Embree v. Gormley

• Decision Date: 01 June 1964
• Docket Number: Gen. No. 11899
• Citation: 49 Ill.App.2d 85,199 N.E.2d 250
• Parties: Mattie W. EMBREE, as Administrator of the Estate of Waite W. Embree, deceased, and Mattie W. Embree, as an individual, Appellee, v. James GORMLEY, Appellee, and DeKalb Forge Company, a corporation, Appellant. *
• Court: United States Appellate Court of Illinois

Page 250

199 N.E.2d 250

49 Ill.App.2d 85

Mattie W. EMBREE, as Administrator of the Estate of Waite W Embree, deceased, and Mattie W. Embree, as an individual, Appellee, v. James GORMLEY, Appellee and DeKalb Forge Company, a corporation, Appellant. ^*

Gen. No. 11899.

Appellate Court of Illinois, Second District.

June 1, 1964.

Lloyd J. Tyler, Jr., Aurora, John G. Boyle, DeKalb, for appellant.

Maynard & Maynard, Rockford, Peter Fitzpatrick, Chicago, Geo. Spitz, DeKalb, for appellee.

CARROLL, Justice.

Mattie W. Embree brought suit against James D. Gormley for damages resulting from the death of her husband, Waite W. Embree, alleged to have been caused by Gormley's negligence. DeKalb Forge Company was later joined as a defendant and an amended complaint charging that DeKalb Forge was negligent 'by its agent and employee, James Gormley' was filed.

DeKalb Forge thereafter filed a counterclaim against its employee, Gormley. By its counterclaim, DeKalb Forge sought to be indemnified by Gormley for any judgment which the plaintiff might obtain against it. Gormley filed a motion to dismiss the counterclaim on the ground that it stated no present cause of action, but only a possible future right of action for indemnity which is contingent upon the outcome of the then pending suit. The trial court allowed Gormley's motion and with respect thereto made the following specific findings:

'1. That the counterclaim purports to assert a cause of action for indemnity, or liability over, against the co- -defendant, James Gormley, in the event that defendant-counterclaimant, DeKalb Forge Company, is found liable in the princiapl case of Mattie W. Embree, Administrator, vs. DeKalb Forge Company and James Gormley.

'2. That said counterclaim does not state a presently existing cause of action for indemnity, but attempts to state a future cause of action which is contingent and dependent upon the happening of a future event or determination.

'3. That Section 38 of the Civil Practice Act of Illinois authorizes only counterclaims based upon presently existing rights or causes of action, and does not, by its terms or by implication, authorize a counterclaim upon a possible future or contingent claim based upon the happening of some future event or determination.

'4. That defendant, DeKalb Forge Company, counterclaims against its codefendant, James Gormley, and that the pending issue does not involve bringing in a third party, or third party practice, and that Section 25(2) of the Civil Practice Act has no application to the case at bar.

'5. That the counterclaim filed herein, being based solely upon a future or contingent liability, dependent upon the happening of a future event or determination, does not state a presently existing right or cause of action, and should be dismissed.

'6. Further, the court expressly finds that there is not just reason for delaying enforcement or appeal upon this judgment order.'

The court then ordered that the counterclaim be dismissed, and the counterplaintiff electing to stand on its counterclaim, judgment was entered against it. From such dismissal judgment, the defendant and counterplaintiff has appealed.

The sole question presented on this appeal is whether DeKalb Forge Company has a present right to maintain its counterclaim against its servant, Gormley.

It is DeKalb Forge's contention that it has a present right to counterclaim against Gormley to require him to pay any damages to it by reason of his tort; that the Civil Practice Act permits the maintaining of such a counterclaim against Gormley and that DeKalb Forge should not be compelled to institute a separate suit to have its right to indemnity determined.

The sections of the Civil Practice Act relied on by DeKalb Forge are quoted below:

'Within the time for filing his answer or thereafter by leave of court, a defendant may by third-party complaint bring in as a defendant a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him. Subsequent pleadings shall be filed as in the case of a complaint and with like designation and effect. The third-party defendant may assert any defenses which he has to the third-party complaint or which the third-party plaintiff has to the plaintiff's claim and shall have the same right to file a counterclaim or third-party complaint as any other defendant. If the plaintiff desires to assert against the third-party defendant any claim which the plaintiff might have asserted against the third-party defendant had he been joined originally as a defendant, he shall do so by an appropriate pleading. When a counterclaim is filed against a party, he may in like manner proceed against third parties. Nothing herein applies to liability insurers or creates any substantive right to contribution among tortfeasors or against any insurer or other person which has not heretofore existed.' Ill.Rev.Stat.1963, Ch. 110, Sec. 25(2).

'(1) Subject to rules, any demand by one or more defendants against one or more plaintiffs, or against one or more codefendants, whether in the nature of setoff, recoupment, cross-bill in equity, cross demand or otherwise, and whether in tort or contract, for liquidated or unliquidated damages, or for other relief, may be pleaded as a cross demand in any action, and when so pleaded shall be called a counterclaim.

'(2) The counterclaim shall be a part of the answer, and shall be designated as a counterclaim. Service of process on parties already before the court is not necessary.' Ill.Rev.Stat.1963, Sec. 38.

DeKalb Forge's first point is that a master has an action over against its servant for damages to be paid by it by reason of its servant's tort. Among cases cited in support of this point are Holcomb v. Flavin, 37 Ill.App.2d 359, 185 N.E.2d 716, and Blaszak v. Union Tank Car Co., 37 Ill.App.2d 12, 184 N.E.2d 808. As to this general proposition, there seems to be no serious dispute.

The second point argued by DeKalb Forge is that under Section 25 of the Civil Practice Act it has a present right to counterclaim against Gormley to require him to pay any damages which it may sustain by reason of his tort and that the Civil Practice Act permits the filing of such a counterclaim.

Counterdefendant Gormley's first argument in support of the trial court's order dismissing the counterclaim is that since DeKalb Forge's liability is contingent upon the outcome of the principal case, there is no presently existing cause of action in DeKalb Forge because no liability has been established against it, nor has DeKalb Forge suffered any damages. As authority for its position, Gormley quotes from sections of Illinois Law and Practice and American Jurisprudence on the subject of 'limitations', which state that a cause of action for contribution from a joint obligor accrues when a party has paid the primary obligation or more than his share of it. Gormley also cites Harris v. Buder, 326 Ill.App. 471, 62 N.E.2d 131, which deals with the accrual of the right of contribution against a co-obligor on a promissory note, in reference to the statute of limitations. Another case relied upon by Gormley is Whittemore v. Weber, 217 Ill.App. 628, which apparently is cited because of the statement of law on page 632 thereof to the effect that a surety's obligation to contribute does not arise from a judgment being entered against the party seeking contribution, but by that party's payment of an amount in excess of his proportionate share of a joint obligation. It is insisted that these authorities are controlling on the question as to when an action for indemnity or contribution arises. DeKalb Forge has cited cases involving Section 25 of the Civil Practice Act which it is contended authorize the bringing of a third party action for indemnification during the pendency of the principal suit, before any payment is made by the third party plaintiff, before any decision regarding liability is made, or before any judgment is entered against the third party plaintiff.

Holcomb v. Flavin, supra, was an action for damages for personal injuries sustained in an automobile collision. The driver of the vehicle which allegedly injured the plaintiff was named but was not sued as defendant. The defendants, who were named as the driver's employers, pursuant to Section 25 of the Civil Practice Act, filed third party complaints. On the driver's motion, the third party complaints were dismissed. The Appellate Court reversed the dismissal order and held that:

'A master, not guilty of active participation in a tort may recover against his servant the amount which the master is required to pay for damages to a third person by reason of the servant's tort (Meece v. Holland Furnace, 269 Ill.App. 164, 169; Purple Swan Safety Coach Line v. Egyptian Trans. Co., 256 Ill.App. 442, 444). * * * The acts or omissions involved in the case before us, however, refer only to acts done through the servant, or the master by and through the servant. The ground of responsibility is solely that of respondeat superior. Such being the case, it is obvious that the complainants would have a right if found responsible and required to pay, to recover against the servant. Under the third party practice this right is sanctioned without separate litigation under the terms of the statutory provisions referred to.' Id. 37 Ill.App.2d at 361, 185 N.E.2d at 718.

In Blaszak v. Union Tank Car Co., supra, the plaintiff claimed to have been injured when the lid of a tank car owned by the Union Tank Car Co. blew off. The tank car was being leased by Union to Shell Oil Company, the plaintiff's employer, and a negligence action was brought by the plaintiff against Union. Union filed a third party complaint against Shell seeking indemnity. An appeal was taken by Union from an order dismissing the third party complaint. The Appellate Court reversed and stated:

'Section 25(2) of the Civil Practice Act provides that...