Mierzejwski v. Stronczek

• Decision Date: 01 October 1968
• Docket Number: Gen. No. 52163
• Citation: 100 Ill.App.2d 68,241 N.E.2d 573
• Parties: Theodore MIERZEJWSKI, Plaintiff, v. Chet STRONCZEK, d/b/a Crest Fuel and Material Transportation, Defendant. Chet STRANCZEK, a/b/a Crest Fuel and Material Company, a/k/a Crest Leasing Company, Third-Party Plaintiff-Appellant, v. ALLIED TUBE AND CONDUIT CORPORATION, a corporation, Third-Party Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 573

241 N.E.2d 573

100 Ill.App.2d 68

Theodore MIERZEJWSKI, Plaintiff, v. Chet STRONCZEK, d/b/a Crest Fuel and Material

Transportation, Defendant.

Chet STRANCZEK, a/b/a Crest Fuel and Material Company, a/k/a

Crest Leasing Company, Third-Party Plaintiff-Appellant, v. ALLIED TUBE AND CONDUIT CORPORATION, a corporation,

Third-Party Defendant-Appellee.

Gen. No. 52163.

Appellate Court of Illinois, First District, Second Division.

Oct. 1, 1968.

John W. Gilligan, Chicago, for third-party plaintiff-appellant, Joseph B. Lederleitner, Chicago, of counsel.

John R. Sullivan, Chicago, for Allied Tube & Conduit Corp., third-party defendant-appellee.

LYONS, Justice.

This is a case involving a third party proceeding for indemnity. The defendant-third party plaintiff, Chet Stranczek, d/b/a Crest Fuel & Material Company, a/k/a Crest Leasing Company, appeals from the entry of an order by the Circuit Court on January 16, 1967, striking and dismissing Counts I and II of his three count complaint for indemnity against the instant defendant, Allied Tube and Conduit Corporation. The judgment order from which he takes this appeal, having disposed of fewer than all the claims asserted, contained the requisite finding of finality that 'there is no just reason for delaying enforcement or appeal.' (Ill.Rev.Stat. (1967) Chap. 110A, par. 304). ¹

The dispute comes before this court limited in scope to the factual averments of the respective pleadings. We must assume accordingly as true for purposes of appellate determination, the facts well pleaded by the complaint under consideration which allegations are taken as uncontested by virtue of the admissions inherent in defendant's motions to strike and dismiss. Rovekamp v. Central Const. Co., 45 Ill.App.2d 441, 195 N.E.2d 756 (1964).

The ancillary proceeding at bar emanates from an original common law action by one Theodore Mierzejwski brought against the instant plaintiff for personal injuries sustained in a vehicular mishap on May 15, 1965. By his complaint (attached as Exhibit B to the complaint now in issue), the injuries were described as having occurred when a certain truck in which Mierzejwski was riding as a passenger swerved out of control and over an embankment. The vehicle so involved was at that time under lease from the instant plaintiff to the third party defendant and was being used by the latter's employees, Mierzejwski and the driver, in the course and furtherance of their employer's business. The facts indicate that the truck had remained in the uninterrupted possession and control of the third party defendant for four months next preceding the accident.

By Mierzejwski's complaint, plaintiff, as the lessor of the vehicle, was charged in two counts with certain alleged negligent acts and/or omissions proximately causing the injuries sustained; to wit, (1) failure of plaintiff to properly inspect, maintain and repair said vehicle and its appurtenances, and (2) failure of plaintiff to inspect the brakes of and/or the vehicle leased, his letting of the vehicle in a highly dangerous and defective condition, and failure to warn of a defective condition of which plaintiff knew or in the exercise of reasonable care should have known.

To this complaint, the instant plaintiff filed an answer alternatively denying or stating no knowledge as to each of the material averments thereof. Thereafter, by leave of court, plaintiff instituted the present proceedings by third party complaint, impleading the lessee of the truck and attaching as Exhibit A thereto the written lease agreement between the immediate parties, dated January 2, 1965, in force at the time of the occurrence. With respect to the arguments advanced on appeal, the pertinent provisions of that agreement recited:

'3. The Lessee, at its own cost and expense, shall make all ordinary repairs necessary to maintain the said vehicle in good running condition; shall maintain each vehicle so it will present a neat appearance; and shall furnish all fuel, oil, lubricants and garage space for said vehicle.

However, in case of breakdown due to structural or mechanical defects, the Lessor shall promptly repair the vehicle after receipt of notice from Lessee that any vehicle has become disabled. * * *

5. The vehicle shall be operated by a safe, competent and duly-licensed driver selected, employed and under the orders and directions of and paid by the Lessee. * * *

6. The Lessee shall be liable for all claims against Lessor or Lessee arising out of the negligent operation of the vehicles leased, and therefore shall reimburse Lessor for any judgment therefor or part thereof recovered against Lessor which is not satisfied out of the proceeds of insurance provided for in the following paragraph. * * *

9. Motor vehicles leased hereby shall be under exclusive and complete possession, use, direction and control of Leassee (sic) during the period of this lease. * * *'

Plaintiff sounds this action over for indemnity in two alternative and mutually exclusive counts founded respectively upon principles of contract and tort liability. Count I predicates itself, inter alia, upon the contractual relationship and obligations of the parties under their lease agreement. It asserts, as the basis of the action, defendant's breach of the express indemnity covenant of paragraph 6 thereof as well as the breach of an implied duty to perform its obligations under the contract in a reasonably safe manner.

By Count II in tort, plaintiff alleges that defendant, by and through its employee, operated and utilized the leased vehicle by improper use of the braking devices at both excessive speeds and without maintaining the proper lookout, and that this negligent conduct was the proximate cause for the complained of injuries to Mierzejwski. Plaintiff prays, on the basis of respondeat superior, for contribution as but a passive tortfeasor, if himself liable, from defendant as the more culpable or procuring wrongdoer for any sums he might be adjudged to suffer to the principal plaintiff.

Plaintiff's prayer in Count III of the complaint (as amended) for property damage to the truck was not the object of dismissal below and is in no way involved in this appeal.

It is apparent from the state of this record that as to Count I of the complaint, the judgment order of dismissal should be vacated. Defendant had been represented in the trial court proceedings by separate counsel as to Counts I and II respectively, each having successfully entered a motion to strike and dismiss in its behalf. As to plaintiff's pursuit of Count I of his complaint for contractual indemnity, defendant has neither been represented by counsel nor in any capacity endeavored to defend its cause in the reviewing court, albeit the prevailing party on the issue below. Counsel appearing and arguing in defendant's behalf in this appeal has, moreover, expressly acknowledged to the court that his representation was limited to a defense of the dismissal of Count II.

Our recent holding in Halperin v. Darling & Co., 80 Ill.App.2d 353, 225 N.E.2d 92 (1967), involving a similar action brought upon the express indemnity provision of a lease, is not to be misconstrued as applicable to the present factual circumstance. There, unlike the case at bar, the asserted acts of negligence were those of the lessor who sought the benefit of the lessee's express covenant to indemnify. By the peculiar circumstances manifesting themselves in the instant case, we are not in a position to say that justification exists for barring plaintiff's pursuit of this action beyond the pleadings stage. Where, as here, the pleadings set forth allegations which evidence some possibility of recovery under the terms or tenor of the contract, the action is improperly dismissed on motion. Blaszak v. Union Tank Car Co., 37 Ill.App.2d 12, 184 N.E.2d 808 (1962); DeTienne v. S. N. Nielsen Co., 45 Ill.App.2d 231, 195 N.E.2d 240 (1963). In any event, where the moving party has in all respects perfected his appeal, the appellee's acquiescence in and to the ex parte arguments advanced on appeal are deemed tantamount to a confession of error warranting a reversal and remandment of the cause without an initial examination into the merits of the case. Paulson v. Ades, 71 Ill.App.2d 464, 218 N.E.2d 836 (1966).

There remains to be resolved the single question of whether Count II of the complaint under consideration alleges sufficient provable facts to state a cause of action for contribution; i.e., indemnity. The expeditious solution offered by defendant, and with which we do not understand plaintiff to dispute in principle, bars as a general proposition attempts at contribution among joint tortfeasors. Our attention, however, has been called to the recognition and efforts of the courts of this State to mitigate the sometimes harsh consequences flowing from a rigid adherence to the absolute bar of the rule. Responding to these inequities, there has evolved, as is discussed in Sargent v. Interstate Bakeries, Inc., 86 Ill.App.2d 187, 229 N.E.2d 769 (1967), certain correlative principles of ad hoc application to meet the exigencies of particular situations.

Notable among these excepting circumstances is the judicially created theory of implied indemnity, whereby, on the basis of an imposed in law duty of care, a party seeking to be indemnified, whose fault is limited to negligence in a technical or passive sense, is allowed restitution from an indemnitor whose acts of causal negligence are active or primary in nature. Stewart v. Mister Softee of Illinois, Inc., 75 Ill.App.2d 328, 221 N.E.2d 11 (1966); Spivack v. Hara, 69 Ill.App.2d 22, 216 N.E.2d 173 (1966). The basis of the action can be of a non-contractual or quasi-contractual character; Reynolds v. Illinois Bell Tel. Co., 51 Ill.App.2d 334, 201 N.E.2d 322 (1964) founded upon the breach of this implied common law duty. It is to this multifaceted legal theory that plaintiff addresses...