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Muhlbauer v. Kruzel

DECEMBER 20, 1966.

ALFRED A. MUHLBAUER, PLAINTIFF,

v.

J.M. KRUZEL, INDIVIDUALLY AND D/B/A J.M. KRUZEL CERTIFIED FOOD MART, DEFENDANT. J.M. KRUZEL, INDIVIDUALLY AND D/B/A J.M. KRUZEL CERTIFIED FOOD MART, THIRD-PARTY PLAINTIFF, APPELLANT,

v.

WILSON AND COMPANY, INC., A FOREIGN CORPORATION, THIRD-PARTY DEFENDANT, APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. BEN SCHWARTZ, Judge, presiding. Order dismissing third party complaint affirmed.

MR. PRESIDING JUSTICE BRYANT DELIVERED THE OPINION OF THE COURT.

This is an appeal from an order of the Circuit Court of Cook County dismissing the amended third-party complaint of appellant, J.M. Kruzel, doing business as J.M. Kruzel Certified Food Mart against third-party defendant-appellee Wilson and Company, Inc.

Briefly, the facts of this case are as follows: On September 25, 1964, the plaintiff, Alfred A. Muhlbauer, filed a complaint alleging that the appellant Kruzel owned and operated a retail grocery at 613 W. 31st Street in the City of Chicago; that on or about September 29, 1962, the appellant had hired, caused or permitted a clown (a giant of about eight feet in height) to distribute autographed photographs to the public while standing on the public sidewalk in front of appellant's store for the purpose of promoting business; and that the plaintiff was injured while on the sidewalk and exercising due care in the ensuing large crowd which gathered to see the giant. Plaintiff further alleged in his complaint that the appellant was guilty of one or more of the following negligent acts or omissions:

"a. Carelessly and negligently hired, caused or permitted such person to dress as a clown and distribute autographed photographs to the public on said public sidewalk.

"b. Carelessly and negligently caused a crowd to gather on said public sidewalk which prevented the public from standing and/or walking freely, safely and unobstructed thereon.

"c. Carelessly and negligently failed to maintain proper supervision over and/or peace and order among the crowd which gathered on said public sidewalk.

"d. Carelessly and negligently failed to provide reasonable precautions for the personal safety of the public standing and/or walking upon and along said public sidewalk.

"e. Carelessly and negligently failed to maintain an area on said public sidewalk for the public to stand and/or walk upon and along freely, safely and unobstructed.

"f. Carelessly and negligently failed to give any warning to the public standing and/or walking upon and along said public sidewalk of the immediate danger and threat to their personal safety."

In his answer appellant admitted only that he owned the store and that the clown was in front of the store distributing photographs. Appellant denied that he hired or caused the clown to appear and distribute photographs or that he had caused anything to be done for the purpose of promoting the business of retail grocery and food mart.

On March 29, 1965, appellant filed an amended third-party complaint against appellee, Wilson and Company, incorporating the complaint and answer and alleging that if the appellant performed any of the acts alleged in the complaint which were denied said acts were passive acts only and not active. Appellant further alleged that, "The third-party defendant (appellee here), Wilson and Company, Inc., a foreign corporation, did cause and had an agent, employee or servant, who was a giant of considerable height and dressed in a costume simulating a giant known a `Corn King Giant' who was at said time and place standing in front of the premises occupied by the third-party plaintiff, and because of his unusual size and attire did cause a considerable crowd to gather in front of the premises occupied by the third party plaintiff that the third-party defendant was at said time and place in the process of promoting a product manufactured and distributed by the third-party defendant, and whose presence at said location was not at the request and invitation of the third-party plaintiff"; that the appellee was guilty of one or more of the six acts enumerated in the complaint; that if any injuries occurred they were caused by the active wrongful acts of the appellee, Wilson and Company; and that if the appellant were to be found liable the appellee owes appellant Kruzel indemnification for any amount which appellant may owe to the plaintiff, Alfred A. Muhlbauer.

Wilson and Company, the third-party defendant-appellee, moved to strike the amended third-party complaint which was granted by the trial court and which is the subject of this appeal.

Third-party practice is a relatively recent development in Illinois practice. The Illinois statute, c 110, § 25(2), Ill Rev Stats (1965), provides in part as follows:

"Within the time for filing his answer or thereafter by leave of court, 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 or part of the plaintiff's claim against him. . . . Nothing herein applies to liability insurers or creates any substantive right to contribution ...


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