Heinrich v. Peabody Intern. Corp.

• Decision Date: 20 January 1984
• Docket Number: No. 57847,57847
• Citation: 459 N.E.2d 935,99 Ill.2d 344
• Parties: , 76 Ill.Dec. 800 Eileen HEINRICH, Special Adm'r, v. PEABODY INTERNATIONAL CORPORATION et al. (San-Dee Building Maintenance Company, Appellant, v. Brookshore Lithographers, Inc., Appellee).
• Court: Illinois Supreme Court

Page 935

459 N.E.2d 935

99 Ill.2d 344, 76 Ill.Dec. 800

Eileen HEINRICH, Special Adm'r, v. PEABODY INTERNATIONAL CORPORATION et al. (San-Dee Building Maintenance Company, Appellant, v. Brookshore Lithographers, Inc., Appellee).

No. 57847.

Supreme Court of Illinois.

Jan. 20, 1984.

Wildman, Harrold, Allen & Dixon, Chicago, for third-party plaintiff-appellant, San-Dee Building Maintenance Co.; Howard T. Brinton, Craig M. White, Thomas E. Patterson, Chicago, of counsel.

Sweeney & Riman, Ltd., Chicago, for third-party defendant-appellee, Brookshore Lithographers, Inc.; Kevin F. Donohue, Chicago, of counsel.

SIMON, Justice:

This case is before us on the appeal of San-Dee Building Maintenance Company (San-Dee), one of three defendants in a wrongful death action brought by Eileen Heinrich, from the dismissal of a portion of its third-party complaint against Brookshore Lithographers, Inc. (Brookshore), a party not named in the original action.

The plaintiff's decedent was an employee of Brookshore at the time of his death. According to plaintiff's complaint filed in the circuit court of Cook County, he was working on a trash compactor on Brookshore's premises when Ignacio Ayala, a janitor for San-Dee who was performing work at the Brookshore plant, activated the compactor, causing his death by decapitation. The complaint alleged that Ayala was acting as San-Dee's agent at the time of the incident, that Ayala was negligent in his operation of the machine and in failing to make certain that nobody was working on it before activating it, and that San-Dee was negligent in its hiring, training and supervision of its employees. In another count plaintiff alleged that certain defects in the compactor of which the manufacturer was or should have been aware rendered it unreasonably dangerous, and that its dangerous propensities were the direct and proximate cause of the decedent's death. This allegation was incorporated into the count charging Ayala and San-Dee with negligence.

San-Dee denied the charges of negligence and filed a third-party action against Brookshore seeking contribution and indemnification. In support of its claim for indemnity it alleged that Brookshore was engaged in the business of salvaging and selling paper scrap from its printing operations, that Brookshore had arranged with San-Dee to use certain of its employees to assist in this salvage operation, that Ayala was "loaned" to Brookshore pursuant to this agreement and was working under Brookshore's supervision at the time of the accident, that Brookshore owned and maintained the compactor which caused the death, and that Brookshore was negligent in failing to discover and warn of the unsafe condition of the machine, prohibit unrestricted access to the machine during work hours, provide adequate warning of the presence of men working on the machine and restrict access accordingly, label the machine's switches and power controls in a proper manner, and provide adequate training and supervision to the workers who used the machine. Although the third-party complaint was divided into only two counts, we construe it to allege three separate grounds of recovery from Brookshore: first, a right of contribution; second, implied indemnity under the common law alleging a pre-tort relationship and active negligence on the part of Brookshore; and third, that the allegedly negligent employee (Ayala) was a servant loaned by San-Dee to Brookshore and thus Brookshore was responsible for his conduct.

Brookshore filed a motion to strike the latter two portions of San-Dee's complaint, arguing that the complaint revealed no basis for indemnity and that Ayala's status as a "loaned servant" should have been pleaded as an affirmative defense to the original complaint rather than as a basis for a third-party action. The trial court agreed with the latter contention, but instead of addressing the former it dismissed the count on the ground that after this court's decision in Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill.2d 1, 15 Ill.Dec. 829, 374 N.E.2d 437, and the subsequent enactment of the Contribution Among Joint Tortfeasors Act (Ill.Rev.Stat.1979, ch. 70, par. 301 et seq.) indemnity was no longer viable in Illinois. It certified that there was no just reason for delaying enforcement or appeal. (87 Ill.2d R. 304(a).) However, the appellate court, in a Rule 23 order (87 Ill.2d R. 23), dismissed San-Dee's appeal on jurisdictional grounds (110 Ill.App.3d 1198, 73 Ill.Dec. 959, 454 N.E.2d 1208), ruling that, inasmuch as the claim for contribution was left standing, the dismissal of the other third-party claims was not a final, appealable order. We granted San-Dee's petition for leave to appeal.

The dismissal of a single count of a complaint containing multiple counts is not always appealable, as the appellate court pointed out. (See Prado v. Evanston Hospital (1979), 72 Ill.App.3d 622, 28 Ill Dec. 680, 390 N.E.2d 1270.) Nevertheless, this court has held that when the bases for recovery under the counts that are dismissed are different than those under the counts left standing, the dismissal is appealable because it disposes of a distinct cause of action. (Cunningham v. Brown (1961), 22 Ill.2d 23, 25, 174 N.E.2d 23.) This may occur when the grounds for recovery under the various counts derive from different statutes or common law doctrines (Cunningham v. Brown ) or when the various theories of recovery require "different elements * * * to establish a proper claim" or involve "differing standards of plaintiff's conduct which will bar recovery" (Freeman v. White Way Sign & Maintenance Co. (1980), 82 Ill.App.3d 884, 891, 38 Ill.Dec. 264, 403 N.E.2d 495).

In this case the appellate court determined that contribution and indemnification were not distinct causes of action because both were predicated on the same theory of recovery. We do not agree. Contribution in Illinois is a statutory remedy which involves a sharing of payment of damage awards and is available to all parties who are "subject to liability in tort arising out of the same injury * * * or the same wrongful death" (Ill.Rev.Stat.1979, ch. 70, par. 302(a)). Indemnity, on the other hand, is a common law doctrine providing for the complete shifting of liability on a showing that there was a pre-tort relationship between the guilty parties and a qualitative distinction between their conduct. Muhlbauer v. Kruzel (1968), 39 Ill.2d 226, 231-32, 234 N.E.2d 790; Van Jacobs v. Parikh (1981), 97 Ill.App.3d 610, 613, 52 Ill.Dec. 770, 422 N.E.2d 979.

The elements of contribution and indemnification are different. A claimant seeking the former need show only a common injury which his acts and those of the contributor combined to bring about and which makes them subject to liability in tort (Ill.Rev.Stat.1979, ch. 70, par. 302(a)), while one seeking the latter must show a pre-tort relationship with the indemnitor and some significant difference in the nature of their respective conduct which justifies a shifting of liability. The measure of recovery is different: indemnity is all or nothing, while absent inability to respond in damages by other culpable parties, no party is liable to make contribution beyond his pro rata share of the common liability as measured by the extent to which his acts or omissions, whatever their nature, proximately caused the injury (Ill.Rev.Stat.1979, ch. 70, par. 303; Dowd, Questions Under Comparative Negligence Law, 65 Chi.B.Rec. 98, 102 (1983)). In addition, the absence of a qualitative difference in the nature of the conduct of the guilty parties will defeat a claim for indemnification (Harris v. Algonquin Ready Mix, Inc. (1974), 59 Ill.2d 445, 449, 322 N.E.2d 58), while it is not fatal to a claim for contribution, except, perhaps, where made so by a statute creating a special standard of conduct and absolute liability for its breach. In short, contribution and indemnification are...