Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Mcdonald v. Trampf

APRIL 28, 1964.

MICHAEL MCDONALD, PLAINTIFF-APPELLEE,

v.

ALVIN TRAMPF, ET AL., DEFENDANTS-APPELLEES. MICHIGAN MUTUAL LIABILITY COMPANY, GARNISHEE AND THIRD-PARTY PLAINTIFF-APPELLANT,

v.

JOHN SKOVANEK AND LINCOLN CAS. CO., ORLEY C. HOPPER AND HIGHWAY INS. CO., AND MICHAEL MCDONALD, THIRD-PARTY DEFENDANTS-APPELLEES.



Appeal from the Superior Court of Cook County; the Hon. DONALD S. McKINLAY, Judge, presiding. Orders affirmed.

MR. JUSTICE FRIEND DELIVERED THE OPINION OF THE COURT:

Michael McDonald, plaintiff, was injured on November 28, 1954, as the result of a collision of his car with a car driven by Alvin Trampf. In Count I, of his complaint, McDonald sued Trampf, and in Count II he named John Skovanek and Orley C. Hopper as co-defendants under the Dram Shop Act for having caused the intoxication of Trampf. The jury returned a verdict for McDonald and against Trampf, Skovanek and Hopper and assessed the damages at $18,000. Execution issued against Trampf in the amount of $18,000 plus $48.80 for costs and charges. The execution was personally served on Trampf and returned by the Sheriff showing no part satisfied. Garnishment proceedings were then instituted against Trampf's insurer, Michigan Mutual Liability Company on May 17, 1962.

Michigan Mutual filed a third-party complaint on June 12, 1962, wherein it identified itself as the insurance carrier of Trampf to the extent of $20,000 and named as third-party defendants John Skovanek and Lincoln Casualty Company, his insurance carrier, to the extent of $15,000, and Orley C. Hopper and Highway Insurance Company, his insurance carrier, to the extent of $15,000. The third-party complaint conceded liability for only one-third of the judgment and asked that the third-party defendants pay the balance of $12,000.

On June 21, 1962, the court rendered judgment for $6,000 against Michigan Mutual on its answer, and it was paid. On September 19, 1962, judgment was entered in favor of Michael McDonald, judgment creditor (plaintiff-appellee), and against Michigan Mutual Liability Company, garnishee-defendant (appellant) in the amount of $12,250. On September 21, 1962, judgment was entered in favor of John Skovanek, Lincoln Casualty Company, Orley C. Hopper and Highway Insurance Company, third-party defendants (appellees) and against Michigan Mutual Liability Company, third-party plaintiff (appellant), dismissing the third-party complaint on motion of the third-party defendants. The September 19th and September 21st judgments are the basis of this appeal.

The third-party defendants contend that the judgment of the trial court dismissing the third-party complaint was correct because (a) the third-party complaint in this case is specifically barred by the statute which creates the third-party remedy; (b) the garnishment proceedings do not permit third-party practice of the kind sought by the third-party plaintiff in this case; and (c) the third-party plaintiff, who is the subrogee of a tort-feasor, cannot obtain contribution from the other joint tort-feasors.

The statute which creates the third-party remedy is sec 25, chap 110 (Ill. Rev Stats 1961). The last sentence in paragraph 2 states:

"Nothing herein applies to liability insurers or creates any substantive right to contribution among tortfeasors or against any insurer or other person which has not heretofore existed."

The third-party defendants contend that this sentence precludes the plaintiff, a liability insurer, from initiating a third-party proceeding in order to secure contribution. Such a construction, they say, would be contrary to good sense and to cases interpreting sec 25. Paragraph 2 of section 25 was designed to allay any fears that the substantive law of contribution was sought to be changed or that the question of liability insurance could be injected into an action. The recent case of Coffey v. ABC Liquor Stores, Inc., 13 Ill. App.2d 510, 142 N.E.2d 705 (1957), makes this clear. In that case the complaint charged the tavern owners with selling liquor to and causing the intoxication of an individual who injured the complainants. The tavern owners in turn, filed a third-party complaint pursuant to sec 25 against the individual who injured the complainants. Although the Appellate Court sustained a dismissal of the third-party complaint, it was on the theory as to the nature of a tavern owner's liability under the Dram Shop Act, and not on the ground that this section precludes the filing of a third-party proceeding for the purpose of securing contribution. Blaszak v. Union Tank Car Co., 37 Ill. App.2d 12, 184 N.E.2d 808 (1962) and Holcomb v. Flavin, 37 Ill. App.2d 359, 362, 185 N.E.2d 716 (1962), also support this position.

The third-party defendants' second contention is that the Garnishment Act does not permit third-party proceedings. According to the third-party defendants, the deductions, set-offs and other rights that the garnishee is entitled to assert in a garnishment matter are specifically provided for by the Garnishment Act (Ill. Rev Stats 1961, c 62) and these do not include the right to file third-party proceedings under sec 25, chap 110 (Ill. Rev Stats 1961). In addition, the third-party defendants point out that garnishment proceedings are excluded from operation of the Civil Practice Act by sec 1, chap 110 (Ill. Rev Stats 1961).

These objections are not well taken. Section 1, chap 110 (Ill. Rev Stats 1961), provides that:

"In all those proceedings (including garnishment) the separate statutes control to the extent to which they regulate procedure, but this Act applies as to matters of procedure not so regulated by separate statutes."

The Garnishment Act makes it clear that the Civil Practice Act applies "except as otherwise expressly provided." Paragraph (b), sec 43, chap 62 (Ill. Rev Stats 1961) reads as follows:

"The provisions of the Civil Practice Act, and all existing and future amendments thereto and the rules adopted pursuant thereto, shall apply to proceedings under this Act except as otherwise expressly provided."

By this paragraph, third-party proceedings under sec 25, chap 110 (Ill. Rev Stats 1961) can be used in a garnishment action unless it can be shown that the Garnishment Act expressly provides otherwise. The Garnishment Act nowhere excludes the filing of a third-party complaint in a garnishment proceeding, nor is any provision of that Act repugnant to the nature of a third-party proceeding. The Civil Practice Act, and specifically the right to file a third-party complaint, applies to a garnishment action because it is not a matter of procedure "regulated by separate statutes." We hold that a third-party complaint may properly be filed in a garnishment proceeding.

The remaining contention of the third-party defendants is that the driver of a car who causes an accident and is required to satisfy a judgment which arises out of the accident, cannot get contribution from two tavern operators who caused the intoxication of the driver or from the operators' insurers. On the basis of Economy Auto Ins. Co. v. Brown, 334 Ill. App. 579, 79 N.E.2d 854 (1948), this contention must be sustained. Except for a ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.