Parr v. Great Lakes Express Company

• Decision Date: 16 July 1973
• Docket Number: No. 72-1011 and 72-1759.,72-1011 and 72-1759.
• Citation: 484 F.2d 767
• Parties: Janice PARR, Individually and as Administrator of the Estate of David W. Parr, Deceased, Plaintiff, v. GREAT LAKES EXPRESS COMPANY, a foreign corporation, Defendant and Third-Party Plaintiff-Appellant, v. CHICAGO WESLEY MEMORIAL HOSPITAL, an Illinois not-for-profit corporation and Robert Thonney, Third Party Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

484 F.2d 767 (1973)

Janice PARR, Individually and as Administrator of the Estate of David W. Parr, Deceased, Plaintiff, v. GREAT LAKES EXPRESS COMPANY, a foreign corporation, Defendant and Third-Party Plaintiff-Appellant, v. CHICAGO WESLEY MEMORIAL HOSPITAL, an Illinois not-for-profit corporation and Robert Thonney, Third Party Defendants-Appellees.

Nos. 72-1011 and 72-1759.

United States Court of Appeals, Seventh Circuit.

Argued January 23, 1973.

Decided July 16, 1973.

Rehearing Denied August 7, 1973.

Michael E. Dowd, Philip J. McGuire, Chicago, Ill., for appellant.

John M. Moelmann, D. Kendall Griffith, Chicago, Ill., for appellees.

Before KILEY, FAIRCHILD and PELL, Circuit Judges.

PELL, Circuit Judge.

This is an appeal from the dismissal of a third-party complaint by Great Lakes Express Company in which it sought judgment against Chicago Wesley Memorial Hospital and its employee Robert Thonney. The substantive aspect of the case revolves around the active-passive negligence indemnity law of the State of Illinois.

Initially there was raised in No. 72-1011 a question of the propriety of the appeal dependent upon whether the order of dismissal created appealable finality under Rule 54(b), Fed.R.Civ.P. Prior to the hearing in this court, the original action from which the third-party complaint developed was settled, leaving the status of the litigation in the district court as unarguably final. We do not find it necessary to decide the appealability question raised in No. 72-1011 as the appeal is properly here in any event and the two appeals have been consolidated for consideration and decision.

The original suit below had sought damages from Great Lakes on the basis that plaintiff's decedent had died as the result of being hit by a truck operated by an employee of Great Lakes. Parr, the decedent, had been at the time an employee of Wesley Memorial and we assume that his Administrator would have been confined to workmen's compensation relief only insofar as the Hospital or a fellow employee was concerned.

The dismissed third-party complaint is in two counts. The first count proceeds on the theory that certain specifically alleged acts of negligence on the part of Wesley Memorial, acting through its employee, were the sole and proximate cause of Parr's death. We do not understand the function or purpose of this count. If the accident was solely and proximately caused by someone else's negligence this would seem to be a complete defense to the original action and would not seem to be the basis of a third-party action, which presupposes liability on the part of the original defendant which he is attempting to pass on to the third-party defendant. Although Count I does reflect by its specific allegations the type of proof which presumably Great Lakes would have proffered in support of Count II, which asserted the active-passive negligence distinction, we must conclude that it was properly dismissed.

Count II, including the allegations incorporated by reference from Count I, insofar as material here alleges the following. Wesley Memorial had leased a truck for delivery which had been parked on a Chicago street by Thonney. At the time of the accident, the Great Lakes driver allegedly "was in the process of backing a Great Lakes truck under the direction, supervision and control of Third-Party Defendant, Robert Thonney, in an easterly direction, to come up to and connect with the vehicle leased by Wesley Memorial." The specific acts of negligence charged in Count I against the Hospital and Thonney, for some reason, are not incorporated by reference in Count II. The third-party complaint further alleges that any negligence established in the Parr action against Great Lakes would be passive or secondary whereas primary or active acts of negligence would be established against the Hospital and Thonney.

Although Count II could never be said to be a candidate for any book of model pleadings, we must examine it in the context in which we find it, i. e., as having been dismissed before trial by the district court. That court simply granted the motion to dismiss without specifying the reasons therefor. However, it appears fair to conclude that the court dismissed the third-party complaint on the basis that it failed to state a claim upon which relief could be granted, pursuant to Rule 12(b), Fed.R. Civ.P. We need not determine whether federal or state law is applicable to this particular phase of the matter¹ as there is substantial accord between the two on the appropriate treatment. The complaint must be construed liberally, with all factual allegations deemed to be true and with doubts to be resolved in favor of the pleader. Jung v. K. & D. Mining Co., 260 F.2d 607, 608 (7th Cir. 1958). Dismissal is not favored unless it appears that in no event would the pleader be able to prove an actionable claim. Miller v. DeWitt, 37 Ill.2d 273, 287-288, 226 N.E.2d 630, 640 (1967).

Illinois Law

For at least a century, Illinois courts have repeatedly stated that contribution between joint tortfeasors is not allowed. See, e. g., Miller v. DeWitt, supra at 289, 226 N.E.2d at 641; Nelson v. Cook, 17 Ill. 443 (1856). However, possibly to alleviate the harsh results visited upon a secondarily liable party by this prohibition, the courts have evolved certain doctrines, notably, the concept of implied indemnity or "active" versus "passive" negligence, in which an indemnitor, through his active or primary negligence, creates legal liability for the indemnitee, who is only passively or secondarily liable. If a party can prove himself to have been merely "passively" negligent, he can shift the entire burden for the commission of the tort to the "active" tortfeasor.²

Not surprisingly, because the concepts of "active negligence" and "passive negligence" are imprecise and are difficult to apply to a given factual situation, the case law provides uncertain guidance.³ However, one recent decision cited by Great Lakes, Carver v. Grossman, 6 Ill. App.3d 265, 285 N.E.2d 468 (1972), appeal pending in the Illinois Supreme Court, is factually similar to the case before us and thus is helpful here.

In Carver, the original plaintiff was an employee at a service station and was working in front of a customer's car. The hood of the car was up and, apparently at the direction of Bishop, the station operator, the customer entered the car and started the motor while the car was in gear. The car moved forward, severely injuring the plaintiff, Carver. Carver sued Grossman, the administrator of the customer's estate, and the administrator then filed a third-party action against Bishop. After a bench trial on the third-party action (the original action was settled), the trial court held that third-party defendant Bishop had been guilty of active and primary negligence while the deceased customer had been guilty only of passive negligence. The Appellate Court affirmed and pointed out that Bishop controlled the entire operation of the service station; he had placed the automobile in the service stall; he had left the key in the ignition with the car in gear; he had failed to put blocks in front of the vehicle's wheels; and, most importantly, Bishop had instructed the customer to put the car into motion. Thus, Bishop's wrongful conduct, characterized as "active," was primarily in giving a verbal direction to another person and also in failing to take certain safety precautions.

In addition to the difficulties inherent in the active-passive concept, the decisional law also seems unclear as to whether all "passive" tortfeasors may recover over or whether only some may. Under one view of the cases, until the opinion in Reynolds v. Illinois Bell Telephone Co., 51 Ill.App.2d 334, 201 N.E.2d 322 (1964), Illinois courts allowed recovery only where the indemnitee's liability had been derived from the indemnitor and the parties had had some legal relationship prior to the occurrence of the liability-creating incident. However, in Reynolds, despite the absence of a preexisting legal relationship between the parties, the court held that the third-party complaint stated a cause of action for indemnity and that the third-party plaintiff was entitled to a trial on the merits to determine the nature of the respective parties' negligence. A 1967 decision, Sargent v. Interstate Bakeries, Inc., 86 Ill.App.2d 187, 229 N.E.2d 769 (1967), discussed and reaffirmed Reynolds. And then, in 1968, the Illinois Supreme Court spoke to the issue, Muhlbauer v. Kruzel, 39 Ill.2d 226, 234 N.E. 2d 790 (1968). The parties, however, are not in agreement as to the impact of that case on the case before us.

The Hospital and Thonney read Muhlbauer as rejecting the Reynolds-Sargent liberalized view of implied indemnity. The third-party defendants urge that the Illinois Supreme Court in Muhlbauer emphasized and narrowed the "pre-existing relationship" requirement. Under their interpretation, Illinois has, in effect, retreated to the position that only those "passive" tortfeasors who incurred liability because of duties and relationships created by, for example, the respondeat superior doctrine or the Illinois Structural Work Act may successfully sue under the implied indemnity theory. Their primary criticism of Great Lakes's complaint and their primary argument for our affirming the district court's dismissal is that Great Lakes failed to allege such a pre-existing relationship.

We think that the third-party defendants read too much into Muhlbauer. In that case, the original plaintiff sued Kruzel, the operator of a food market, alleging, inter alia, that Kruzel had arranged for a clown to stand along the sidewalk in front of the defendant's store for the purpose of promoting Kruzel's business. Plaintiff further charged Kruzel with acts of negligence in the arrangement; allegedly as a result of such negligent acts, plaintiff was knocked down and injured. Kruzel denied that he had hired or...