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 |
Meyer & Matthias, Chicago, Donald W. Ford, Chicago, of counsel, for third party defendant-appellee.
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:
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 Mrs. Miller states that the parking of a vehicle in violation of a statute or ordinance is an act of negligence. The cases she cites in support of this assertion establish that after a trial on the merits a jury might find the defendants guilty as charged in the original complaint. These cases do not establish that prior to a trial on the merits the court must find Mrs. Miller not liable to the defendants in the original complaint. We agree with appellants that under Sec. 25(2) of the Civil Practice Act, Ill.Rev.Stat.1963, c. 110, § 25(2) the third party complaints should not have been dismissed without a trial on the merits. In Blaszak v. Union Tank Car Co., 37 Ill.App.2d 12, 184 N.E.2d 808, the court noted that it did not have to appear with certainty that there will be a recovery over against the third party defendant and that the pleadings indicated Union might have a right to recover over against Shell in the amount it might be required to pay plaintiff. In Blaszak the complaint alleged that the third party plaintiffs' negligence was passive or secondary while that of the third party defendant was active or primary and the court held the complaint sufficient. We think...
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