Appeal from the Superior Court of Cook county; the Hon. THOMAS
E. KLUCZYNSKI, Judge, presiding. Judgment reversed and cause
remanded with directions.
JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT.
This is an appeal from an order dismissing a counterclaim (or third party complaint). Plaintiff brought this suit against Intrusion-Prepakt, Incorporated (hereinafter called Intrusion) and Gulf, Mobile & Ohio Railroad Company (hereinafter called G.M. & O.). The complaint is in two counts. In Count I, plaintiff sought to recover against Intrusion, as employer, under the Scaffold Act for injuries sustained when he fell from a scaffold used in the course of construction work on the property of G.M. & O. In Count II, he sought to recover under the same act against G.M. & O., as the owner of the property at which the scaffold was being used. G.M. & O. filed an answer and counterclaim against Intrusion, based on the ground that Intrusion had contracted to do the construction work and pursuant thereto had erected and maintained the scaffold, and therefore G.M. & O. was entitled to judgment for any sum plaintiff might be awarded against it. Intrusion filed a motion to dismiss the plaintiff's complaint on the ground that the Workmen's Compensation Act precluded plaintiff's recovery against Intrusion. It also filed a motion to dismiss the counterclaim of G.M. & O. Both motions were allowed. Plaintiff's claim against Intrusion was dismissed and G.M. & O.'s counterclaim against Intrusion was likewise dismissed. A proper order being entered, G.M. & O. thereupon took this appeal.
The rule against indemnity between tort-feasors does not apply between parties, one of whom is the active and primary wrongdoer and the other bears a passive relationship to the cause of the injury. John Griffiths & Son Co. v. National Fireproofing Co., 310 Ill. 331, 141 N.E. 739 (1923); Gulf, M. & O.R. Co. v. Arthur Dixon Transfer Co., 343 Ill. App. 148, 98 N.E.2d 783 (1951); Dart Transit Co., Inc. v. Wiggins, 1 Ill. App.2d 126, 117 N.E.2d 314 (1953); Palmer House Co. v. Otto, 347 Ill. App. 198, 106 N.E.2d 753 (1952); Blair v. Cleveland Twist Drill Co., 197 F.2d 842 (7th Cir. 1952); Pennsylvania Co. v. Roberts & Schaefer Co., 244 Ill. App. 646 (memorandum decision), 250 Ill. App. 330 (1928); Chicago Rys. Co. v. R.F. Conway Co., 219 Ill. App. 220 (1920). From the foregoing authorities we think the principle stated is now the well settled law of this state. It was thus stated in John Griffiths & Son Co. v. National Fireproofing Co., supra, p. 339:
"The . . . 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 principle 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," citing Lowell v. Boston and Lowell Railroad Corp., 23 Pick. 24; Gray v. Boston Gaslight Co., 114 Mass. 149; Washington Gaslight Co. v. District of Columbia, 161 U.S. 316; Union Stock Yards Co. v. Chicago, Burlington and Quincy Railroad Co., 196 U.S. 222.
For a review of the decisions and the history of the principle, we refer to the opinion rendered by this court in Gulf, M. & O.R. Co. v. Arthur Dixon Transfer Co., supra.
The principle of no contribution and no indemnity between all joint tort-feasors is more a rule of ethics than a principle of law. The law simply closed its door to the inter se disputes of those whom it considered to be bad men. This originated at a time when torts were in the main such wrongs as slander, libel, and assault and battery. Today, torts are mainly the incidents of industry and transportation. To continue to apply the rule to such cases as that before us would make the law no jealous mistress, but a squeamish damsel, refusing to have anything to do with a couple of respectable suitors because her grandfather once told her they were joint tort-feasors.
But, it is argued by Intrusion, the duty incumbent on defendants in the instant case is derived from the statute and is the same as to each. It is true that the duty of both is derived from the statute, but the duty of each is independent of the duty of the other. The liability stems from the act, but the duties as between G.M. & O. and Intrusion are not the same. When G.M. & O. made its contract for the work, Intrusion became the one primarily charged with the duty of looking after the scaffold. G.M. & O. might not escape statutory liability under the Scaffolding Act, Ill. Rev. Stat., ch. 48, sec. 60 (1959), as interpreted in Kennerly v. Shell Oil Co., 13 Ill.2d 431, 150 N.E.2d 134 (1958), but nothing in the act requires it to waive the right to hold the contractor liable under the general principle set forth in the Griffiths and Gulf, M. & O.R. Co. v. Dixon cases, supra.
Much reliance is placed by Intrusion on the case of Bohannon v. Joseph T. Ryerson & Son, Inc., 16 Ill. App.2d 402, 148 N.E.2d 602 (1958). That case is distinguishable because there the court held that both the counterclaimant and the counterdefendant were active joint tort-feasors. If it were not so distinguishable, it would run into direct conflict with the Griffiths and Gulf, M. & O.R. Co. v. Dixon cases, supra, and other cases before cited.
G.M. & O. also contends that in addition to the basis of recovery hereinbefore discussed, there was an implied obligation by Intrusion to perform its contract in a reasonably safe manner, and that it has breached this implied obligation. Such an implied obligation has been recognized in Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 350 U.S. 124 (1956); Weyerhaeuser S.S. Co. v. Nacirema Operating Co., 355 U.S. 563 (1958); Crumady v. The Joachim Hendrick Fisser, 358 U.S. 423 (1959); Merriweather v. Boland & Cornelius, 6 N.Y.2d 417, 160 N.E.2d 717 (1959); McDonnell Aircraft Corp. v. Hartman-Hanks-Walsh Painting Co., 323 S.W.2d 788 (Mo. 1959).
In each of the cases before cited there was recognized an implied obligation to perform the work with reasonable care, the breach of which enabled the counterclaimant to recover upon the theory of indemnity. Actions for indemnity, in the absence of express contractual indemnification obligations, have also been recognized in Illinois, although the decisions do not spell out the implied obligation to perform work in a reasonably careful manner with the same particularity as in the cases before cited. See Gulf, M. & O.R. Co. v. Arthur Dixon Transfer Co., 343 Ill. App. 148, 98 N.E.2d 783 (1951); Pennsylvania Co. v. Roberts & Schaefer Co., 244 Ill. App. 646 (1927) (memorandum decision), 250 Ill. App. 330 (1928); Chicago Rys. Co. v. R.F. Conway Co., 219 Ill. App. 220 (1920).
Intrusion maintains that the pleadings fail to set up a cause of action under the theory of implied indemnity because the contract was not set forth in the pleadings. Well pleaded facts must, for the purpose of testing the sufficiency of pleadings, be accepted as true. Cook-Master, Inc. v. Nicro Steel Products, Inc., 339 Ill. App. 519, 90 N.E.2d 657 (1950). G.M. & O.'s counterclaim alleged the existence of a contract for construction under which Intrusion agreed to perform the work, which included the use of scaffolds. It was not necessary to set forth the contract in haec verba, nor to attach it as an exhibit. It is not upon the actual terms of the contract that G.M. & O. must succeed, but under a term that must be implied merely from its existence; namely, that when work is contracted to be performed, it must be performed with reasonable care. The court should have considered therefore that a contract did exist under this state of the pleadings, requiring Intrusion to perform the work with reasonable care.
Intrusion argues next that nothing in the counterclaim suggests an indemnification agreement between the parties. Section 38(3) of our Civil Practice Act provides that counterclaims must be pleaded in the same manner and with the same particularly as a complaint. Ill. Rev. Stat., ch. 110, sec. 38(3) (1959). Section 42(2) of that act states the rule that no pleading is bad in substance which contains information reasonably informing the other party of the nature of the claim. Courts are to construe pleadings liberally with a view to doing substantial justice between the parties, under section 33(3) of the act. In deciding whether facts have been sufficiently stated to allege a cause of action, courts look to the plain and fair intendment of plaintiff's or counterclaimant's language and will consider facts which may reasonably be implied from such language. Annerino v. Dell Publishing Co., 17 Ill. App.2d 205, 149 N.E.2d 761 (1958).
The counterclaim sets forth the facts of the principal-contractor relationship between G.M. & O. and Intrusion. It alleges that Intrusion erected, maintained and used a scaffold in connection with its work; that it was Intrusion's duty to provide Moroni with a safe place to work and adequate scaffolding; that it breached this duty, resulting in Moroni's injury; that Intrusion is liable to G.M. & O. for any sum which the latter may have to pay Moroni, who has sued G.M. & O. for damages resulting from his injury. Nowhere is the word "indemnity" used, but it is clear that G.M. & O. seeks to be made whole on any judgment recovered by Moroni because of Intrusion's failure to provide Moroni with adequate scaffolding and a safe place to work.
Intrusion contends that the counterclaim makes no allegation of negligence on its part upon which it could be found liable for indemnity under any theory. No explicit charge of negligence need be made, but it is sufficient if the facts stated are such as to raise a duty and show failure to perform. Miller v. S.S. Kresge Co., 306 Ill. 104, 137 N.E. 385 (1922); Petersen v. City of Gibson, 322 Ill. App. 97, 54 N.E.2d 79 (1944); North West Cab Co. for Use of ...