Appeal from the Circuit Court of Winnebago County; the Hon.
David F. Smith, Judge, presiding.
JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:
Defendant and third-party plaintiff, Richard Mindemann (Mindemann), and defendant and third-party plaintiff, Scott T. Ellison (Ellison) (together referred to as third-party plaintiffs), appeal from an order of the circuit court of Winnebago County entering judgment on the pleadings in favor of third-party defendant and appellee Chief Truck Lines, Inc. (Chief). Third-party plaintiffs contend that count I of their complaint seeking indemnity from Chief and count II seeking contribution under the Contribution Among Joint Tortfeasors Act (Ill. Rev. Stat. 1981, ch. 70, par. 301 et seq.) (Act) properly stated valid causes of action. Chief responds that third-party plaintiffs are precluded from asserting their indemnity claim because of their active negligence and that third-party plaintiffs' contribution claim is unwarranted because Chief's actions did not contribute to plaintiffs' injuries. We affirm.
Chief is the holder of a license under the authority of the Interstate Commerce Commission (ICC) to carry freight interstate. In order to ship a freight load to the State of Florida, Chief as carrier-lessee entered into a lease agreement on January 14, 1980, with lessor Mindemann. Under the terms of the lease, Chief leased from Mindemann a truck owned by Mindemann. Mindemann agreed to furnish his own driver to transport the shipment tendered by Chief. The lease further provided that "[s]uch employee-drivers, driver-helpers and laborers are understood to be employees of the Contractor [Mindemann], and Contractor shall be solely responsible for the direction and control of such employees * * *." In addition, the lease contained the provision that if Chief were unable to provide a return load for the trip from Florida to Illinois, Mindemann could enter into a trip-lease arrangement with another interstate carrier so long as the load handled on the trip-lease basis was destined for a point within a 50-mile radius of Chief's home terminal point.
Sometime during June 1980, Ellison, acting as an employee of Mindemann, transported Chief's shipment to Florida using Mindemann's truck according to the terms of the lease agreement between Chief and Mindemann. Chief did not have a return load, so Ellison leased the truck space on Mindemann's behalf to defendant Caravan Refrigerated Cargo, Inc. (Caravan), for a return load to Macomb, Illinois. Ellison completed the trip to Macomb and then drove to Rockford, where he was involved in an accident with plaintiff, Joel Wheeler (Wheeler), who was operating a motorcycle at the time of the accident.
In a one-count complaint filed on June 16, 1981, Wheeler alleged that Ellison, employed as agent of Mindemann and Caravan, operated his truck negligently and struck Wheeler's motorcycle. The truck when involved in the accident displayed Chief's legend on the cab. On July 19, 1982, Ellison and Mindemann filed their two-count third-party complaint against Chief; count I sought indemnity and count II sought contribution. Chief filed a motion to dismiss or in the alternative for judgment on the pleadings. On January 6, 1983, the trial court granted judgment on the pleadings in favor of Chief as to both the indemnity and contribution counts. The trial court denied the motion of third-party plaintiffs for reconsideration, entered a finding pursuant to Supreme Court Rule 304(a) (73 Ill.2d R. 304(a)), and third-party plaintiffs filed a timely notice of appeal.
• 1 The first question presented is whether this court has jurisdiction to hear this appeal. Chief argues that third-party plaintiffs' notice of appeal is defective because it recites only that the appeal is taken from "the Order of the Circuit Court of the 17th Judicial Circuit of the County of Winnebago, State of Illinois, entered in said cause on January 20, 1983, in favor of Third Party Defendants-Appellee, CHIEF TRUCK LINES, INC., for dismissal with prejudice and costs of suit." Since the notice of appeal does not refer to the final judgment on the pleadings which was entered on January 6, 1983, and instead only refers to the January 20 non-final order denying the motion for reconsideration, Chief contends third-party plaintiffs have failed to confer jurisdiction upon this court.
A notice of appeal must "specify the judgment or part thereof appealed from." (73 Ill.2d R. 303(c)(2).) An appellate court may not review a matter which is not raised as an issue in the notice of appeal unless the deficiency is one of form and not substance. (In re Estate of Malloy (1981), 96 Ill. App.3d 1020, 422 N.E.2d 76.) A notice of appeal is jurisdictional, but where the deficiency is one of form only, the reviewing court is not necessarily deprived of jurisdiction especially where the appellee is not otherwise prejudiced. (Illinois Bell Telephone Co. v. Purex Corp. (1980), 90 Ill. App.3d 690, 413 N.E.2d 106.) The notice of appeal in the instant case is sufficient to confer appellate jurisdiction. While third-party plaintiffs should have referred to the final judgment entered January 6, 1983, granting judgment on the pleadings, the error was one of form, not substance. Chief has not alleged nor shown prejudice resulting from the error. In their appellate briefs, the parties argue the merits of the order entering judgment on the pleadings; thus, Chief has not been misled by the notice of appeal. Chief was informed by the notice that third-party plaintiffs were appealing the order dismissing the lawsuit with prejudice. The notice of appeal included the substance if not the date of the court's January 6, 1983, order and the appeal was filed within 30 days of the final judgment entered on January 6, 1983. Therefore, this court has jurisdiction to entertain this appeal. See Pickle v. Curns (1982), 106 Ill. App.3d 734, 435 N.E.2d 877; Illinois Bell Telephone Co. v. Purex Corp. (1980), 90 Ill. App.3d 690, 413 N.E.2d 106.
Third-party plaintiffs assert that their complaint stated a cause of action for implied indemnity. Third-party plaintiffs argue the lease agreement between Mindemann and Chief establishes the existence of a pretort relationship and further, that the complaint alleges a qualitative distinction between the conduct of the parties. In response, Chief argues that this court should rule that the doctrine of indemnity has not survived the adoption in Illinois of contribution among joint tortfeasors. Even if indemnity is still viable, Chief contends, the complaint of third-party plaintiffs failed to state a cause of action because it did not allege a qualitative distinction between the conduct of the parties; a necessary element in an implied indemnity cause of action. Chief further argues that the pleadings demonstrate it and not third-party plaintiffs is entitled to indemnification based upon the terms of the parties' agreement.
• 2 Chief moved for judgment on the pleadings under section 2-615(e) of the Code of Civil Procedure. (Ill. Rev. Stat. 1983, ch. 110, par. 2-615(e).) The rules pertaining to judgment on the pleadings are well settled.
"A motion for judgment on the pleadings: requires an examination of the pleadings to determine the existence or absence of an issue of fact, or whether the controversy can be resolved solely as a matter of law, or not; admits all well-pleaded facts set forth in the respondent's pleadings; draws all fair inferences from the respondent's pleadings; and contemplates that the moving party is entitled to judgment as a matter of law." (Baker-Wendell, Inc. v. Edward M. Cohon & Associates, Ltd. (1981), 100 Ill. App.3d 924, 927, 427 N.E.2d 317, 319.)
In reviewing an order granting judgment on the pleadings, the appellate court must ascertain whether the trial court determined correctly that no genuine issue of material fact was presented by the pleadings, and if there was no such issue, whether judgment was entered correctly. Teeple v. Hunziker (1983), 118 Ill. App.3d 492, 454 N.E.2d 1174; Kemper v. Worcester (1982), 106 Ill. App.3d 121, 435 N.E.2d 827.
• 3 A third-party complaint in an action for indemnity must allege a qualitative difference between the negligence of the two third-parties. (Bednar v. Venture Stores, Inc. (1982), 106 Ill. App.3d 454, 436 N.E.2d 46; Burgdorff v. International Business Machines (1975), 35 Ill. App.3d 192, 341 N.E.2d 122.) Some courts> have also stated the requirement that the complaint allege a pretort relationship between the parties, but one commentator disputes whether Illinois courts> have required the pretort relationship in addition to the requirement of a qualitative difference between the two parties' negligence. (See Kissel, Developments in Third-Party Practice-Contribution and Indemnity, 71 Ill. B.J. 654, 664-65 (1983).) In any event, this requirement is satisfied in this case because Illinois courts> have recognized that a lease between the parties, as is alleged here, is sufficient to constitute a pretort relationship. See, e.g., Mierzejwski v. Stronczek (1968), 100 Ill. App.2d 68, 241 N.E.2d 573; Blaszak v. Union Tank Car Co. (1962), 37 Ill. App.2d 12, 184 N.E.2d 808.
• 4 To satisfy the qualitative difference requirement, a party must demonstrate that his fault for the injuries of the original plaintiff is different in quality or nature, rather than in quantity, from that of the proposed indemnitor. (Harris v. Algonquin Ready Mix, Inc. (1974), 59 Ill.2d 445.) One who is actively negligent will not be allowed to shift responsibility to another person regardless of the relative degree of their negligence. (Carver v. Grossman (1973), 55 Ill.2d 507.) The facts of the case in which indemnity is sought "must clearly justify indemnification" (55 Ill.2d 507, 512), as application of another standard would permit the total shifting of responsibility to one negligent party while permitting the other to escape responsibility for his negligent conduct (55 Ill.2d 507, 512). What constitutes active negligence so as to preclude the shifting of liability between joint tortfeasors is not susceptible of precise definition and depends upon the facts of a particular case. (Moody v. Chicago Transit Authority (1974), 17 Ill. App.3d 113, 307 N.E.2d 789.) A party is not entitled to indemnification where he has breached an affirmative duty to the plaintiff in the underlying action, as the indemnitee's negligence must be of a "technical" or secondary nature. Burgdorff v. International Business Machines (1975), 35 Ill. App.3d 192, 341 N.E.2d 122.
• 5 We believe judgment on the pleadings was granted properly on the indemnity count. "`* * * [O]ne is passively negligent if he merely fails to act in fulfillment of a duty of care which the law imposes on him * * *. One is actively negligent if he participates in some manner in the conduct or omission which caused the injury.'" (Sargent v. Interstate Bakeries, Inc. (1967), 86 Ill. App.2d 187, 193, 229 N.E.2d 769, 772, quoting King v. Timber Structures, Inc. (1966), 240 Cal.App.2d 178, 49 Cal.Rptr. 414.) By this definition, Ellison who drove the truck which was involved in the automobile accident was actively negligent. Mindemann as employer of Ellison was responsible for his negligence under the doctrine of respondeat superior. Chief became responsible for the truck's operation only because of its identifying signs on the truck. While under the governing ICC regulations, plaintiff was entitled to sue Chief directly (see Kreider Truck Service, Inc. v. Augustine (1979), 76 Ill.2d 535), Chief's liability can hardly be characterized as active while the actions of Ellison, the driver, and Mindemann, the owner, are labeled as passive or merely technical negligence. As the third-party plaintiffs were actively negligent, they are not entitled to ...