Halligan v. Shulman
| Decision Date | 23 May 1961 |
| Docket Number | Gen. No. 48326 |
| Citation | 31 Ill.App.2d 168,175 N.E.2d 590 |
| Parties | Robert E. HALLIGAN, Plaintiff, v. Evelyn SHULMAN, Defendant. Evelyn SHULMAN, Third-Party Plaintiff, Appellant, v. CHRYSLER CORPORATION, a corporation, and Chrysler Motors Corporation, a corporation, Third-Party Defendants, Appellees. |
| Court | United States Appellate Court of Illinois |
Vogel & Vogel, Chicago (L. H. Vogel, Robert B. Johnstone, Chicago, of counsel), for third-party plaintiff-appellant.
Hinshaw, Culbertson, Moelmann & Hoban, Chicago (Oswell G. Treadway, Thomas J. Weithers, Chicago, of counsel), for Chrysler Corp. and Chrysler Motors Corp., third-party defendants-appellees.
The plaintiff, Robert E. Halligan, brought suit against Evelyn Shulman, alleging that he was injured as the result of a collision between the automobile which he was driving and one driven by her at the intersection of McCormick Road and Devon Avenue in Lincolnwood, Illinois, on August 8, 1958. The complaint alleged, inter alia, that defendant 'carelessly and negligently failed to apply the brakes on [her] said motor vehicle in sufficient time to stop said motor vehicle before causing it to come into collision with the automobile [of plaintiff] as aforesaid.' Miss Shulman filed an answer denying the material allegations of plaintiff's complaint and subsequently, by leave of court, filed a third-party complaint against Chrysler Corporation and Chrysler Motors Corporation. This complaint was stricken, and she was given leave to file an amended third-party complaint which alleged in substance that defendants were engaged in the business of manufacturing, selling, and distributing Dodge Coronet automobiles, and through an authorized agent and dealer sold to a member of her family a 1957 Dodge Coronet convertible prior to the date of the accident; that in the exercise of due care and caution for her own safety and that of others on the highway, while driving said Dodge Coronet, she collided with Halligan's car which had been brought to a stop at the intersection of McCormick Road with Devon Avenue; and that when she applied the brakes of her car they failed to work, as a result of which she ran into and struck the rear of Halligan's vehicle. With respect to the duty of the Chrysler corporations in the premises and their violation thereof, the balance of the complaint alleges that the Chrysler corporations knew or in the exercise of care should have known that if the Dodge Coronet convertible was defectively manufactured or negligently inspected so that defects therein were not discovered prior to its delivery, the Dodge Coronet convertible would be a dangerous instrumentality, and that it was the duty of the Chrysler corporations to exercise ordinary care commensurate with the danger involved in the design, manufacture, assembly, and inspection of automobiles manufactured by them, and particularily the said Dodge Coronet convertible, to the end that it would be free from defects likely to cause injury to the persons and property of others; that the Chrysler corporations, in violation of their duty, negligently manufactured, assembled, constructed, and inspected the said Dodge Coronet convertible so that, when sold by the corporations, it was dangerous to third persons in its operation upon the highways; that as a proximate and direct result of the negligence of the Chrysler corporations the braking mechanism on the Dodge Coronet convertible was defective, imperfect, and so negligently constructed, assembled, and manufactured that it failed on the occasion in question, without prior notice to Miss Shulman; that any right of Halligan to recover against Miss Shulman 'must result from passive negligence' on her part, and that the accident 'resulted directly and solely from the active negligence' of the corporations. Upon the corporations' motion the amended complaint was dismissed, and judgment for costs entered against Miss Shulman. The judgment order from which she appeals contained the finding required by section 50(2) of the Civil Practice Act (Ill.Rev.Stat.1959, ch. 110) 'that there is no just reason for delaying enforcement or appeal.'
The bringing in of a third-party defendant in Illinois is authorized by subsection (2) of section 25 of the Civil Practice Act which reads in part as follows: '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.'
In the original complaint filed by Halligan he alleged that Miss Shulman was liable to him as a result of the careless and negligent, and wilful and wanton, operation of her automobile. In her answer she denied that she was guilty of any of the careless and negligent, or wilful and wanton, acts alleged in the complaint. The amended third-party complaint brings the Chrysler corporations into the proceeding. Miss Shulman therein alleged that the failure of the braking mechanism caused the accident which resulted in the injuries to Halligan. It thus appears on the face of the third-party complaint that if Halligan is able to prove the allegations of careless and negligent, and wilful and wanton, misconduct on the part of Miss Shulman, she would be an active tort-feasor and certainly not...
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