Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. Mel R. Jiganti, Judge, presiding.
MR. JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:
Plaintiff, Rita Rae Skinner, a minor, by Virginia Skinner, her mother and next friend, filed this action in the circuit court of Cook County seeking to recover damages for personal injuries suffered as the result of the alleged malfunction of an injection molding machine manufactured by defendant, Reed-Prentice Division Package Machinery Co. (hereafter manufacturer). The manufacturer filed a third-party complaint seeking contribution from the third-party defendant, Hinckley Plastic, Inc. (hereafter employer), by whom plaintiff was employed at the time of her injuries. The circuit court allowed the employer's motion to dismiss the third-party complaint, the appellate court affirmed (40 Ill. App.3d 99), and we allowed the manufacturer's petition for leave to appeal. The pleadings are adequately reviewed in the appellate court opinion, and it suffices here to state that plaintiff seeks to recover on the basis of strict liability in tort while the third-party complaint alleges negligence on the part of the employer. The relief asked by the manufacturer in its third-party complaint is "that if judgment be entered in favor of the plaintiff and against it that judgment be entered against the third party defendant and in favor of third party plaintiff in such amount, by way of contribution, as would be commensurate with the degree of misconduct attributable to the third party defendant in causing plaintiff's injuries."
In its dismissal order the circuit court observed that in Gertz v. Campbell, 55 Ill.2d 84, this court "indicated that it might adopt the New York rule, because it stated, citing the Dole case [Dole v. Dow Chemical Co. (1972), 30 N.Y.2d 143, 282 N.E. 286, 331 N.Y.S.2d 382] `to illustrate, there can and should be a continuing search for better solutions. The Court of Appeals of New York has recently supplanted this active-passage negligence criteria from indemnitee with one founded on equitable principles.'" It concluded, however, "that there is no decision in this state allowing contribution under the facts pleaded in the third party complaint." In affirming the judgment, the appellate court concluded that "a decision to apply theories of contribution in the instant case would require substantive and procedural formulations beyond the authority of this court" and that the issue presented was "the type of issue which should be decided by the highest court of this State * * *." 40 Ill. App.3d 99, 104.
The manufacturer argues that no decision of this court prohibits contribution between tortfeasors; that where the tort was not intentionally committed, sound public policy requires that contribution between tortfeasors be permitted; that a manufacturer held liable on the basis of strict liability in tort should have a right of contribution against others who contributed to cause the injuries; and that if this court should adopt a rule of contribution, it should be based on the relative degree of fault rather than on the basis of equal apportionment among the number of wrongdoers. The employer argues that the long-established rule in this State is that there is no right of contribution among tortfeasors; that the only exception to the general rule is that a "passive" tortfeasor may obtain indemnity from an "active" tortfeasor; and that a manufacturer held strictly liable in tort cannot seek indemnity from the employer for the reason that public policy requires that the manufacturer's liability be considered "active."
This court's holdings concerning indemnity and contribution and the allocation among tortfeasors of the economic loss resulting from injuries have been much discussed by the bench and bar. (See, e.g., Study Committee Report on Indemnity, Third Party Actions and Equitable Contributions, 1976 Report of the Illinois Judicial Conference; Report of Committee on Comparative Negligence, 1964 Report of the Illinois Judicial Conference 110; Moroni v. Intrusion-Prepakt, Inc., 24 Ill. App.2d 534; Sargent v. Interstate Bakeries, Inc., 86 Ill. App.2d 187; Zaremski, Expansion of Third Party Recovery: Common Law Indemnity, Contribution, Or?, 63 Ill. B.J. 684 (1975); Kissel, Theories of Indemnity As Related to Third Party Practice, 54 Chi. B. Rec. 157 (1973); Polelle, Contribution Among Negligent Joint Tortfeasors in Illinois: A Squeamish Damsel Comes of Age, 1 Loy. Chi. L.J. 267 (1970); Feirich, Third-Party Practice, 1967 U. Ill. L.F. 236.) In its report submitted at the 1976 Judicial Conference, the Study Committee on Indemnity, Third Party Actions and Equitable Contributions presented a comprehensive review of the historic development of the law and its application to various types of litigation and concluded that the present rule "is harsh and inequitable in operation" and "has resulted in a great deal of judicial effort in expanding the concept of indemnity creatively in order to avoid the harsh result inherent in the rule." It unanimously recommended the adoption of the principle of contribution among joint tortfeasors and recommended that liability among joint tortfeasors "be apportioned on the basis of their pure relative fault."
As the court, quoting from Prosser, Torts 278 (3d ed. 1964), observed in Suvada v. White Motor Co., 32 Ill.2d 612, 624: "There is an important distinction between contribution, which distributes the loss among the tortfeasors by requiring each to pay his proportionate share, and indemnity, which shifts the entire loss from one tort feasor who has been compelled to pay it to the shoulders of another who should bear it instead." In Nelson v. Cook, 17 Ill. 443, an action by a sheriff against a judgment creditor to recover the sum he was compelled to pay for the conversion of another's property, this court, considering the distinction for the first time, said: "The principle laid down in Merryweather v. Nixan [(1799), 101 Eng. Rep. 1337], 8 Term R. 186, that there is no right of contribution as between tort-feasors, or trespassers, has been, and still is, recognized as unquestionable law. But this does not affect the right of indemnity where a right of indemnity exists." 17 Ill. 443, 449.) Based on the facts before it the court held that the sheriff had no right of implied indemnity.
Concerning Merryweather, the English authority upon which the court relied, the author of a frequently cited law review article said:
"It is singularly unfortunate, and has led to misunderstanding, that Merryweather v. Nixan should have been continually treated as stating the `general rule.' As a matter of fact that case states not the rule, but the exception. The general rule is that among persons jointly liable the law implies an assumpsit either for indemnity or contribution, and the exception is that no assumpsit, either express or implied, will be enforced among wilful tort-feasors or wrongdoers.
In considering the facts in Merryweather v. Nixan, and in applying that decision, it is important to bear in mind that the meaning of the word `tort' at the time of the decision in 1799 was limited and narrow. None of the early writers, such as Bacon, accurately defined torts, but the actions which they treat as torts are practically all actions such as batteries, slanders, etc., which were, of course, wilful or intentional wrongs. At that time the word `tort' had not come to be applied to the vast number of quasi delicts now known and classified as actions sounding in tort and arising out of mere negligence or unintentional injury. The classification of such actions as technical torts is of comparatively recent date. It is, therefore, vital to a correct understanding of the decision, that this limited meaning of the word `tort' i.e., a wilful or intentional wrong be remembered." Reath, Contribution Between Persons Jointly Charged for Negligence Merryweather v. Nixan, 12 Harv. L. Rev. 176, 177-78 (1898).
In Johnson v. Chicago & Pacific Elevator Co., 105 Ill. 462, in which it next considered contribution among tortfeasors, the court affirmed the denial of an application to be joined as a defendant made by an individual who alleged an interest in the action because he would be liable to contribute to the judgment if the defendant were held liable. The court, without citation of authority, said: "[T]here is no right of contribution between wrongdoers." 105 Ill. 462, 468.
In Farwell v. Becker, 129 Ill. 261, the court was presented for the first time, and until this case the only time, with the precise question whether there is a right of contribution among tortfeasors. In Farwell a number of creditors, by attachment, without knowledge of any wrongdoing, converted the chattels of a third person. One creditor, who was forced to pay the entire claim, was held entitled to contribution in equal shares from the other creditors. In its opinion the court reviewed Merryweather and the decisions of other State courts and concluded that the rule prohibiting contribution among tortfeasors was confined to intentional wrongdoers, or wrongdoers presumed to know that their act was unlawful. Farwell has not been cited, followed or overruled in subsequent decisions of this court.
Dean Prosser, in discussing the application by courts in this country of the rule of Merryweather v. Nixan states: "The early American cases applied the rule against contribution to cases of wilful misconduct, but refused to recognize it where the tort committed by the claimant was a matter of negligence or mistake. But once the door was thrown open to joinder in one action of those who had merely caused the same damage, the origin of the rule and the reason for it were lost to sight. The great majority of our courts proceeded to apply it generally, and refused to permit contribution even where independent, although concurrent, negligence had contributed to a single result." Prosser, Torts sec. 50, at 306 (4th ed. 1971).
In Consolidated Ice Machine Co. v. Keifer, 134 Ill. 481, the court joined "the great majority" of courts described by Dean Prosser that, while permitting joinder of alleged joint tortfeasors, continued to proscribe contribution. In Consolidated, holding that two corporations whose concurrent negligence had caused the death of a laborer were properly joined as defendants, the court, without citation of authority, said: "There can, in such case, be no apportionment of damages as between the several parties whose negligent acts and conduct have contributed to the injury. Nor can one of the wrongdoers compel contribution from the other." 134 Ill. 481, 493.) Except for Wanack v. Michels, 215 Ill. 87, and Skala v. Lehon, 343 Ill. 602, the court has not qualified the statement that there is no right of contribution among tortfeasors. (See John Griffiths & Son Co. v. National Fireproofing Co., 310 Ill. 331, 339; Chicago & Illinois Midland Ry. v. Evans Construction Co., 32 Ill.2d 600, 603; Miller v. DeWitt, 37 Ill.2d 273, 289; Muhlbauer v. Kruzel, 39 Ill.2d 226; Reese v. Chicago, Burlington & Quincy R.R. Co., 55 Ill.2d 356; Carver v. Grossman, 55 Ill.2d 507, 510.) In Wanack, which involved an intentional tort, the court stated that the noncontribution rule applied only to intentional wrongdoing. 215 Ill. 87, 94.) In Skala the court said: "It is true, as a general rule, that the right of contribution does not exist as between joint tort feasors where ...