Loehr v. Illinois Bell Tel. Co.

• Decision Date: 15 July 1974
• Docket Number: No. 58649,58649
• Citation: 21 Ill.App.3d 555,316 N.E.2d 251
• Court: United States Appellate Court of Illinois
• Parties: Dee Ann LOEHR, Plaintiff, v. ILLINOIS BELL TELEPHONE COMPANY and M. Weil & Sons, Inc., Defendants. ILLINOIS BELL TELEPHONE COMPANY, Counter-Plaintiff-Appellant, v. M. WEIL & SONS, INC., Counter-Defendant-Appellee.

Page 251

316 N.E.2d 251

21 Ill.App.3d 555

Dee Ann LOEHR, Plaintiff, v. ILLINOIS BELL TELEPHONE COMPANY and M. Weil & Sons, Inc.,

Defendants.

ILLINOIS BELL TELEPHONE COMPANY, Counter-Plaintiff-Appellant, v. M. WEIL & SONS, INC., Counter-Defendant-Appellee.

No. 58649.

Appellate Court of Illinois, First District, First Division.

July 15, 1974.

Donald H. Sharp, L. Bow Pritchett, Edwart Butts, and Richard G. Siegel, Chicago, for appellant.

John J. Reidy, Chicago, for appellee.

EGAN, Presiding Justice.

The plaintiff, Dee Ann Loehr, sued to recover damages for personal injuries sustained due to the negligence of the defendants, Illinois Bell Telephone Company (Illinois Bell) and M. Weil & Sons, Inc. (Weil). Each defendant filed an answer to the complaint, and Illinois Bell filed a counterclaim for indemnity against Weil alleging that any negligence of Illinois Bell was passive and that of Weil was active. The court entered an order on November 21, 1972, sustaining Weil's motion to dismiss the counterclaim with prejudice. In its order the court made the appropriate finding rendering the order appealable. The only issue is whether the third-party complaint alleged a cause of action for common law indemnity.

The complaint by Loehr alleged that Illinois Bell 'negligently and carelessly loaded tree branches and debris on its truck so that it fell' into the street in the path of Loehr's automobile causing her to make a sudden stop. It further alleged that Weil negligently operated a vehicle 'too fast for conditions,' failed to maintain a proper lookout and followed the plaintiff's vehicle too close. The counterclaim of Illinois Bell attached a copy of the Loehr complaint and alleged that if Illinois Bell was found guilty of negligence as alleged in the complaint its negligence was 'merely passive in that the only negligence alleged here is permitting a certain twig or stick to fall to the pavement in front of plaintiff's vehicle, which twig or stick did not even come in contact with the plaintiff's vehicle.'

Illinois Bell's first contention is that it was error to dismiss the complaint on motion, arguing that evidence was required to determine the type of negligence the defendants had committed. The same argument has been discussed in other Appellate Court cases with inconsistent results. Cases which reversed orders dismissing third-party complaints include Mullins v. Crystal Lake Park Dist., 129 Ill.App.2d 228, 262 N.E.2d 622, Mierzejwski v. Stronczek, 100 Ill.App.2d 68, 241 N.E.2d 573, Sargent v. Interstate Bakeries, Inc., 86 Ill.App.2d 187, 229 N.E.2d 769, Trzos v. Berman Leasing Co., 86 Ill.App.2d 176, 229 N.E.2d 787 and Blaszak v. Union Tank Car Co., 37 Ill.App.2d 12, 184 N.E.2d 808. Others have upheld dismissals on the pleadings: Burke v. Skyclimber, 57 Ill.2d 542, 316 N.E.2d 516; Lindner v. Kelso Burnett Electric Co., 133 Ill.App.2d 305, 273 N.E.2d 196; Gillett v. Todd, 106 Ill.App.2d 287, 245 N.E.2d 923. With the exception of the Mullins case, all of those reversing dismissals preceded the case of Muhlbauer v. Kruzel, 39 Ill.2d 226, 234 N.E.2d 790. The Muhlbauer court took note of those cases, including some cited by Illinois Bell here, which upheld complaints '(b)ecause a plaintiff may amend his complaint, even after trial, to conform the pleadings to the proof.' (The Mullins court took the position that Muhlbauer cited the cases 'without disapproval.' In Moody v. Chicago Transit Authority, 17 Ill.App.3d 113, 307 N.E.2d 789, the specially concurring opinion concluded that Muhlbauer had overruled them by implication.) Nonetheless, the Muhlbauer court upheld the dismissal of a complaint saying:

'We recognize that the policy of section 25(2) can be frustrated by a rigid and formal approach to the pleadings; nevertheless, a third-party complaint must disclose some relationship upon which a duty to indemnify may be predicated.'

Illinois Bell argues here, as apparently the third-party plaintiff in Muhlbauer did, that complaints may be amended to conform to the proof; and 'the evidence may show that Illinois Bell did not load the branches but merely failed to inspect the branches loaded by someone else, or it may show that the branches were properly loaded but that a branch unexpectedly broke off from a larger branch.' It would appear that if the latter hypothesis suggested by Illinois Bell is supported by the evidence, there would be nothing for which to indemnify it because it would be found not guilty. But we are sure other factual situations could be supplied by conjecture by Illinois Bell to support a complaint for indemnity.

The Muhlbauer opinion pointed out that the purpose of Section 25(2) of the Civil Practice Act was 'to save the time and cost of a reduplication of evidence, to obtain consistent results from identical or similar evidence, and to do away with the serious handicap to a defendant of a time difference between a judgment against him, and a judgment in his favor against the third party defendant.' Judicial economy and the right of a defendant after a judgment against him to a speedy resolution of his action over are laudable purposes; but they are not endalls to be slavishly served while ignoring or discarding time-honored rules of pleading. If the Facts alleged do not state a cause of action, a complaint should be dismissed, and it is no answer to say that facts other than those alleged might be shown that would support an amended complaint. Further, there is no absolute requirement that an action over must be heard at the same time as the original complaint. (Gertz v. Campbell, 55 Ill.2d 84, 302 N.E.2d 40; Williams v. Brown Manufacturing Co., Inc., 93 Ill.App.2d 334, 236 N.E.2d 125, reversed on other grounds, 45 Ill.2d 418, 261 N.E.2d 305; Wiegel v....