Carver v. Grossman

• Decision Date: 20 November 1973
• Docket Number: 45317,Nos. 45316,s. 45316
• Citation: 55 Ill.2d 507,305 N.E.2d 161
• Parties: Robert E. CARVER, Appellant, v. Ronald F. GROSSMAN, Admr., Appellee. Appeal of Walter BISHOP, Third-Party.
• Court: Illinois Supreme Court

Page 161

305 N.E.2d 161

55 Ill.2d 507

Robert E. CARVER, Appellant, v. Ronald F. GROSSMAN, Admr., Appellee Appeal of Walter BISHOP, Third-Party.

Nos. 45316, 45317.

Supreme Court of Illinois.

Nov. 20, 1973.

John G. Phillips, Ltd., Chicago (Ellis B. Rosenzweig, Chicago, of counsel), for appellant Robert E. Carver.

Hinshaw, Culbertson, Moelmann, Hoban & Fuller and Klohr, Braun, Lynch & Smith, Chicago (John M. Moelmann, Thomas J. Weithers and D. Kendall Griffith, Chicago, of counsel), for appellant Walter Bishop.

Rolland H. Stimson, Chicago, for appellee Ronald F. Grossman.

RYAN, Justice.

The circuit court of Cook County following a bench trial entered judgment against the third-party defendant, Walter J. Bishop and in favor of the third-party plaintiff, Ronald F. Grossman, Administrator of the Estate of Broadus J. Putnam, deceased, for the amount for a consent judgment which had been entered against Grossman in favor of the original plaintiff, Robert Carver, an employee of Bishop at the time of injury. The circuit court also held that Bishop was not entitled to satisfy his lien for workmen's compensation payments that he had made to the plaintiff from this judgment. The appellate court affirmed the judgment against Bishop but modified it to provide for the payment to Bishop of his lien for workmen's compensation payments which had been made to the plaintiff Carver. (6 Ill.App.3d 265, 285 N.E.2d 468) We granted leave to appeal to Bishop from the affirmance by the appellate court of the judgment against him entered on the third-party complaint. We also granted Carver's petition for leave to appeal from that part of the order of the appellate court which allowed Bishop's lien for compensation payments to be satisfied from said judgment. The appeals have been consolidated in this court for argument and opinion.

On May 17, 1964, Carver was employed by Bishop in a gasoline service station. On that day Broadus J. Putnam took his 1951 Dodge, equipped with a manual transmission, to the service station. Bishop, the operator of the station, drove the automobile into a service bay and instructed Carver to change the oil and the oil filter. When Bishop got out of the car, he left the transmission in gear and the keys in the ignition, but the engine was turned off. He also did not place blocks in front of the wheels. While the car was being serviced, Putnam, the owner of the automobile, and Bishop, the operator of the service station, were in the general vicinity where the work was being performed. Just prior to the incident in question, Bishop and Putnam stood on the driver's side of the automobile while Carver stood in front of it. The hood was up and Carver was working under the hood. Bishop then told Putnam to check his gas. While it is not clear whether or not Putnam got into the car, the evidence indicates and the trial court found that he did turn on the ignition. The car started and lurched forward pinning Carver and causing him injuries.

A workmen's compensation award in the amount of $22,976.39 was paid to Carver by Bishop's insurance carrier. Putnam then died and Carver instituted a common-law negligence action against Grossman as administrator for Putnam's estate. Grossman subsequently filed a third-party complaint against Bishop, the employer, based on an implied indemnity theory. The third-party complaint alleged that the estate was entitled to full indemnification in the event it was held liable to the original plaintiff, claiming that Putnam was passively negligent while Bishop, the employer, was actively negligent.

Carver agreed to settle his action against Grossman and a consent judgment in the amount of $75,000 was entered against the estate. The case then proceeded to trial on the third-party complaint, following which the court found that Bishop was actively negligent and Putnam was passively negligent and entered judgment on the third-party complaint in favor of Grossman and against the third-party defendant, Bishop, in the amount of $75,000. The court also denied Bishop's claim to be reimbursed for the workmen's compensation payments on the ground that section 5(b) of the Workmen's Compensation Act (Ill.Rev.Stat.1963, ch. 48, par. 138.5(b)) does not authorize reimbursement to an employer whose negligence proximately caused the injury to the employee.

Illinois has long adhered to the rule that there can be no contribution among joint tortfeasors. (See Nelson v. Cook (1856), 17 Ill. 443; Johnson v. Chicago and Pacific Elevator Co. (1882), 105 Ill. 462; Skala v. Lehon (1931), 343 Ill. 602, 175 N.E. 832; Miller v. DeWitt (1967), 37 Ill.2d 273, 226 N.E.2d 630.) The wisdom of the rule and the reason for its continuance have been severely questioned. (See Sargent v. Interstate Bakeries, Inc., 86 Ill.App.2d 187, 229 N.E.2d 769; Moroni v. Intrusion-Prepakt, Inc., 24 Ill.App.2d 534, 165 N.E.2d 346; Prosser, Handbook of the Law of Torts (4th ed. 1971), sec. 50.) Whether the time has arrived or conditions are ripe for a modification of this rule through judicial decision or legislative enactment is a question not relevant to a decision in this case. (For a discussion of legislative changes in the rule in other jurisdictions, see Prosser, Handbook of the Law of Torts (4th ed. 1971), sec. 50; see also, Uniform Contribution Among Tortfeasors Act (1955), 9 U.L.A. 1967 Pocket Part 127.) The theory of implied indemnity has been applied judicially to mitigate the harsh effect that could result from an inflexible application of the rule which prohibits contributions. (Muhlbauer v. Kruzel, 39 Ill.2d 226, 230, 234 N.E.2d 790; see also Gertz v. Campbell, 55 Ill.2d 84, 302 N.E.2d 40.) We are called upon by the third-party complaint in this case to again apply the theory of implied indemnity.

This theory has been used to cover a variety of situations (see Feirich, Third-Party Practice, 1967 U.Ill.L.F. 236, 242). Where indemnity has been allowed the conduct of the indemnitor has usually been characterized as the primary cause or active negligence while that of the indemnitee has been characterized as the secondary cause or passive negligence. (Chicago and Illinois Midland Ry. Co. v. Evans Construction Co., 32 Ill.2d 600, 208 N.E.2d 573.) In this case the third-party plaintiff, Grossman, has chosen to characterize the conduct of the third-party defendant, Bishop, as active negligence and that of the decedent, Putnam, whose estate he is administering, as passive negligence. Although these terms have not obtained precise judicial definition, previous decisions fairly well delineate the areas wherein conduct may be termed active or passive negligence.

Consideration must also be given to section 25(2) of the Civil Practice Act concerning third-party proceedings which states: 'Nothing herein * * * creates any substantive right to contribution among tortfeasors * * * which has not heretofore existed.' (Ill.Rev.Stat.1969, ch. 110, par. 25(2).) In light of this statutory language and the general rule against contribution the facts of the case must clearly justify indemnification. If they do not, the net effect of the application of the implied indemnity theory will be not only to allow contribution but to permit the total shifting of responsibility to one negligent party while permitting the other to totally escape the responsibility for his negligent conduct.

We feel that the evidence in this case fails to establish Grossman's right to indemnity from Bishop, the owner of the service station, because the evidence clearly establishes that his decedent, Putnam, was himself guilty of active negligence. Grossman has oversimplified the facts in asserting that Bishop created the hazardous condition and Putnam merely failed to discover the condition in which Bishop had left the car. He further contends that Putnam performed 'the usually harmless act of turning an ignition key,' which under the circumstances of this case proved not to be 'the usually harmless act.'

Assuming the correctness of the court's finding that Bishop breached his duties to the plaintiff by leaving the car in gear and by failing to block the motor vehicle so that it could not move forward, it cannot be said that Putnam's breach of his duty to the plaintiff was so minor or insignificant as to permit a total shifting of the responsibility for Carver's injury from him to Bishop. It is not clear from the evidence whether Putnam got into the automobile before he turned on the ignition or whether he did so by reaching through the left window. The plaintiff, Carver, insists Putnam did not get into the car. In either case, the fact remains that it was his automobile and he knew or should have known that the engine could be started by turning the ignition key. He also knew or should have known that when an automobile with a manual transmission is in gear and the engine starts without having the clutch depressed, the automobile will move. The mere fact that he was responding to a suggestion by Bishop to check his gas did not absolve him of the responsibility to use reasonable care for the safety of Carver whom he knew was in front of the vehicle and working under the hood. There is no evidence that Bishop told Putnam to start the car. He only told him to 'check the gas.' It was the negligent act of Putnam in starting the engine while the car was in gear without depressing the clutch or applying the brake that caused the car to move forward and strike Carver. We cannot characterize...