Bell's parking violation.

The appellee, Herskovitz, attacked the Reynolds decision in the trial court and criticizes it vehemently in this court as going beyond all the recognized theories under which Illinois courts have permitted indemnification and as approving, under the guise of indemnity, contribution among Pari delicto tort-feasors.

The trial judge refused to follow Reynolds. His position was candidly expressed in a companion case wherein Reynolds was also cited: 'It is my view that the decision in Reynolds is basically wrong and contrary to our previous guideposts. * * *' The judge gave his reasons for not following Reynolds, among them being that it unnecessarily expanded, beyond any true indemnity situation, the concept of comparative negligence between defendants and constituted a long step towards involuntary contribution between joint tortfeasors.

It is argued on appeal that Reynolds is not a correct exposition of the Illinois law concerning common law indemnification; that indemnification is only allowed where one does the act which produces the injury and the other does not join in the act but is exposed to liability; that the cases cited in the Reynolds opinion fall within this principle but the factual situation in Reynolds does not. It is further argued that if Reynolds is followed a negligent defendant may be completely relieved of liability if he can find a defendant who was more negligent than himself, and that it will encourage the filing of third-party complaints in attempts to shift the entire burden from one defendant to another.

It is true that the Reynolds decision did add a further dimension to the right of one negligent tortfeasor to recover indemnity from another. Generally, recovery had theretofore been allowed only in cases where the liability of the defendant seeking indemnity was derived from the defendant from whom indemnity was sought and the defendants had some community of interest in their relationship to the plaintiff which antedated the liability-creating incident. See, Spivack v. Hara, 69 Ill.App.2d 22, 216 N.E.2d 173 (1966). Under one analysis of Illinois cases, a pretort relationship between negligent tortfeasors provides a necessary substratum for implying an agreement that the one tortfeasor would perform the duties imposed by the relationship without subjecting the other to liability. Comment: Contribution and Indemnity in Illinois Negligence Cases, 19 U.Chi.L.Rev. 388, 397 (1952). However, the right to indemnity stands upon the principle that everyone is responsible for the consequences of his own acts, Bituminous Cas. Corp. v. American Fidel. & Cas. Co., 22 Ill.App.2d 26, 159 N.E.2d 7 (1959); Prosser, Torts 15 (2d ed. 1955); Holmes, The Common Law 108--10, 144--46 (1881). Thus, the absence of a prior legal relation should not foreclose relief to a tortfeasor not in Pari delicto with his codefendant. Although the existence of such a relationship may tend to establish that the liability of the potential indemnitee is solely derivative, it does not prove that he was not an active cause of the plaintiff's injuries, e.g., Yankey v. Oscar Bohlin & Sons, Inc., 37 Ill.App.2d 457, 186 N.E.2d 57 (1962). Nor does absence of a specific relationship necessarily prove that the codefendants were in Pari delicto and thereby preclude indemnity, e.g., McDonald v. President and Trustees of Village of Lockport, 28 Ill.App. 157 (1888). Implicit in the Reynolds decision is the recognition that a joint tortfeasor might be blameless in comparison with a codefendant with whom he had no pre-tort relation and that lack of this community of interest is not of itself a bar to indemnification.

This same principle was expressed by the court in Parrish v. De Remer, 117 Colo. 256, 187 P.2d 597 (1947). In that case the defendant was a construction company engaged in building a road across a well-travelled highway. The defendant barricaded the highway at its intersection with the road and directed vehicles travelling either way on the highway to pass the barricade on an unfinished portion of the construction project. This detour was too narrow for vehicles to pass abreast but no warning to that effect was posted. The plaintiff's truck in using the detour collided with an automobile. The occupants of the automobile recovered a judgment from the plaintiff, and he sought indemnification from the defendant. The trial court's grant of summary judgment for the defendant was reversed by the Supreme Court. That court said:

'(W)hile there is a general rule which precludes one wrongdoer from recovering indemnity from another wrongdoer, there is an exception thereto which permits a party who is in fault as to the person injured but who is without fault as to the party whose actual negligence is the cause of the injury to recover indemnity.'

It should be noted that Colorado law does not permit contribution from a joint tortfeasor. Publix Cab Co. v. Fessler, 138 Colo. 547, 335 P.2d 865, 75 A.L.R.2d 979 (1959).

In addition to disregarding the lack of community of interest between the joint tortfeasors, the Reynolds decision also departed from the standards previously used to measure the disparity in degree of fault necessary to constitute a cause of action for indemnity. The alleged negligence of Illinois Bell in parking its truck furnished a condition upon which the motorist operated. The subsequent independent act of the motorist caused the plaintiff's injury. In holding that under these circumstances Illinois Bell's negligence was passive and that of the motorist active, Reynolds reached the same conclusion as did the court in Southwestern Greyhound Lines v. Crown Coach Co., 178 F.2d 628 (8th Cir. 1949). Greyhound operated a bus station and Crown Coach used the station to load and unload its passengers. A passenger of Crown Coach, after disembarking from one of its buses, fell over a piece of luggage and was injured. She sued Crown Coach and won and Crown thereupon sued Greyhound. Each bus company contended that its negligence, if any, was passive and the other's active. The court held that the negligence of both Greyhound and Crown Coach was passive; that the party guilty of active negligence was the unknown person who placed his luggage on the floor near where passengers had to alight. The court found that the companies' passive negligence furnished the occasion for the passenger's accident and stated:

'Passive negligence exists where one person negligently brings about a condition or an occasion and active negligence exists where another party negligently acts upon that condition and perpetrates a wrong.'

A similar explanation of the difference between active and passive negligence was given in King v. Timber Structures, Inc., of California, 240 Cal.App.2d 178, 49 Cal.Rptr. 414 (1966), an action for indemnity by a general contractor against a subcontractor. The court there stated:

'* * * one is passively negligent if he merely fails to...