Manthei v. Heimerdinger

• Decision Date: 09 October 1947
• Docket Number: Gen. No. 10147.
• Citation: 75 N.E.2d 132,332 Ill.App. 335
• Parties: MANTHEI v. HEIMERDINGER et al.
• Court: United States Appellate Court of Illinois

332 Ill.App. 335

75 N.E.2d 132

MANTHEI

v.HEIMERDINGER et al.

Gen. No. 10147.

Appellate Court of Illinois, Second District.

Oct. 9, 1947.

Appeal from Circuit Court, Stephenson County; Harry E. Wheat, Judge.

Action by Fred Manthei against Lewis G. Heimerdinger, doing business as the 26 Club, and Freeport Motor Casualty Company, a corporation, for injuries resulting from an automobile collision. From an adverse judgment, plaintiff appeals.

Judgment affirmed.John H. Page, B. Jay Knight, Frederick H. Haye, and Thomas A. Keegan, all of Rockford, for appellant.

Burrell, Burrell & Beckmire, of Freeport, for appellee.

DOVE, Justice.

Appellant, Fred Manthei, filed his complaint against Louis G. Heimerdinger and the Freeport Motor Casualty Company under the provisions of the Dram Shop Act seeking to recover damages for injuries which he alleged he sustained on August 9, 1943 when an automobile in which he was riding as a passenger was struck by another automobile negligently driven by Jan Kerch at the intersection of East Linden Street and West Galena Avenue in the city of Freeport. The defendant, Heimerdinger, is charged with having previously, on that day, furnished Kerch with intoxicating liquors causing her to become intoxicated and the Freeport Motor Casualty Company is made a defendant as the owner of the premises in which Heimerdinger conducted his tavern business.

The defendants filed a joint answer admitting the ownership of the tavern and premises but denied the other allegations of the complaint. The answer of the defendants also set up four separate affirmative defenses. For the purpose of this opinion only the fourth need be referred to. This fourth affirmative defense sets up that the defendant, Freeport Motor Casualty Company, as lessor of the premises in which the other defendant operated his tavern, was liable to the plaintiff, if at all, as the guarantor of the defendant, Heimerdinger, as provided by the Dram Shop Act and that Heimerdinger, if liable to the plaintiff at all, is only jointly liable with Kerch; that the Pennsylvania Casualty Company was the insurance carrier and liable for personal injuries resulting from the operation of the Jan Kerch car, and that it paid to the plaintiff herein $3000.00 and in consideration thereof the plaintiff executed and delivered to Jan Kerch and the Insurance Company, under his hand and seal, a release whereby he forever released and discharged Jan Kerch of and from all liability, claim, demand and cause of action arising out of the matters set forth in plaintiff's complaint and concluded that thereby the plaintiff also released these defendants from all claims arising out of said collision as set forth in the complaint.

The record shows that the plaintiff filed a motion to strike this fourth affirmative defense, as well as the second and third affirmative defenses, and counsel for both appellant and appellees, in their briefs, state that the court overruled that motion. Neither the abstract or record show any order entered by the court in connection with plaintiff's motion to strike but does show that a reply was filed by the plaintiff in which he denied that the defendant, Freeport Motor Casualty Company, as lessor of the premises, was liable as guarantor of the defendant, Heimerdinger, but avers that this defendant is liable as owner and lessor of the premises as provided by the Dram Shop Act. He admitted that the Insurance Company which insured Kerch settled plaintiff's claim against her and paid to the plaintiff $3000.00 in consideration of his releasing Kerch from any further liability on account of plaintiff's injuries and admits that he executed and delivered to Jan Kerch a written instrument releasing her from further liability or responsibility for his injuries. He denied that Heimerdinger is liable only jointly with Kerch and denies that Kerch, Heimerdinger and the Freeport Motor Casualty Company were joint tort feasors and denied that the release he executed operated to release the defendants to this action from liability for his injuries under the Dram Shop Act.

With the pleadings in this condition it was stipulated by the attorneys representing the parties hereto that the Pennsylvania Insurance Company, prior to the commencement of this suit, for and on behalf of Jan Kerch, issued a draft for $3000 and delivered the same to the plaintiff herein, Fred Manthei, and in consideration thereof received from him a general release releasing Jan Kerch of and from any and all liability arising out of the accident upon which this proceeding is based. Thereupon the defendants moved for judgment on the pleadings alleging that plaintiff's reply to defendant's fourth affirmative defense admits the allegations therein. Upon a hearing the trial court held that it appeared from the pleadings, that plaintiff received a single, indivisible injury in a single accident and had received $3000.00 therefor from one wrongdoer. That the plaintiff had executed a release to her for that injury and it therefore followed that defendants were entitled to judgment. Accordingly the court sustained defendant's motion and rendered judgment in favor of the defendants and against the plaintiff in bar of the action and for costs. From this judgment the plaintiff appeals.

Counsel for appellant, in support of their contention that the release executed by the plaintiff to Jan Kerch should not bar this action against appellees, argue that the liability of Jan Kerch arose under the principles of the common law and is based on negligence, that this action is a statutory one brought under the provisions of the Dram Shop Act, that no joint liability exists between Jan Kerch and the defendants in this proceeding and therefore a release of a common law right of action does not operate to release appellees whose liability is purely statutory.

In order to sustain the judgment of the trial court appellees insist that it is immaterial whether defendants in the instant action and Jan Kerch are regarded as joint tort feasors or not, that whatever their relationship may be called, the law is that a release of one operates to release all, so long as it is shown that their wrongful acts produced a single, indivisible injury. Counsel state that their fourth affirmative defense is grounded on the theory that where one receives a single injury for which a number of people are legally liable to respond in damages for the entire injury that then a release of one is a release of all, but counsel insist that inasmuch as the plaintiff contested this theory by a motion to dismiss this fourth affirmative defense and the trial court having overruled that motion and plaintiff having then elected to file a reply thereto admitting the facts set forth in defendants' fourth affirmative defense that the question whether the release executed by the plaintiff which released Jan Kerch from any demands plaintiff had against her also released the defendants, is not presented to this court for review.

There is no merit in this contention. The record shows that this motion to dismiss or strike the fourth affirmative defense was not passed upon by the court. Whether it was or whether plaintiff abandoned it is immaterial. A motion to strike or dismiss under our present practice is the same as a demurrer under our former practice and it is true as stated in Nordhaus v. Vandalia R. Co., 242 Ill. 166, 169, 89 N.E. 974, that the law has always been that a demurrer is waived by pleading over but the record here shows that, without objection by defendants, a reply to the fourth affirmative defense was filed which admitted the allegations of this fourth affirmative defense so far as it pleads the execution of this release. The effect therefore of filing such a reply, and entering into the stipulation referred to and defendants' motion for judgment on the pleadings and record was to raise the same question which would have been raised had the court denied plaintiff's motion to strike this affirmative defense and had plaintiff refused to reply and elected to abide his motion to strike and defendants had then moved for judgment. In the trial court the defendants did not question the form or substance of the reply but joined with the plaintiff in entering into a stipulation and then defendants filed their motion for judgment. The trial court, counsel for the plaintiff and counsel for defendants all treated that motion as properly raising the question whether or not this release executed by Jan Kerch is a bar to the instant action. Defendants contended that it was and plaintiff insisted that it was not. The trial court was not asked to hold nor did it hold that the reply was defective in form or substance. Upon defendant's motion for judgment, the trial court adopted defendants' view of the law and held that this release so set forth in defendants' fourth affirmative defense, and its execution admitted by the plaintiff's reply and by the stipulation of the parties, operated as a bar to this proceeding. This was the question raised by the pleadings. This was the question the parties desired the trial court to pass upon and this is the question argued in the trial court and also in this court. Counsel for appellant do not claim that the release executed by their client was not a general release and concede the general rule to be that a general release to one of several joint tort- feasors discharges the other. It is insisted, however, that the defendants and Jan Kerch were not joint tort-feasors and that the release of Jan Kerch's common law liability did not extinguish appellant's statutory cause of action against appellees. Counsel cite and rely upon Philips v. Aretz, a Minnesota case reported in 215 Minn. 325, 10 N.W.2d 226, and McKenna v. Austin, 77 U.S.App. D.C. 228, 134 F.2d 659, 148 A.L.R. 1253.

In the Philips-Aretz case the plaintiff, a minor, brought a suit against a dram shop keeper and the surety on his bond to...