Gulf, M. & O. R. Co. v. Arthur Dixon Transfer Co.

• Decision Date: 06 April 1951
• Docket Number: Gen. No. 45108
• Citation: 343 Ill.App. 148,98 N.E.2d 783
• Parties: GULF, MOBILE & OHIO R. CO. et al. v. ARTHUR DIXON TRANSFER CO.
• Court: United States Appellate Court of Illinois

Page 783

98 N.E.2d 783

343 Ill.App. 148

GULF, MOBILE & OHIO R. CO. et al. v. ARTHUR DIXON TRANSFER CO.

Gen. No. 45108.

Appellate Court of Illinois, First District, Second Division.

April 6, 1951.

Winston, Strawn, Shaw & Black, Chicago, Douglas C. Moir, Edward J. Wendrow and Neil McKay, Chicago, of counsel, for appellant.

Eckert, Peterson & Leeming, Chicago, A. R. Peterson, Harold W. Huff and Herbert C. Loth, Jr., Chicago, of counsel, for appellee.

SCHWARTZ, Presiding Justice.

This is an action in which plaintiff seeks to recover from defendant moneys paid by plaintiff's predecessors in interest (Alton Railroad Company and the Trustee thereof) in settlement of the claim of one Wehunt, a switchman. A motion to strike the second amended complaint was sustained and suit dismissed, from which order plaintiff appeals. Inasmuch as no point is made on the question of plaintiff's succession, we will in this opinion call plaintiff and its predecessors the 'railroad.'

On July 11, 1942 Wehunt was participating in the switching movement of a box car at the Harrison Street Yard of the railroad in Chicago and was standing on a ladder attached to the southeast corner of the box car as the car was moving. Defendant, a trucking contractor, had an agreement to do certain trucking for the railroad and in the performance of its duties would enter the yard and park its motor trucks for the purpose of receiving and delivering freight. At the time of the switching movement referred to, defendant had parked one of its trucks so close to the rail that Wehunt was caught between the truck trailer and the box car and was injured. He made a claim under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., for injuries received and the railroad settled with him by paying $15,000 in addition to other sums advanced. Before making settlement, the railroad gave proper notice to defendant.

Defendant's motion to strike the second amended statement of claim alleged four grounds, the first two of which amount to a general demurrer, and it is on this that defendant relies. Plaintiff filed a motion to strike defendant's motion to strike on the ground that under Section 45 motions to strike should specifically point out defects. Therefore, the only point of pleading involved is whether under the Practice Act as it now stands a motion to strike which is tantamount to a general demurrer is permissible.

Section 45 of the Civil Practice Act, Ill.Rev.Stat.1949, c. 110, § 169, specifically provides that all objections to pleadings heretofore raised by demurrer shall be raised by motion and that the motion shall point out specifically the defects complained of; that where a pleading is objected to on the ground that it is substantially insufficient in law, the motion must specify wherein such pleading is insufficient. The courts have sustained this provision of the Act and interpreted it to mean what it so clearly states. Hitchcock v. Reynolds, 278 Ill.App. 559, 562; Messick v. Mohr, 292 Ill.App. 69, 10 N.E.2d 870; S. W. Coe & Company v. Douglass, 334 Ill.App. 195, 78 N.E.2d 818; Lederer v. St. Clair Hotel, Inc., 339 Ill.App. 214, 89 N.E.2d 739; Anderson v. Olsen, 293 Ill.App. 637, 13 N.E.2d 210; Farmer v. Alton Building & Loan Association, 294 Ill.App. 206, 13 N.E.2d 652; Aaron v. Dausch, 313 Ill.App. 524, 40 N.E.2d 805; Carmack v. Great American Indemnity Co., 400 Ill. 93, 96, 78 N.E.2d 507, 1 A.L.R.2d 402; People for Use of Pope County v. Shetler, 318 Ill.App. 279, 47 N.E.2d 732. Defendant argues, however, that failure to state a cause of action sufficient in law is not susceptible of such particularity. With this we cannot agree. In its brief, defendant has set forth that the complaint shows the railroad was a volunteer; that the railroad's liability was not secondary within the meaning of the implied indemnity cases; that the railroad was guilty of active negligence; that defendant's negligence did not proximately cause the injury; that Wehunt was guilty of contributory negligence, etc. These points could all have been set forth in its motion. That is what is required by the Act. Prior to the Practice Act demurrers had come to have an odious synonymity with deliberate delay. In fact, we had a rule in our trial courts that counsel had to file an affidavit with a general or special demurrer swearing that it was not interposed for delay. That rule fell into innocuous desuetude. It was ineffective to stop demurrers filed for delay. We should not revive that time-dishonored practice. We do not mean to imply that was the case here. We hold that motions to strike which are in the nature of general demurrers are not proper. Defendant argues as against this conclusion that plaintiff's failure to make out a case under its complaint may be challenged even after judgment. Lasko v. Meier, 394 Ill. 71, 67 N.E.2d 162, 165. The court there said: 'If, with all intendments in its favor, a complaint wholly and absolutely fails to state any cause of action at all, objection can be made to it for the first time on appeal. But, on the other hand, if the complaint states a cause of action, no matter how defectively or imperfectly alleged, and the same is not challenged below, then such defectively stated cause of action is cured by verdict and cannot be questioned on appeal.' When challenged by a motion to strike, however, the rule is that the averments of the pleader are taken against him. Cases arising after verdict are not in point here.

Defendant presents a hypothetical case which illustrates how it may be difficult under circumstances to say anything more in a motion to strike than that the law does not recognize a cause of action such as that set forth. That is not the case before us. If that problem should arise we believe the talent and ingenuity which defendant's counsel has displayed in this case will serve to find a way out of such an extraordinary dilemma.

As the case must be tried on its merits, we will consider whether the second amended complaint states a case. The trial court gave no reasons for striking the complaint but undoubtedly it was on the supposition that the railroad was a tort feasor seeking contribution from another and therefore could not recover on its theory of implied indemnity. There are many exceptions to the general principle of noncontribution between the tort feasors recognized by the courts of this and other states and by the federal courts.

The exceptions to the rule are embraced in four or five general groups. One is that a city has a right of action against contractors or abutting owners for a liability which the city may have incurred to third persons for breach of its duty with respect to public ways. Gridley v. City of Bloomington, 68 Ill. 47; City of Canton v. Torrance, 151 Ill.App. 129; Fahey v. President, etc., of Town of Harvard, 62 Ill. 28; Lowell, Inhabitants of v. Boston & Lowell R. Corp., 1839, 23 Pick., Mass., 24; Washington Gas Light Co. v. District of Columbia, 1895, 161 U.S. 316, 16 S.Ct. 564, 40 L.Ed. 712. The rule has been applied in nonmunicipal cases where the negligence of an outsider was the active cause of an injury and created the liability. Snohomish County v. Great Northern Ry. Co., 9 Cir., 130 F.2d 996; Gray v. Boston Gas Light Company, 1873, 114 Mass. 149; Middlesboro Home Telephone Company v. Louisville & Nashville R. R. Company, 214 Ky. 882, 284 S.W. 104. Cases where a stranger is hurt by a subcontractor or subtenant and the contractor or owner is given a right of action against the subcontractor. Griffiths & Sons Company v. National Fireproofing Co., 310 Ill. 331, 141 N.E. 739; Pfau v. Williamson, 63 Ill. 16, 17; Chicago Railways Co. v. R. F. Conway Co., 219 Ill.App. 220; Sherman House Hotel Co. v. Butler Street Foundry & Iron Co., 168 Ill.App. 549; Oceanic Steam Navigation Company, Limited v. Compania Transatlantica Espanola, 134 N.Y. 461, 31 N.E. 987. Cases where one, supplying goods or services, by his active negligence caused the liability. Pennsylvania Co. v. Roberts & Schaefer Co., 250 Ill.App. 330; Central of Georgia Railway Co. v. Macon Railway & Light Co., 140 Ga. 309, 78 S.E. 931; Seaboard Air Line Railway Company v. American District Electric Protective Company, 106 Fla. 330, 143 So. 316; Fidelity & Casualty Company of New York v. Northwestern Telephone Exchange Company, 140 Minn. 229, 167 N.W. 800; Standard Oil Co. v. Robins Dry Dock & Repair Co., 2 Cir., 32 F.2d 182; Union Stockyards Co. of Omaha v. Chicago B. & Q. Railroad Co., 196 U.S. 217, 25 S.Ct. 226, 49 L.Ed. 453. Cases where the negligence of a third party caused a liability under the Federal Employers' Liability Act, as in the instant case, or under the Workmen's Compensation Law. United States v. Chicago R. I. & P. Railway Co., 10 Cir., 171 F.2d 377; Booth-Kelly Lumber Co. v. Southern Pacific Railroad Co., 9 Cir., 183 F.2d 902; Staples v. Central Surety & Insurance Corp., 10 Cir., 62 F.2d 650; Stinchcomb v. Dodson, 190 Oki. 643, 126 P.2d 257; Ruby Lumber Co. v. K. V. Johnson Co., 299 Ky. 811, 187 S.W.2d 449, 166 A.L.R. 1215; Foster & Glassell Co. v. Knight Bros., 152 La. 596, 93 So. 913. That all these classes of cases are related in principle and that the courts of Illinois so recognize appears clearly from the decision of the court in Griffiths & Son Co. v. National Fireproofing Co., 310 Ill. 331, 141 N.E. 739, 38 A.L.R. 559.

Two cases sustaining a right of action on implied indemnity, where liability under the Federal Employers' Liability Act was caused by the act of a third person, are Booth-Kelly Lumber Co. v. Southern Pacific Railroad Co., 9 Cir., 183 F.2d 902; and United States v. Chicago, Rock Island & Pacific R. R. Co., 10 Cir., 171 F.2d 377. The physical facts in both of those cases are almost identical with the instant case. In the Booth-Kelly case an indemnity agreement contained two provisions, one for full indemnity where the loss occurred solely by act of the defendant, and one for a...