Reynolds v. Illinois Bell Tel. Co.

• Decision Date: 24 March 1964
• Docket Number: Gen. No. 49145
• Citation: 201 N.E.2d 322,51 Ill.App.2d 334
• Parties: Don REYNOLDS, a minor, by Don Reynolds, Sr., his father and next friend, Plaintiffs, v. ILLINOIS BELL TELEPHONE COMPANY, a corporation David Harms and William Roper, Defendants-Third-Party Plaintiffs-Appellants, v. Eleanor MILLER, Third-Party Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 322

201 N.E.2d 322

51 Ill.App.2d 334

Don REYNOLDS, a minor, by Don Reynolds, Sr., his father and next friend, Plaintiffs, v. ILLINOIS BELL TELEPHONE COMPANY, a corporation David Harms and William Roper, Defendants-Third-Party Plaintiffs-Appellants, v. Eleanor MILLER, Third-Party Defendant-Appellee.

Gen. No. 49145.

Appellate Court of Illinois, First District, Second Division.

March 24, 1964.

On Rehearing Sept. 28, 1964.

Sidley, Austin, Burgess & Smith, Robert A. Downing, Chicago, James W. Kissel, Frederic F. Brace, Jr., Chicago, of counsel, for defendants-third party plaintiffs.

Meyer & Matthias, Chicago, Donald W. Ford, Chicago, of counsel, for third party defendant-appellee.

BURKE, Presiding Justice.

Don Reynolds, a minor, sued Illinois Bell Telephone Company and two of its employees, to recover damages for personal injuries, alleging a duty of ordinary care, seven specific negligent acts or omissions and concluding with a paragraph charging that defendants 'otherwise carelessly and negligently, or wilfully and wantonly' parked their motor vehicle. Defendants filed a third party complaint against Eleanor Miller, who had actually run into plaintiff but who had settled with him under a covenant not to sue. The court sustained the motion of Eleanor Miller to dismiss her complaint and the defendants appeal from the judgment entered thereon.

The complaint alleges and the answers admit that on May 26, 1958, Eleanor Miller drove through a crosswalk and struck the plaintiff, a minor pedestrain, who was lawfully in the crosswalk. The complaint alleges and the answers deny that the collision was due to the defendants' negligence in permitting their truck to be parked near the crosswalk. The answers allege that the collision was caused by the negligence of Eleanor Miller in driving through the crosswalk and that plaintiff had settled with Mrs. Miller for $6,000 in exchange for a covenant not to sue. Plaintiff's reply admits the making and delivery of the covenant not to sue. The second amended third party complaints, hereinafter called the complaints, allege that Eleanor Miller was guilty of active and primary negligence because she was speeding and did not keep a proper lookout or keep her car under proper control and also because she failed to slow down for or yield the right of way to a pedestrian or give warning. The complaints also allege that defendants' truck had been parked for at least two hours at the time of the collission and that defendants' negligence, if any, was passive and secondary to Eleanor Miller's active and primary negligence in driving too fast and not slowing for a pedestrian. The third party complaints also charge that Eleanor Miller was guilty of wanton and wilful misconduct. Mrs. Miller's motion to dismiss admitted the allegations of the third party complaints.

We are of the opinion that the third party complaints state a cause of action for indemnity. The law of this State recognizes that a party who is only secondarily responsible for the plaintiff's injuries has a right to recover indemnity over against the person primarily responsible. In the case of Griffiths & Son v. National Fireproofing Co., 310 Ill. 331, p. 339, 141 N.E. 739, p. 742, 38 A.L.R. 559, the Supreme Court said: 'The general rule is that, where two parties acting together commit an illegal or wrongful act the party injured may hold both responsible for the damages resulting from their joint act and neither can recover from the other the damages he may have paid or any part of them. The further general principle is announced, however, in many cases, that where one does the act which produces the injury, and the other does not join in the act, but is thereby exposed to liability and suffers damage, the latter may recover against the principal delinquent, and the law will inquire into the real delinquency, and place the ultimate liability upon him whose fault was the primary cause of the injury.'

In the Griffiths case a contract of Indemnity was involved. In Sack v. Arcole Midwest Corp., 33 Ill.App.2d 344, 179 N.E.2d 441, where of the three negligent parties granted indemnity only one had a contract with the third party defendant. We adopt the statement by the Supreme Court in the Griffiths case that indemnity may be obtained on tort principles and that a contract is not required. Although dictum the statement in the Griffiths case has been followed. In Gulf M. & O. R. Co. v. Arthur Dixon Transfer Co. 343 Ill.App. 148, 98 N.E.2d 783, the court placed no reliance on the contract, but decided the case under tort principles. See also Blaszak v. Union Tank Car Co., 37 Ill.App.2d 12, 184 N.E.2d 808; Boston v. Old Orchard Business District, Inc., 26 Ill.App.2d 324, 327, 168 N.E.2d 52; American Tel. & Tel. Co. v. Leveque, 30 Ill.App.2d 120, 129, 173 N.E.2d 737; Dart Transit Co., Inc. v. Wiggins, 1 Ill.App.2d 126, 134, 117 N.E.2d 314; Chicago Railways Co. v. R. F. Conway Co., 219 Ill.App. 220, 223; Pennsylvania Co. v. Roberts & Schaefer Co., 250 Ill.App. 330, 335; Palmer House Co. v. Otto, 347 Ill.App. 198, 201-202, 106 N.E.2d 753; Moroni v. Intrusion-Prepakt, Inc., 24 Ill.App.2d 534, 538, 165 N.E.2d 346.

Mrs. Miller states that the parking of a vehicle in...