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Kabak v. Thor Power Tool Co.

FEBRUARY 17, 1969.

ANDRZEJ KABAK, PLAINTIFF,

v.

THOR POWER TOOL CO., A CORPORATION, DEFENDANT, THIRD-PARTY PLAINTIFF, APPELLANT,

v.

BARTLETT-SNOW-PACIFIC, INC., A FOREIGN CORPORATION, THIRD-PARTY DEFENDANT, APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. ALBERT HALLETT, Judge, presiding. Affirmed.

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.

This is a personal injury action filed in Illinois for injuries sustained in Ohio, when an emery wheel shattered as plaintiff operated a portable grinding machine belonging to his employer, Bartlett-Snow-Pacific, Inc., of Cleveland, Ohio.

Defendant, Thor Power Tool Co., which manufactured the machine in Illinois and "directly or indirectly" sold it to plaintiff's employer, filed an answer denying the material allegations of plaintiff's complaint. Thor also filed a third-party complaint against "Bartlett," alleging that "Thor's" negligence, if any, was passive, and charging third-party defendant (Bartlett) with active negligence and ultimate responsibility for plaintiff's injuries. The third-party complaint was dismissed on third-party defendant's motion, based on three grounds. Third-party plaintiff (Thor) appeals.

On appeal the determinative question is whether Bartlett, the third-party defendant, which had complied with the Ohio Workmen's Compensation Act, was relieved of further liability. No evidence was taken in the trial court, and the questions presented are based upon the pleadings, and exhibits filed by the third-party defendant (Bartlett).

The Ohio Code, article II, section 35, authorizes the creation of a State Workmen's Compensation fund and provides, with respect thereto:

"Such compensation shall be in lieu of all other rights to compensation, or damages, for such death, injuries, or occupational disease, and any employer who pays the premium or compensation provided by law, passed in accordance herewith, shall not be liable to respond in damages at common law or by statute for such death, injuries, or occupational disease. . . ."

The Ohio Code, section 4123.74 provides, with reference to compensation benefits paid injured employees:

"Employers who comply with Section 4123.35 of the Revised Code shall not be liable to respond in damages at common law or by statute for any injury, or occupational disease, or bodily condition, received or contracted by any employee in the course of or arising out of his employment, or for any death resulting from such injury, occupational disease, or bodily condition . . . whether or not such injury, occupational disease, bodily condition or death is compensable under Sections 4123.01 to 4123.94, inclusive, of the Revised Code."

Bartlett, third-party defendant, asserts that the foregoing provisions have been construed as immunizing employers from actions by third parties, and that Bankers Indemnity Ins. Co. v. Cleveland Hardware & Forging Co., 77 Ohio App. 121, 62 N.E.2d 180 (1945), is directly in point. Bartlett states: "In that case, an employee was killed in the course of his employment by an explosion. His estate filed suit against an oxygen company, alleging that the explosion resulted from the negligent delivery by the oxygen company to the decedent's employer of oxygen instead of nitrogen. The suit was settled by the oxygen company's insurer which, subrogated to the rights of the oxygen company, brought suit against the employer on an active-passive negligence theory. The Court held that since the employer had complied with the Ohio Workmen's Compensation Act, it could not be held accountable to the insurance company or its insured." Also cited is Republic Steel Corp. v. Glaros, 12 Ohio App.2d 29, 230 N.E.2d 667 (1967).

Initially, we consider Thor's assertion that because the right of indemnification has been characterized and construed as a right, separate and distinct from plaintiff's rights in the prime action, Thor's right of indemnification should be determined by the law of Illinois. (Moroni v. Intrusion-Prepakt, Inc., 24 Ill. App.2d 534, 165 N.E.2d 346 (1960).) Thor states that "sound reason supports the view that the right of indemnity is independent of the tort from which it arises. It is an obligation created by the law to prevent unjust enrichment and should in the instant case be determined by the law of Illinois." We disagree. This factor is not determinative of the forum. We believe that an indemnification action, such as alleged here, must be considered in the light of the basic tort action from which it springs, and its prosecution is to be determined by the law found to be applicable to the original tort action, as discussed hereafter.

Thor next contends that "comity, the principle by which Illinois has the option of applying the lex loci delicti, does not compel such application. Clubb v. Clubb, 402 Ill. 390, 84 N.E.2d 366, 371 (1949). Indeed the rule requiring such applications has come into general disrepute. Realization of the unjust and anomalous results which often inure from application of that traditional, but mechanical, rule has prompted application of the law of the forum in situations where the interest of the forum is substantial." Cited in support is Griffith v. United Air Lines, Inc., 416 Pa 1, 203 A.2d 796, 801 (1964), where the court stated:

"This place of the injury rule, sometimes termed the lex loci delicti rule, has been the subject of severe criticism in recent years. . . .

"The basic theme running through the attacks on the place of the injury rule is that wooden application of a few overly simple rules, based on the outmoded `vested rights theory,' cannot solve the complex problems which arise in modern litigation and may often yield harsh, unnecessary and unjust results."

Thor further argues that the Ohio law contravenes basic Illinois public policy. "Thor, a resident of Illinois, conducts its manufacturing and sales operations in this state in accordance with Illinois law; nevertheless Bartlett, a resident of Ohio, seeks to use the Illinois judicial ...


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