Muhlbauer v. Kruzel
| Decision Date | 19 January 1968 |
| Docket Number | No. 40495,40495 |
| Citation | 234 N.E.2d 790,39 Ill.2d 226 |
| Parties | Alfred A. MUHLBAUER v. J. M. KRUZEL. J. M. KRUZEL, Appellant, v. WILSON AND COMPANY, Appellee. |
| Court | Illinois Supreme Court |
Morrill & Koutsky and Robert A. Sprecher, Chicago, for appellant.
Hinshaw, Culbertson, Moelmann & Hoban, Chicago (John M. Moelmann, D. Kendall Griffith and Donald W. Garlinger, Chicago, of counsel), for appellee.
The circuit court of Cook County sustained a motion to dismiss a third-party complaint, and entered judgment for the third-party defendant. The Appellate Court, First District, affirmed, (78 Ill.App.2d 343, 223 N.E.2d 227) and we granted leave to appeal.
The original action was brought by the plaintiff, Alfred A. Muhlbauer, against the defendant, J. M. Kruzel individually and doing business as J. M. Kruzel Certified Food Mart. The complaint alleged that 'the defendant negligently hired, caused or permitted a person to dress as a clown and distribute autographed photographs of himself to the public standing upon and/or walking along the public sidewalk' in front of the defendant's store 'for the purpose of promoting the business of said retail grocery and food market and/or a product or products sold therein, and drawing the public, in large numbers thereto.' It alleged that the crowd which gathered obstructed free passage and endangered the safety of the public, and that the defendant 'failed to maintain proper supervision over * * * the crowd', and failed to warn the public of danger, to provide an area in which the public could stand or walk with safety, and to take reasonable precautions for the safety of the public. It also alleged that the crowd constituted a nuisance to the public, and that 'as a result of one or more of the foregoing negligent acts or omissions and/or nuisance', the plaintiff was knocked down and injured.
The defendant's answer admitted that he owned the store and that a person dressed as a clown was distributing photographs in front of it. It denied that the defendant 'hired or caused' the clown to be present, denied that the defendant caused anything to be done to promote his business or any product sold in the store, and denied that he did anything to draw the public in large numbers to the store.
The defendant (hereinafter Kruzel) then filed his amended third-party complaint seeking indemnity from Wilson & Co., Inc., the third-party defendant. That complaint alleged that the acts which were alleged in the original complaint to have been performed by him were in fact performed by Wilson, and that any wrongful acts allegedly committed by him 'were passive acts only and not active.' The third-party complaint also alleged that Wilson had an employee who was a giant of considerable height and dressed in a costume simulating a giant known as 'Corn King Giant' who was standing in front of the store and caused a considerable crowd to gather; that Wilson was promoting a product which it manufactured and distributed; and that the presence of the clown was not at the request and invitation of Kruzel.
The circuit court dismissed the third-party complaint and entered a final judgment in favor of Wilson against Kruzel. It ruled that 'if there was a finding of negligence against the third party plaintiff and in favor of the plaintiff said finding would be based upon the active negligence of the third party plaintiff,' and that 'the clown as described in the original complaint was acting for the mutual benefit of both the third party plaintiff and the third party defendant and the clown was present to induce customers to come into the store owned by the third party plaintiff.'
The appellate court affirmed, holding that 'the acts of another do not impose liability on one unless some relationship between the parties or some circumstance imposes a nondelegable duty upon the passive party,' and that 'the amended third-party complaint demonstrates no relationship or circumstance which creates a non-delegable duty on Kruzel.' 78 Ill.App.2d at 347, 348, 223 N.E.2d at 229, 230.
Section 25(2) of the Civil Practice Act permits a defendant to implead as a third-party defendant any 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.' (Ill.Rev.Stat.1965, chap. 110, par. 25(2).) The purpose of this section is the same as that of Federal Rule 14 (), which is '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.' (3 Moore, Federal Practice, par. 1404 (2d ed. 1964). Section 25(2) was designed to avoid circuity of action and 'to permit the determination of the rights and liabilities of all parties before a single tribunal and upon the same evidence.' Miller v. DeWitt, 37 Ill.2d 273, 287, 226 N.E.2d 630, 640.
The original Federal Rule 14 authorized a defendant to implead 'a person not a party to the action who is or may be liable To him or to the plaintiff for all or part of the plaintiff's claim against him.' (Italics spplied.) 3 Moore Federal Practice, par. 14.01 (2d Ed. 1964.)) Section 25(2) and the present Federal rule, however, permit a defendant to bring in only a person 'who is or may be liable to him.' The section is not a device for tendering a new defendant to the plaintiff, nor dose it create substantive rights. Consequently, a third-party complaint will be dismissed if it fails to state a cause of action by the defendant against the third-party defendant.
In this State contributory negligence has precluded recovery in a tort action at least since 1894, when in City of Lanark v. Dougherty, 153 Ill. 163, 165, 38 N.E. 892, 893, Mr. Justice Magruder stated for a unanimous court, 'The doctrine of comparative negligence is no longer the law of this court.' (See, Green, Illinois Negligence Law, 39 Ill.L.Rev. at 36, 53.) And a negligent defendant has not been permitted to recover contribution from his joint tortfeasor in a third-party action under section 25(2), Chicago and Illinois Midland Railway Co. v. Evans Construction Co., 32 Ill.2d 600, 208 N.E.2d 573.
The doctrine of implied indemnity has been utilized to mitigate the harsh effects that could result...
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...v. Evans Construction Co., 32 Ill.2d 600, 603, 208 N.E.2d 573; Miller v. DeWitt, 37 Ill.2d 273, 289, 226 N.E.2d 630; Muhlbauer v. Kruzel, 39 Ill.2d 226, 234 N.E.2d 790; Reese v. Chicago, Burlington & Quincy R.R. Co., 55 Ill.2d 356, 303 N.E.2d 382; Carver v. Grossman, 55 Ill.2d 507, 510, 305......
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