APPEAL from the Circuit Court of Peoria County; the Hon.
EDWARD E. HAUGENS, Judge, presiding.
MR. PRESIDING JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 13, 1976.
This action was brought in the name of Hitchcock Air Conditioning & Piping Company (plaintiff-appellee), the consignee of a steam generator which was damaged on August 9, 1972, by striking a highway overpass while being transported by Machinery Transports. Defendant Henry Hazen, d/b/a H & M Enterprises and d/b/a Escort Service (defendant-appellant and hereinafter referred to as Escort Service), was employed as escort for the move of the generator by the carrier, Machinery Transports.
Plaintiff entered into a loan receipt agreement whereby the carrier Machinery Transports and its cargo insurer, Kansas City Fire & Marine Insurance Co., took plaintiff's assignment of its claim for damage to the steam generator (except its claim for $363.24 consequential damages) in consideration of the payment of $50,100. Machinery Transports issued a check payable to the order of plaintiff in the amount of $5,000. The cargo insurer issued a check drawn to the order of plaintiff and endorsed by Machinery Transports in the amount of $45,100. The checks were endorsed and deposited to the account of plaintiff on December 18, 1972.
The crux of the legal dispute involved in this appeal concerns the discharge and loan receipt endorsement on the $45,100 check issued by the cargo insurer.
Defendant Escort Service asserted the carrier's primary liability as an equitable defense and plaintiff's alleged discharge of a joint tort feasor, Machinery Transports, as an affirmative defense. Hitchcock made motions for summary judgments as to each defense. Its motions were granted by Judge Albert Pucci on March 21, 1975. and on June 20, 1975. The case was set for trial on July 25, 1975. On July 22, 1975, Judge Edward E. Haugens, who was assigned to the final pretrial conference on the case, certified two legal questions pursuant to Supreme Court Rule 308. This appeal is pursuant to Supreme Court Rule 308 which allows interlocutory appeals where the trial court finds the order involves a question of law as to which there is substantial ground for a difference of opinion and an immediate appeal from the order may materially advance the ultimate termination of the litigation (Ill. Rev. Stat. 1975, ch. 110A, par. 308).
The two questions certified by the trial court are: "Where a steam generator [boiler] was damaged by striking a highway overpass while being transported by a truck carrier in interstate commerce as an oversized load pursuant to a permit issued by the Illinois Department of Transportation, and the consignee of the steam generator has presented a loss and damage claim to the carrier in the amount of FIFTY THOUSAND FOUR HUNDRED SIXTY-THREE DOLLARS AND TWENTY-FOUR CENTS ($50,463.24):
(1) May the carrier and its cargo insurer in consideration of the payment of FIFTY THOUSAND ONE HUNDRED DOLLARS ($50,100.00) take the consignee's assignment of its claims for damage to the steam generator (except the consignee's claim for THREE HUNDRED SIXTY-THREE DOLLARS AND TWENTY-FOUR CENTS ($363.24) consequential damage) and bring suit in the consignee's name against a third party so as to avoid the issue of the carrier's own negligence, giving consideration to the public policy expressed in the Illinois rule against contribution between tort-feasors, the regulations of the Illinois Department of Transportation, and the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C.A., Sec. 20, Paragraphs (11) and (12)?
(2) If this action may be maintained in the consignee's name by the carrier and its cargo insurer, is it a defense to the action, where FORTY-FIVE THOUSAND ONE HUNDRED DOLLARS ($45,100.00) of said payment of FIFTY THOUSAND ONE HUNDRED DOLLARS ($50,100.00) was by check of the insurer, that by endorsement of the cargo insurer's check the consignee was required to execute the following:
All payees to whom this check is made payable must execute the following discharge
All claims and demands whatsoever against the Company named in the check connected with the within mentioned loss as herein stated are released and discharged.
By endorsement the payee acknowledges the receipt of the amount of this draft as a loan repayable only out of any net recovery made from another insurer or from any vessel, carrier, bailee, tort feasor, or others; and as security for said repayment the payee ...