Appeal from the Circuit Court of Cook County; the Hon. THOMAS
E. KLUCZYNSKI, Judge, presiding. Order reversed.
MR. PRESIDING JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.
Rehearing denied September 13, 1962.
Plaintiff, Casimir Blaszak, brought suit against defendant, Union Tank Car Company, for personal injuries. Union filed a third party complaint for indemnity against plaintiff's employer, Shell Oil Company, third party-defendant. The trial court dismissed the third party complaint on Shell's motion and Union appeals.
On July 1, 1952, Union and Shell entered into a "Car Service Agreement" whereby Shell leased an unspecified number of railroad tank cars from Union. On July 20, 1957, plaintiff, an employee of Shell, was injured while working on the unloading of a car covered by the agreement. The car contained paraffin wax which has to be melted prior to its unloading. The tank car was equipped with steam pipes and tubes by which heat was applied. As plaintiff was working on the car the lid, on top of said tank car, was forcibly thrown or blown from the car, striking plaintiff in the head and face.
Plaintiff filed suit against Union charging it with negligence in leasing the car to Shell in an unclean condition which caused unnecessary pressure to accumulate within the car with the result that the car's lid was blown off. Plaintiff's complaint further charged Union with negligence and with a breach of warranty to plaintiff's employer in failing to provide the car with proper safety devices, which would either have allowed the excess air pressure to escape, or warned the plaintiff of the presence of undue air pressure.
Pursuant to section 25(2) of the Civil Practice Act, Union filed a third party complaint against Shell to recover over from Shell any amount Union may be required to pay plaintiff. Count I of the third party complaint asserts that, under the "Car Service Agreement," Shell had the duty to clean the car and know that it was in proper condition for shipment, and if plaintiff suffered any damages as a result of the unclean and defective condition of the car, Shell would be obliged to reimburse Union for any amount Union would be required to pay plaintiff. Count II of the complaint asserts, that any injuries plaintiff may have received were the result of Shell's negligence while Union was innocent of any fault, negligence or wrongdoing. Count III asserts, that if Union were guilty of negligence, it was secondary or passive negligence, while Shell was the primary or active tort feasor.
Shell moved to dismiss the third party complaint on the following grounds: (1) neither the complaint nor the third party complaint alleges any fact or act of negligence on the part of Shell upon which liability could be predicated; (2) Union is charged with active negligence which precludes indemnity or contribution; (3) the "Car Service Agreement" does not contain an unqualified promise to indemnify Union for losses; and (4) Union can be liable to plaintiff only as an active tort feasor, and as a matter of law cannot seek indemnity or contribution. The motion to dismiss was granted and this appeal followed.
The "Car Service Agreement" which Union attached to its complaint, provides in part, as follows:
4. Any cleaning of cars that may be necessary to prepare them for shipment of commodities by or for the lessee shall be done at its expense and responsibility.
5. The lessee's tracks shall be considered home tracks for any part of the lessor's equipment, and the lessor shall have the use thereof, without charge, provided such use is not in any way detrimental to the lessee's operations. The lessee agrees to perform, and/or assume the expense of all switching within or about its plant. . . .
6. Any car covered by this lease shall, prior to the time of its being placed or ordered placed for loading, and after the time it is made empty, be subject to the orders of the lessor, and the lessee agrees to carry out the instructions of the lessor as to the movement of any such empty car. . . .
9. The lessee shall be responsible for loss of any car covered by this lease or parts thereof and for damages thereto except such loss or damage occurring while the cars are in the possession of railroad transportation companies or while on the shop or storage tracks of the lessor.
10. The lessor shall not be liable for any loss or damage to the commodities loaded in its cars.
It is the duty of the lessee, under the conditions of this lease, to know that the cars of the lessor are in proper condition for loading and shipment. . . .
Section 25(2) of the Civil Practice Act provides that ". . . a defendant may by third party complaint bring in as a defendant a person not a party to the action who is or may be liable to him for all ...