author: MR. PRESIDING JUSTICE SULLIVAN

text:
    Leon Trzos, Plaintiff, v. Berman Leasing Company, a Domestic Corporation, Pacific Intermountain Express, a Foreign Corporation, Chicago Terminal Clearance, and Richard Laszczewski, Defendants. James L. Emerick, d/b/a Chicago Terminal Clearance and Richard Laszczewski, Third-Party Plaintiffs-Appellants, v. Bobbe & Company, a Corporation, Third-Party Defendant-Appellee.
    Gen. No. 50,812.
    First District, Third Division.
    August 11, 1967.

      Howard, French and Healy, of Chicago, for appellants.
    William M. Flaherty and William J. O’Brien, of Chicago, for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

This is an appeal from an order dismissing a third-party complaint on motion of the third-party defendant. The plaintiff, Leon Trzos, filed an original complaint against Berman Leasing Company, Pacific Intermountain Express, James L. Emerick, d/b/a Chicago Terminal Clearance, and Richard Laszczewski. The complaint alleged that the plaintiff was on a scaffold painting a bridge or overpass extending across the Congress Street Expressway at 3800 West when he was struck and injured as a direct and proximate result of a tractor-trailer unit, negligently operated and controlled by defendant, Richard Laszczewski, the agent, servant and employee of defendant, Chicago Terminal Clearance, colliding with said scaffold.

The complaint set forth the following specific acts of negligence as the cause of plaintiff’s injuries:

(a) Failure to keep a lookout for plaintiff
(b) Failure to control defendant’s vehicle
(c) Operation of defendant’s vehicle at a dangerous and excessive rate of speed
(d) Operation of defendant’s vehicle with faulty and defective brakes
(e) Failure to employ a competent and skilled driver
(f) Failure to allow sufficient clearance between the tractor-trailer and the bridge
(g) Careless operation and maintenance of defendant’s tractor-trailer unit

Each of the allegations of the complaint was denied by the defendants, Chicago Terminal Clearance and Richard Laszczewski, excepting an allegation that the plaintiff, Leon Trzos, was lawfully working upon a scaffold attached to or upon a bridge extending over the Congress Street Expressway at or near the 3800 West Block in the City of Chicago, County of Cook, State of Illinois. As to that allegation, the defendants alleged that they did not have sufficient knowledge and therefore neither admitted nor denied said allegation.

The defendants, James L. Emerick, d/b/a Chicago Terminal Clearance, and Richard Laszczewski, filed a third-party complaint at law alleging that the plaintiff in the original complaint claimed to have sustained personal injuries when struck by a tractor-trailer unit under-the control and supervision of third-party plaintiffs. A copy of the original complaint was attached to the third-party complaint. The third-party complaint also alleged that defendants to the original complaint had filed an answer denying any negligence or liability on defendants’ part and averred that at all times they were exercising ordinary care for plaintiff’s safety. The third-party complaint further alleged that third-party defendant Bobbe & Company was painting the bridge over and upon the eastbound lanes for vehicular traffic of Congress Street Expressway and that plaintiff, in his employment with third-party defendant, was on a scaffold at said location painting under the supervision and direction of the third-party defendant.

It further alleged that the original complaint stated that while plaintiff was lawfully working upon said scaffold attached to or upon said Independence Avenue bridge, the trailer truck of the defendants including third-party plaintiffs allegedly operating eastbound on said Congress Street Expressway at or near the Independence Avenue bridge, collided with and against the scaffold on which plaintiff was working causing plaintiff severe and permanent injuries. The third-party complaint then charged that the third-party defendant through its agents and employees carelessly and negligently did or omitted to do one or more of the following acts or omissions:

a. Constructed and maintained said scaffold in the path or space of eastbound motor traffic on said Congress Expressway,
b. Failed to construct and maintain said scaffold at a sufficient height to be clear of eastbound motor vehicle traffic on said Congress Expressway,
c. Failed to construct and maintain said scaffold at a sufficient height so it would not be upset or affected by eastbound motor vehicle traffic on said Congress Street Expressway,
d. Maintained and operated said scaffold so as to constitute a hazard to plaintiff and to eastbound motor vehicle traffic on said Congress Expressway,
e. Failed to provide plaintiff with a safe scaffold,
f. Maintained and operated said scaffold without closing from motor vehicle traffic the eastbound lanes on said Congress Street Expressway occupied by said scaffold,
g. Failed to post signs or warnings of said scaffold to eastbound motor vehicles in said Congress Expressway,
h. Failed to post signs or markers at a sufficient distance from said Independence Avenue bridge so as to provide for reasonable warning to eastbound motor vehicle traffic on said Congress Expressway against use of the eastbound lanes occupied by said scaffold,
i. Failed to post guards or other personnel to direct and divert eastbound motor vehicle traffic on said Congress Expressway from the lanes occupied by said scaffold,

The third-party complaint further alleged that in the event a judgment was entered or damages assessed against third-party plaintiffs under the original complaint, such judgment would be based upon technical or passive carelessness and negligence of third-party plaintiffs and not on any acts or omissions of active or primary carelessness and negligence of third-party plaintiffs. The third-party complaint then asked that in the event of the entry of judgment against the third-party plaintiffs in favor of the plaintiff in the original complaint, that immediate judgment be entered over against third-party defendant. The plaintiff in the original complaint is an employee of the defendant in the third-party action, Bobbe & Company.

The third-party plaintiffs raise only the point that the third-party complaint states a cause of action. The general rule of law applicable to situations of this kind is that where two parties acting together commit an illegal or wrongful act the party injured may hold both responsible for the damages resulting from their joint act and neither can recover from the other the damages he may have paid or any part of them.

As was pointed out in Gulf, M. & O. R. Co. v. Arthur Dixon Transfer Co., 343 Ill App 148, 98 NE2d 783, there are many exceptions to the general principle of noncontribution between tort-feasors recognized by the courts of this and other states and by the federal courts. A number of these exceptions are set forth in that case and one of the exceptions is, where the defendant in the original action is guilty of only passive negligence and the defendant in the third-party action is guilty of active negligence, the defendant in the original action may recover from the defendant in the third-party action the amount of the judgment rendered against the defendant in the original action.

From an examination of the original complaint it is impossible to determine whether the scaffold was hanging under the overpass, attached to the side, or on top of the overpass. Nevertheless the complaint did allege that defendant’s truck struck the scaffold and many of the charges in the original complaint are charges of active negligence.

Section 25(2) of the Civil Practice Act (Ill Rev Stats 1963, c 110, par 25(2)), which provides for the third-party complaint, reads in part as follows:

“ (2) 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. . . .” (Emphasis supplied.)

As was said in Blaszak v. Union Tank Car Co., 37 Ill App2d 12, 16, 184 NE2d 808: “It does not have to appear with certainty that there will be a recovery over against the third-party defendant. It is sufficient that the pleadings show a possibility of recovery.”

From an examination of the pleadings evidence could be introduced which would justify a recovery under the third-party complaint. To say that a charge of active negligence on the part of the defendant in the original complaint would necessarily preclude a recovery against the defendant in a third-party complaint is not being realistic. The plaintiff in the original complaint might well show by proof that the defendants and third-party plaintiffs were guilty of some type of passive negligence, and then amend the complaint to conform the pleadings to the proofs at any time before or after judgment, in conformity with section 46(3) of the Civil Practice Act (Ill Rev Stats 1963, c 110, par 46(3)). If merely by alleging active negligence in the original action, the defendants to that action would have their third-party complaint dismissed and some time later when the case was reached on the trial calendar and was tried, the plaintiff was able to prove only passive negligence against the defendants, the rights of the defendants in the original case would be materially prejudiced. Also, we think that it is not sufficient to look at the original complaint alone to see whether the allegations are of active or passive negligence in order to determine the sufficiency of or right to maintain the third-party complaint. In the instant case all allegations of active negligence are denied by the defendants to the original complaint. One of the charges of negligence in the original complaint is designated as (g) “Otherwise, carelessly and negligently operated and maintained said vehicle.” Under this allegation passive negligence could be proven against the defendants, in which case they would be entitled in their third-party action to recover against the third-party defendant if it were guilty of active negligence. Furthermore, if we assume that at the trial the plaintiff proved that the scaffold was so constructed by the third-party defendant, Bobbe & Company, as to constitute an obstruction, in a public highway, to the vehicular travel and no precautions were taken to post warnings for eastbound traffic on Congress Street Expressway at that location, then the third-party defendant would be guilty of active negligence, whereas the third-party plaintiffs might very well have been guilty only of passive negligence, assuming the defendants to the original complaint struck the scaffold with their vehicle. As was pointed out in the Dixon case, supra, mere motion does not define the distinction between active and passive negligence. The fact that the third-party plaintiffs’ truck was in motion does not of itself constitute active negligence.

In Miller v. DeWitt, d/b/a DeWitt-Amdal & Associates, 37 Ill2d 273, 226 NE2d 630, plaintiffs were injured as the result of the collapse of the roof of a school gymnasium on which they were working as employees of a contractor, Fisher-Stoune, Inc. Action was brought to recover for their injuries against the supervising architects and the owner. The architects filed a third-party complaint against the contractor which complaint was dismissed on the contractor’s motion before any evidence was heard. In that case the Supreme Court cited with approval Blaszak v. Union Tank Car Co., supra, where it was said that the purpose of a third-party action is to permit the determination of the rights and liabilities of all parties before a single tribunal and upon the same evidence. The contractor in Miller, supra, insisted that since the original complaint and third-party complaint contained similar allegations of negligence, there could be no indemnity over between two active wrongdoers. The court there said on page 290:

“. . . We do not agree with this conclusion. While the original complaint does contain allegations of active wrongdoing, this does not constitute the sole basis for liability on the part of the architects. As we have suggested before, the jury could have properly based their verdict on the failure of the architects to stop work or prevent the contractor from performing its duties in an unsafe manner. If the jury could properly find that any injury was directly caused by improper construction methods and techniques used by a contractor, and, as we hold, that the architect was liable only by reason of a failure to stop work on the job, we think that the jury could find that the contractor was an active tortfeasor while the architect’s fault was merely passive. . . . The Supreme Court agreed with Rovekamp v. Central Const. Co., 45 Ill App2d 441, 449, wherein we said: “Who is the more culpable, a party who supervises and coordinates the overall project, or a party who is responsible for the scaffolding and the particular work which produced the injury? . . . Neither can escape liability to the (injured) plaintiff — thus the purpose of the Act is accomplished— but the lesser delinquent, if held accountable by the plaintiff, can transfer its statutory liability to the active delinquent, whose dereliction from duty brought about plaintiff’s injury.”

The court there concluded that that was a proper case for a third-party complaint and reversed the trial court’s order in dismissing the architect’s third-party complaint on motion without presenting the issue to the jury. We believe in the instant case the jury could properly find that the injury was directly caused by improper construction methods and location of the scaffolding, and that the defendants (third-party plaintiffs) were liable only by reason of a failure to avoid striking a hazardous obstruction in the highway (namely, a scaffold), the presence of which could not have been anticipated by the third-party plaintiffs. In such case the third-party plaintiffs could very well be guilty only of passive negligence. Or, let us assume, since the defendants to the original complaint have denied the charges of active negligence in the original complaint, that the defendants (third-party plaintiffs) did not strike the scaffold but the suction from the movement of the vehicle caused the scaffold to sway, resulting in the injury to the plaintiff, then the defendants (third-party plaintiffs) might well be held guilty of only passive negligence, whereas the defendant in the third-party complaint, who negligently constructed the scaffold so that it constituted an obstruction to highway travel and failed to provide the plaintiff with a safe place to work, would be guilty of active negligence.

Many cases cited by the third-party defendant in its brief are cases in which the evidence had been heard and have no relevance to the specific question which is presented here on the pleadings.

We agree with the decisions in Reynolds v. Illinois Bell Tel. Co., 51 Ill App2d 334, 201 NE2d 322, and Campbell v. Joslyn Mfg. & Supply Co., 65 Ill App2d 344, 212 NE 2d 512, that under the situations presented there and in the instant case we cannot determine whether the negligence is active or passive until all the evidence is heard at the time of trial.

Third-party defendant contends that since Leon Trzos, the plaintiff in the original action, was an employee of the third-party defendant, his exclusive remedy under the Illinois Workmen’s Compensation Act would prevent recovery or derivative liability for injury to its employee. The cases of Moroni v. Intrusion-Prepakt, Inc., 24 Ill App2d 534, 165 NE2d 346, and Miller v. DeWitt, supra, have resolved this issue adversely to the third-party defendant.

Third-party defendant also contends that it has available to it the defense of contributory negligence of the plaintiff, Leon Trzos, and the dismissal of the third-party complaint was properly ordered. We do not think this contention is well founded. The original complaint alleges that the plaintiff was in the exercise of due care and caution for his own safety and the safety of others. The third-party plaintiffs in their answers to the original complaint denied the allegation with reference to the due care exercised by the plaintiff. In order for the plaintiff to recover from the third-party plaintiffs, under the existing pleadings, it will be necessary for him to prove that he was not guilty of contributory negligence. If the plaintiff in the original action recovers against the third-party plaintiffs it would be because the plaintiff was, in fact, free from contributory negligence.

We conclude, therefore, that the court erred in dismissing the third-party complaint and that the case must be reversed and remanded to the trial court with instructions to reinstate the third-party complaint.

Reversed and remanded.

SCHWARTZ and DEMPSEY, JJ., concur.


source: Caselaw Access Project

author: MR. JUSTICE DEMPSEY

license: Public Domain

text:
    Linda Sargent, a Minor, by Her Mother and Next Friend, Charlie Belle Sargent, Plaintiff, v. Interstate Bakeries, Inc., a Corporation, and Steve Diklich, Defendants-Counter-Plaintiffs-Appellants, v. David Herskovitz, Defendant-Counter-Defendant-Appellee.
    Gen. No. 51,111.
    First District, Third Division.
    August 11, 1967.

      B. F. Martin, of Chicago (F. W. Gulbranson, of counsel), for appellants.
    Howard, French and Healy, of Chicago (Russell V. Guilford, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

This is an appeal from an order dismissing a counterclaim (a third-party complaint).

Linda Sargent, a minor, was injured by a motor vehicle while she was crossing a street at an intersection. The vehicle was owned by the defendant Sun Ray Fluorescent Company and was driven by its employee, the defendant David Herskovitz. In count I of a two-count complaint she charged these defendants with seven acts of negligence in the operation of their vehicle.

Count II of the complaint was against the owner and driver of another vehicle: Interstate Bakeries, Inc., and Steve Diklich. She charged these defendants with negligence in parking their vehicle at the crosswalk of the intersection and alleged that this also caused her to be injured.

After the defendants had answered the complaint and denied its allegations, Interstate Bakeries and Diklich (Interstate) filed a counterclaim for indemnity against the Sun Ray Company and Herskovitz (Herskovitz), alleging that their own negligence was passive while that of Herskovitz was active and was the proximate cause of the plaintiff’s injuries. Herskovitz moved to dismiss on the ground that under the plaintiff’s complaint Interstate could only be guilty of active acts of negligence and that contribution between tortfeasors is not allowed in the State of Illinois. The motion was granted and Interstate appealed — the trial court having found that there was no just cause to delay appeal from its ruling.

The appellant relies upon the case of Reynolds v. Illinois Bell Tel. Co., 51 Ill App2d 334, 201 NE2d 322 (1964). Outside of some small procedural differences the Reynolds case is identical with the case at bar. A minor was injured in a crosswalk by a passing motorist. A truck owned by Illinois Bell was parked near the crosswalk. The minor sued Illinois Bell (a covenant not to sue had been entered into with the motorist) alleging that its negligence in parking caused her injuries. Illinois Bell sought indemnifying protection from the motorist. The trial court dismissed Illinois Bell’s third-party complaint. The Appellate Court reversed. The court held that the complaint stated a cause of action for indemnity and that it should not have been dismissed without a trial on the merits of the question whether the motorist was the primary delinquent compared with Illinois Bell’s parking violation.

The appellee, Herskovitz, attacked the Reynolds decision in the trial court and criticizes it vehemently in this court as going beyond all the recognized theories under which Blinois courts have permitted indemnification and as approving, under the guise of indemnity, contribution among pari delicto tortfeasors.

The trial judge refused to follow Reynolds. His position was candidly expressed in a companion case wherein Reynolds was also cited: “It is my view that the decision in Reynolds is basically wrong and contrary to our previous guideposts. . . .” The judge gave his reasons for not following Reynolds, among them being that it unnecessarily expanded, beyond any true indemnity situation, the concept of comparative negligence between defendants and constituted a long step towards involuntary contribution between joint tortfeasors.

It is argued on appeal that Reynolds is not a correct exposition of the Illinois law concerning common-law indemnification ; that indemnification is only allowed where one does the act which produces the injury and the other does not join in the act but is exposed to liability; that the cases cited in the Reynolds opinion fall within this principle but the factual situation in Reynolds does not. It is further argued that if Reynolds is followed a negligent defendant may be completely relieved of liability if he can find a defendant who was more negligent than himself, and that it will encourage the filing of third-party complaints in attempts to shift the entire burden from one defendant to another.

It is true that the Reynolds decision did add a further dimension to the right of one negligent tortfeasor to recover indemnity from another. Generally, recovery had theretofore been allowed only in cases where the liability of the defendant seeking indemnity was derived from the defendant from whom indemnity was sought and the defendants had some community of interest in their relationship to the plaintiff which antedated the liability-creating incident. See Spivack v. Hara, 69 Ill App 2d 22, 216 NE2d 173 (1966). Under one analysis of Illinois cases, a pretort relationship between negligent tortfeasors provides a necessary substratum for implying an agreement that the one tortfeasor would perform the duties imposed by the relationship without subjecting the other to liability. Comment: Contribution and Indemnity in Illinois Negligence Cases, 19 U Chi L Rev 388, 397 (1952). However, the right to indemnity stands upon the principle that everyone is responsible for the consequences of his own acts, Bituminous Cas. Corp. v. American Fidelity & Casualty Co., 22 Illl App2d 26, 159 NE2d 7 (1959); Prosser, Torts, 15 (2d ed 1955); Holmes, The Common Law, 108-110, 144-146 (1881). Thus, the absence of a prior legal relation should not foreclose relief to a tortfeasor not in pari delicto with his codefendant. Although the existence of such a relationship may tend to establish that the liability of the potential indemnitee is solely derivative, it does not prove that he was not an active cause of the plaintiff’s injuries, e. g., Yankey v. Bohling, 37 Ill App2d 457, 186 NE2d 57 (1962). Nor does absence of a specific relationship necessarily prove that the codefendants were in pari delicto and thereby preclude indemnity, e. g., McDonald v. Village of Lockport, 28 Ill App 157 (1888). Implicit in the Reynolds decision is the recognition that a joint tortfeasor might be blameless in comparison with a codefendant with whom he had no pretort relation and that lack of this community of interest is not of itself a bar to indemnification.

This same principle was expressed by the court in Parrish v. DeRemer, 117 Colo 256, 187 P2d 597 (1947). In that case the defendant was a construction company engaged in building a road across a well-travelled highway. The defendant barricaded the highway at its intersection with the road and directed vehicles travelling either way on the highway to pass the barricade on an unfinished portion of the construction project. This detour was too narrow for vehicles to pass abreast but no warning to that effect was posted. The plaintiff’s truck in using the detour collided with an automobile. The occupants of the automobile recovered a judgment from the plaintiff, and he sought indemnification from the defendant. The trial court’s grant of summary judgment for the defendant was reversed by the Supreme Court. That court said:

“[W]hile there is a general rule which precludes one wrongdoer from recovering indemnity from another wrongdoer, there is an exception thereto which permits a party who is in fault as to the person injured but who is without fault as to the party whose actual negligence is the cause of the injury to recover indemnity.”

It should be noted that Colorado law does not permit contribution from a joint tortfeasor. Publix Cab Co. v. Fessler, 138 Colo 547, 335 P2d 865 (1959).

In addition to disregarding the lack of community of interest between the joint tortfeasors, the Reynolds decision also departed from the standards previously used to measure the disparity in degree of fault necessary to constitute a cause of action for indemnity. The alleged negligence of Illinois Bell in parking its truck furnished a condition upon which the motorist operated. The subsequent independent act of the motorist caused the plaintiff’s injury. In holding that under these circumstances Illinois Bell’s negligence was passive and that of the motorist active, Reynolds reached the same conclusion as did the court in Southwestern Greyhound Lines v. Crown Coach Co., 178 F2d 628 (8th Cir, 1949). Greyhound operated a bus station and Crown Coach used the station to load and unload its passengers. A passenger of Crown Coach, after disembarking from one of its buses, fell over a piece of luggage and was injured. She sued Crown Coach and won and Crown thereupon sued Greyhound. Each bus company contended that its negligence, if any, was passive and the other’s active. The court held that the negligence of both Greyhound and Crown Coach was passive; that the party guilty of active negligence was the unknown person who placed his luggage on the floor near where passengers had to alight. The court found that the companies’ passive negligence furnished the occasion for the passenger’s accident and stated:

“Passive negligence exists where one person negligently brings about a condition or an occasion and active negligence exists where another party negligently acts upon that condition and perpetrates a wrong.”

A similar explanation of the difference between active and passive negligence was given in King v. Timber Structures, Inc. of California, 240 Cal App2d 178, 49 Cal Rptr 414 (1966), an action for indemnity by a general contractor against a subcontractor. The court there stated:

“. . . one 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.”

The strict rule prohibiting contribution which the appellee advocates and the trial court applied is a modification of the one first pronounced in Merryweather v. Nixan, 8 Durn & East 186, 101 Eng Rep 1337 (1799). The original rule was applied to those who acted in concert and whose torts were intentional. However, the rule’s prohibition was subsequently extended in some jurisdictions, Illinois among them, to those whose torts were merely negligent. In the early case of Nelson v. Cook, 17 Ill 443 (1856), the flat statement was made that:

“. . . the principle laid down in Merryweather v. Nixan . . . that there is no right of contribution as between tortfeasors, or trespassers, has been, and still is, recognized as unquestionable law.”

An examination of the cases in which Illinois courts of review have discussed this general rule against contribution indicates that its vitality is derived more from judicial iteration of its existence than from its being applied in a consistent and unequivocal manner. The cases under analysis fall into two main classes, those which repeat the rule in its extended scope and those which, setting limitations to the broad formulation of the rule, revert to its pristine version.

The first class of cases includes suits for indemnity. In some of these cases the statement of the rule is dictum. E. g., Nelson v. Cook, supra, and the early Appellate Court case of Rend v. Chicago West Division Ry. Co., 8 Ill App 517 (1881). In others the courts have treated the right to indemnification as an exception to the rule against contribution and have stated that in the various circumstances the rule did not apply to bar recovery. E. g., Grimes v. Taylor, 93 Ill App 494 (1901); Blazak v. Union Tank Car Co., 37 Ill App2d 12, 184 NE2d 808 (1962); Embree v. Gormley, 49 Ill App2d 85, 199 NE2d 250 (1964). Another group of cases within the first classification is comprised of those wherein the right to contribution was not in issue but was considered in relation to the main point for decision. For example, the court in Johnson v. Chicago & Pacific Elevator Co., 105 Ill 462 (1882), said without qualification that “there is no right of contribution between wrongdoers.” Johnson was the owner of a boat which ran into the plaintiff’s grain elevator. A writ of attachment was issued against the boat, and the attachment was later released when Johnson posted a bond. J. B. Carter, claiming to be part owner of the boat, then sought leave to be made a defendant. His petition was denied and the Supreme Court affirmed. The court stated that the bond released the boat to its owners and that Carter therefore could not be affected by the result of the suit since only the obligors on the bond would be required to pay the judgment. It was in response to Carter’s claim that he was interested in the suit because he would be liable to contribute to the judgment that the court denied any right of contribution. The court cited no authority for its pronouncement. Apart from whether or not there was a right to contribution, the denial of intervention was proper since a plaintiff has the right to sue any one or more joint tortfeasors. (Grewenig v. American Baking Co., 293 Ill App 604, 13 NE2d 183 (1938).) Other cases illustrative of this group are: Consolidated Ice Machine Co. v. Heifer, 134 Ill 481 (1890); Vieths v. Skinner, 47 Ill App 325 (1893); Consolidated Fireworks Co. v. Koehl, 92 Ill App 8 (1900); Aldridge v. Morris, 337 Ill App 369, 86 NE2d 143 (1949); Dart Transit Co., Inc. v. Wiggins, 1 Ill App2d 126, 117 NE2d 314 (1953).

In the second class of cases are statements of the rule which are in accord with its original expression in Merry weather v. Nixan, supra. In some of the cases the discussion of the rule was in support of the decision on the main issue. The decision in Skala v. Lehon, 343 Ill 602, 175 NE 832 (1931), depended upon whether a joint action could be maintained against a master and servant where the master’s liability was based on the doctrine of respondeat superior. In answering an objection raised against joinder, the court said that as a general rule the right of contribution does not exist as between joint tortfeasors when there is concerted action in the commission of the wrong; but where there is no concerted action the rule does not apply for the parties in such a case are not in pari delicto as to each other, and as between themselves their rights may be adjusted in accordance with the principles of law applicable to the relation in fact existing between them. Cf. Wallach v. Billings, 195 Ill App 605 (1915). Other cases within this classification include suits for contribution from joint tortfeasors. In Farwell v. Becker, 129 Ill 261 (1889), the Supreme Court acknowledged that some cases held there was no right of contribution between wrongdoers but thought that the weight of authority did not sustain so broad a statement of the rule. It stated that if attaching creditors acted in good faith, with prudence, caution and the honest belief they were legally entitled to seize the goods, the right of contribution exists although it ultimately turned out that the seizure was unlawful. Accord, Selz, Schwab & Co. v. Guthman, 62 Ill App 624 (1896). In Goldsborough v. Darst, 9 Ill App 205 (1881), contribution was allowed between two persons who committed a tort intentionally and knowingly, fraudulently attempting to deprive a third person of a parcel of land. In Wanack v. Michels, 215 Ill 87 (1905), the surety of a dramshop operator sought to compel the lessor of the premises to contribute to a judgment rendered against the operator and the lessor under the Dram Shop Act. The court stated that it is a general rule that there is no right of contribution as between tortfeasors ; it added, however, that this rule is applied only to cases of intentional and conscious wrongdoing. Contribution was denied because the lessor and the operator for whom the plaintiff was surety were both intentional wrongdoers. A further division of this class is represented by McDonald v. Trumpf, 49 Ill App2d 106, 198 NE2d 537 (1964), a suit for contribution between negligent tortfeasors. In this case a motorist claimed a right to contribution from the operators of a tavern. The motorist while intoxicated had injured the plaintiff and the judgment which the latter obtained against him and the tavern keepers was sought to be enforced against the motorist and his insurer alone. The court stated that the rule of no contribution among tortfeasors applied only when they had acted concertedly and intentionally, and that in other cases recovery may be allowed to the passive tortfeasor whether or not the joint tortfeasors had a prior contractual relation. Recovery was denied because the motorist was an active tortfeasor.

The decisions in the last class of cases where the question of a right to contribution was squarely presented would tend to support a conclusion that the law does permit contribution between negligent tortfeasors. However, repetition of the general rule in other cases has played a part in its retention and it is still the law of Illinois. Chicago & Illinois Midland Ry. v. Evans Const. Co., 32 Ill2d 600, 208 NE2d 573 (1965); Miller v. DeWitt, 37 Ill2d 273, 226 NE2d 630 (1967).

To alleviate the harsh results that would be caused by the uniform refusal to allow contribution, the courts of Illinois have developed indemnification as an exception to the rule. Palier v. Dreis & Krump Mfg. Co., 81 Ill App2d 1, 225 NE2d 67 (1967); Spivack v. Hara, 69 Ill App2d 22, 216 NE2d 173 (1966). At common law the cases in which indemnity was allowed involved a defendant held liable without personal fault, typically master-servant cases and cases where the defendant was subject to a nondelegable duty. Due to the restrictions on the right to contribution, indemnity was expanded to allow recovery to a party not completely free of fault. (See the exceptions listed in Gulf, M. & O. R. Co. v. Dixon, 343 Ill App 148, 98 NE2d 783 (1951)). Our courts now permit one tortfeasor to recover from another if there is a qualitative distinction between the negligence of the two. As it is commonly stated, a passively negligent tortfeasor may obtain indemnification from an actively negligent tortfeasor.

Although the strict rule of noncontribution has been modified as the needs of the times compelled or as justice in the case at hand required, the active-passive exception has been applied in an ad hoc fashion and there is a lack of uniformity in the results. The Illinois judiciary is keenly aware of the inequities flowing from the present rule, and the perplexities which have arisen from the indemnity exception, and has recommended the rule’s abolition. The Illinois Judicial Conference of 1964 unanimously adopted a resolution favoring contribution between joint tortfeasors. The legislature has not acted upon the conference recommendation and the rule remains in force. However, the rule was court-made and can be court-changed. Molitor v. Kaneland Community Unit Dist., 18 Ill2d 11,163 NE2d 89 (1959).

If the rule is not abrogated it must be further relaxed. There cannot be rigid compliance with the rule without continuing injustices. Indemnity should not be limited to situations where there is derivative liability upon the third-party plaintiff by reason of operation of law, or where there has been a preaccident relationship with the third-party defendant. The law must be attuned to social developments and degrees of fault must be recognized which will permit indemnification from tortfeasors substantially at fault to those less blameworthy. Although Reynolds may, as the trial court thought, constitute a step toward involuntary contribution between joint tortfeasors, we do not find this result disturbing. As we observed in Moroni v. Intrusion-Prepakt, Inc., 24 Ill App2d 534, 165 NE2d 346 (1960) :

“The principle of no contribution and no indemnity between all joint tort-feasors is more a rule of ethics than a principle of law. The law simply closed its door to the inter se disputes of those whom it considered to be bad men. This originated at a time when torts were in the main such wrongs as slander, libel, and assault and battery. Today, torts are mainly the incidents of industry and transportation. To continue to apply the rule to such cases . . . would make the law no jealous mistress, but a squeamish damsel, refusing to have anything to do with a couple of respectable suitors because her grandfather once told her they were joint tort-feasors.”

In the case at bar the difference between the conduct of Interstate and Herskovitz could be substantial. It does not necessarily follow that because the plaintiff’s complaint makes little qualitative distinction in their negligence that there can be no such distinction. To start with, the plaintiff’s complaint alleged that Interstate parked its vehicle negligently and illegally. Interstate denied this in its answer and in its counterclaim stated that its vehicle was lawfully parked. Herskovitz’ motion to dismiss presupposes that Interstate will be able to prove the allegations in its counterclaim including the one that its vehicle was lawfully parked. To go on, negligent parking could be of many forms: double parking; parking at an angle to the curb if the parking should have been parallel; parking parallel to the curb if the parking should have been at an angle; parking too far from the curb; parking in a no-parking zone; parking into the crosswalk or too close to it. The position of the parked vehicle was not described. The plaintiff’s complaint merely said that it was parked in a “dangerous space,” that it obstructed the view of other vehicles and endangered pedestrians on the crosswalk. The negligence alleged against the operating vehicle, on the other hand, was many-sided: excessive speed, careless operation, failure to keep a proper lookout, failure to give warning, failure to apply brakes and failure to keep the vehicle under control. The circumstances of the accident could vary the culpability of the tortfeasors. If, for example, the evidence should show that Interstate’s vehicle was against the curb and parallel to it but a little too close to the crosswalk, and that the Herskovitz vehicle was being driven recklessly at an excessive speed and plowed into the crosswalk crowded with pedestrians, whose negligence would be more substantial ? On the other side of the coin, if the evidence should show that the Interstate vehicle was double-parked well into the crosswalk so that the vision of both pedestrians and approaching drivers was obscured, and that the Herskovitz vehicle was proceeding at a reasonable speed and under control but that its brakes were not applied in time to prevent striking the lone child only because the illegally parked vehicle delayed the driver in seeing her as she darted around the parked vehicle, whose negligence would be more flagrant ?

Of course, a third-party complaint may be dismissed if it fails to state a cause of action. But motions to dismiss such complaints before evidence is heard must be examined with circumspection. Pleadings do not always reveal with certainty the relative degrees of negligence of either the third-party plaintiff or defendant. Allegations of negligence in either the original or the third-party complaint may not be substantiated, some may be withdrawn, others may be added to conform to proof; factual questions may be raised by conflicting testimony or disputed evidence. In many of these cases it is only after evidence has been heard that a court can decide with reasonable accuracy whether a third-party complaint should be dismissed or the issues passed upon by the jury.

The problem facing a trial court is illustrated by the case of Miller v. DeWitt, 37 Ill2d 273, 226 NE2d 630 (1967). In Miller the complaint charged a general contractor who was remodeling a building and the architects who had drawn the plans for the remodeling with common-law negligence and a violation of the Structural Work Act. The architects filed a third-party complaint requesting indemnity from the contractor. The latter moved to dismiss on the principal ground that the plaintiffs’ complaint charged the architects with active negligence and that one so charged was not entitled to indemnity from another tortfeasor. The trial court sustained the motion, the case went to trial and a verdict was returned against the architects. They appealed from the judgment and from the court’s dismissal of their third-party complaint. The Appellate Court (59 Ill App2d 38, 208 NE2d 249 (1965)) affirmed the judgment and the dismissal. The Appellate Court rejected the architects’ contentions that the trial court should not have dismissed their complaint before the evidence was heard, and that a third-party complaint need not show with certainty the right to recover but is sufficient if it shows the possibility of liability on the part of the third-party defendant. Leave to appeal was granted. The Supreme Court affirmed the judgment but reversed the order dismissing the third-party complaint. The court said, “. . . while Illinois does not allow contribution among joint tortfeasors, it does allow a passively negligent tortfeasor to obtain indemnification from an actively negligent tortfeasor.” The court observed that, although the original complaint charged active wrongdoing on the part of the architects, the trial court should not have dismissed the third-party complaint unless it appeared from the pleadings that in no event would the architects have an action against the contractor.

So too in the present case. Although, according to the plaintiff’s complaint, the negligence of both defendants was concurrent and, although it can be argued that the negligence charged against them was of the same quality and character, this does not necessarily make Interstate’s counterclaim insufficient in law. A jury might well find that the plaintiff’s injuries were caused by Herskovitz and he was the active tortfeasor while Interstate’s fault was only passive. The defendants were not acting in concert; the alleged negligence of each was unintentional and independent of each other. On the face of the pleadings there was the distinct possibility that a jury could find that there was a much greater degree of culpability on the part of Herskovitz whose vehicle struck the plaintiff than on the part of Interstate whose parked vehicle merely furnished a condition which may have contributed slightly to the accident. This would be sufficient to warrant placing upon the former a burden commensurate with his fault. Under these circumstances the motion to dismiss the counterclaim should have been denied.

Total indemnity may appear unjust if the evidence discloses that interstate was in some measure to blame for the accident, but it would be much more unjust to compel Interstate to assume the burden of the tortfeasor who was chiefly at fault. The possibility of inequity is unavoidable until the rule against contribution yields to a more rational approach which will place upon each tortfeasor liability in proportion to his own culpability.

The order dismissing the counterclaim is reversed and the case is remanded to the Circuit Court.

Reversed and remanded.

SULLIVAN, P. J. and SCHWARTZ, J., concur.


author: EBERSPACHER, J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Ernest “Ned” Higgins, Defendant-Appellant.
    Gen. No. 66-132.
    Fifth District.
    August 12, 1967.

      John C. Feirich, of Carbondale, for appellant.
    Richard E. Richman, State’s Attorney of Jackson County, of Murphysboro, for appellee.
   EBERSPACHER, J.

The defendant, Ernest “Ned” Higgins, was indicted by the Jackson County Grand Jury for the offense of involuntary manslaughter. A trial by jury followed. At the close of all the evidence, the People tendered and the court gave the jury forms of verdict for the offense of involuntary manslaughter, aggravated battery and battery. The jury returned a single verdict, finding the defendant guilty of the offense of aggravated battery. The court, thereafter, entered judgment on the verdict and sentenced the defendant.

The defendant contends that the verdict must be reversed in that such a verdict was an acquittal for the offense of involuntary manslaughter and battery, and that aggravated battery is not an included offense of involuntary manslaughter. It is the opinion of this court that the theory of the defendant must be sustained.

The indictment charged the defendant with the offense of involuntary manslaughter in the language of the statute. The statute provides that “A person who kills an individual without lawful justification commits involuntary manslaughter if his acts, whether lawful or unlawful, which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly.” Chapter 38, § 9-3(a), Ill Rev Stats 1965. The jury was so instructed.

The court also instructed the jury that “the crime involuntary manslaughter includes the lesser offense of aggravated battery, therefore, if you should find that the evidence in this case is insufficient for a verdict of ‘guilty of involuntary manslaughter,’ then you shall consider the sufficiency of the evidence for a verdict of aggravated battery.” The jury was also instructed that “. . . involuntary manslaughter includes the lesser offense of battery . . .” The jury was then instructed as to the statutory definition of aggravated battery and battery. The statute provides: “A person who in committing a battery intentionally or knowingly causes great bodily harm or permanent disability or disfigurement commits aggravated battery. . . .” Chapter 38, § 12-4, Ill Rev Stats 1965. “A person commits battery if he intentionally or knowingly, without legal justification and by any means (1) causes bodily harm to an individual . . .” Chapter 38, § 12-3, Ill Rev Stats 1965.

For an offense to be a lesser offense, and be included within another offense which is greater, it is necessary that the greater offense include every element of the lesser offense plus other elements. As stated by the Supreme Court in the early case of Prindeville v. People, 42 Ill 217, 220 (1866):

“And, from all the authorities, we are satisfied, that the general rule is, that, where a higher and more atrocious crime fully embraces all of the ingredients of a lesser offense, and when the evidence requires it, the jury may convict of the latter. Where, to convict of the higher offense the prosecutor must prove every fact necessary to constitute the smaller offense, together with the additional fact which makes it the higher offense, before he can have a conviction, then the jury, if the facts warrant it, may convict of the less offense.”

This holding has been reaffirmed in the recent case of People v. King, 34 Ill2d 199, 200, 215 NE2d 224 (1966).

“We agree with defendant that to permit conviction for a lesser offense on an indictment charging only a greater offense, all of the elements of the lesser must be included within the greater. People v. Glickman, 377 Ill 360; Prindeville v. People, supra. This requirement is a substantial one designated to protect the defendant from exposure to double jeopardy.”

Involuntary manslaughter involves not only the additional element of death but a distinctive mental state that is less culpable than that required by aggravated battery. Involuntary manslaughter involves only the mental state of “recklessness” under § 9-3 (a) of the Criminal Code, while aggravated battery under § 12-4 (a) of the Criminal Code involves the mental state of intent or knowledge.

The Criminal Code provides for the particular mental states necessary for the various offenses. A perusal of the Code reveals a variety of mental states differing in degree of culpability for the various offenses. Article 4 of the Code defines these mental states. Section é-4 defines the mental state of “intent”; section 4-5 the mental state of “knowledge” and; section 4-6 the mental state of “recklessness.” As outlined above, the offense of involuntary manslaughter involves the mental state of recklessness. Section 4-6 provides that a person is reckless “. . . when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow described by the statute defining the offense; and such disregard constitutes a gross deviation from the standards of care which a person would exercise in the situation.”

The offense of aggravated battery involves the mental state of intent or knowledge. Section 4-5 provides that a person acts knowingly of “The result of his conduct — when he is consciously aware that such result is practically certain to be caused by his conduct.” A person acts intentionally as provided by section 4-4 “when his conscious objective or purpose is to accomplish that result or engage in that conduct.”

It is apparent from these definitions that offenses involving the mental state of “intent” or “knowledge” requires a higher degree of mental culpability than an offense involving the mental state of “recklessness.” “Recklessness” is a mental state involving criminal liability of a degree below that of intent or knowledge. To act recklessly falls short of acting intentionally. People v. Ford, 56 Ill App2d 153, 206 NE2d 105 (1965). The offender may act recklessly but without the intent to inflict injury or death and still be guilty of involuntary manslaughter. Involuntary manslaughter is an offense which happens without the intent to inflict injury and death results from acts performed recklessly. People v. Johnson, 54 Ill App2d 27, 36, 203 NE2d 283 (1964).

The closest case in Illinois, involving facts substantially similar to those in the case at bar, is the case of People v. Asbury, 272 Ill 571, 112 NE 289 (1916). In that case, the defendant was indicted for manslaughter. After the evidence was heard, the court instructed the jury that the greater offense of manslaughter included the lesser offense of assault with a deadly weapon with intent to inflict bodily harm. The defendant was convicted of the greater offense of manslaughter and not on the lesser offense of assault with a deadly weapon. The Supreme Court affirmed the conviction on the greater offense, (not on the lesser as here), but in so doing had this to say about the instruction relating to the lesser offense, at page 576 of the opinion:

“This instruction was wrong. The offense of manslaughter, wherein the intent is not necessary to the crime, does not include the offense of assault with a deadly weapon with intent to inflict bodily injury, wherein the intent is essential. It should not have been given, but it did no injury to the defendant. He was not found guilty of the lesser offense.”

Accordingly, to instruct the jury that aggravated battery was a lesser and included offense within involuntary manslaughter was error. The mental state which is an element of the specific offense of involuntary manslaughter involves less criminal liability than the mental state prescribed for aggravated battery.

The People contend that the defendant’s objection to the instruction cannot be considered by this court because defendant’s counsel did not properly raise the objection during the instruction conference nor in his motion for a new trial. The record discloses that defendant’s counsel did object to the instructions at both the instruction conference and in his motion for a new trial, although the nature of his objection is vague.

Even if there is a question of proper preservation of error, the nature of the error in the present case requires review. While courts of review normally decline to consider alleged errors where no objection thereto was made during trial or in the written post-trial motions, they do not hesitate to do so where fundamental fairness so requires. People v. Sprinkle, 27 Ill2d 398, 399, 189 NE2d 295 (1963); People v. Cage, 34 Ill2d 530, 534, 216 NE2d 805 (1966).

Having arrived at the conclusion that the verdict of guilty for aggravated battery must be set aside, we are faced with final disposition of the case. Here, although the indictment was of only one count — that of involuntary manslaughter, we hold the language of People v. Potts, 403 Ill 398, 86 NE2d 345, to be applicable. There the court, at page 404 said:

“The next proposition advanced by the defendant is that the jury’s failure to make a finding as to count one of the indictment amounts to a finding of not guilty on that count. Counsel for the People confess this to be true, and this court has so held in Thomas v. People, 113 Ill 531.”

The jury’s failure to make a finding as to the involuntary manslaughter indictment amounts to a finding of not guilty as to that offense; the jury also failed to make a finding as to the offense of battery. As a result, the judgment must be reversed without remandment.

This court commends appointed counsel for his diligence in this matter and an excellent brief.

Judgment reversed.

MORAN and GOLDENHERSH, JJ., concur.


author: CRAVEN, P. J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. John Wesley Williams, Defendant-Appellant.
    Gen. No. 10,866.
    Fourth District.
    August 18, 1967.

      Albert E. Hurt, Public Defender, of Decatur, for appellant.
    Basil G. Greanias, State’s Attorney of Macon County, of Decatur (J. Daniel King, Assistant State’s Attorney, of counsel), for appellee.
   CRAVEN, P. J.

The defendant was indicted for theft of property in excess of $150 value. A jury trial resulted in a verdict of guilty and the defendant was sentenced to a term of not less than two nor more than ten years in the state penitentiary. This appeal is from that conviction.

It is here urged that error was committed in the trial court in permitting certain witnesses to testify whose names were not endorsed on the indictment, that the evidence was insufficient to convict and that there was error in the giving and refusing of instructions.

Two names of witnesses were endorsed on the indictment. Nine witnesses were permitted to testify for the People at the time of the trial. The seven not endorsed on the indictment were objected to on the grounds that section 114-9 of chapter 38, Ill Rev Stats 1965, should be construed so as to limit the prosecution to the testimony of only those witnesses endorsed on the indictment. That statute provides:

“(a) On motion of the defendant the court shall order the State to furnish the defense with a list of prosecution witnesses and their last known addresses.
“ (b) The court may permit witnesses not named in an original or amended list to testify when the names of the additional witnesses were not known and could not have been obtained by the exercise of due diligence prior to trial.
“ (c) The requirements of subsection (a) of this Section shall not apply to rebuttal witnesses.”

The prior statute, former section 729 of chapter 38, as the Committee Comments state, was substantially similar to the present law except that it was applicable only to felonies. The present statute, like its predecessor, has as its purpose the requirement that the State furnish the accused with a list of witnesses in order to prevent surprise and in order to enable the defendant to combat false testimony. See People v. Quevreaux, 407 Ill 176, 95 NE2d 62 (1950), as to the prior statute. In People v. Brown, 68 Ill App2d 17, 214 NE2d 465 (2nd Dist 1966), the court held that there must be a showing of surprise or prejudice before the action of the trial court in permitting testimony of unlisted witnesses to testify would be reversed under the existing statutory language.

In this case the defendant made no demand for a list of witnesses as contemplated by the quoted section of the Code of Criminal Procedure. He sought no continuance but did interview some of the witnesses prior to their testimony. It is argued here that by listing two witnesses on the indictment the defendant was entitled to anticipate that no other witnesses would be called. We do not agree. Section 114-9 affords the defendant a means of obtaining a list of prosecution witnesses. Error in permitting testimony of unlisted witnesses cannot be urged in the absence of a showing that the statutory machinery to obtain a list of witnesses has been utilized, and even then a prerequisite for error is the necessity for showing surprise or prejudice. See People v. Webb, 60 Ill App2d 365, 208 NE2d 639 (1st Dist 1965); People v. Poland, 22 Ill2d 175, 174 NE2d 804 (1961).

The defendant urges error in the giving and refusing of instructions but submits an abstract that does not contain all of the given and refused instructions. Only three given instructions and two refused instructions are abstracted. Such an abstract is insufficient to present the issue of the validity of the instructions since it is elemental that the instructions will be construed as a series, and we cannot examine one or two isolated instructions to determine the question of whether or not the jury was adequately or erroneously instructed. See People v. Donald, 29 Ill2d 283, 194 NE2d 227 (1963), and cases there cited. Our examination of this record, however, and all of the instructions as a series establishes that the jury was properly instructed.

Finally, the defendant contends that the evidence is not sufficient to support the jury verdict of guilty. A determination of this issue requires an examination of the evidence.

The defendant was charged with the theft of an electric power transformer. An employee of the Illinois Power Company, owner of the transformer, testified that on July 25, 1966, he examined an electrical power transformer substation in which three transformers were stored. One of the transformers was missing. The lock on the gate of a chain link fence surrounding the substation was missing, and upon investigation he discovered the casing of the missing transformer outside the substation area but the transformer was minus the core. Another inspection the following day disclosed that another transformer was then missing, casing and core.

Another employee of the power company testified that in the early afternoon of July 26, 1966, he went to the defendant’s residence and observed the defendant and the missing transformer which he identified. The core was then being cut up by the defendant in the yard of his residence. A Ford station wagon and a homemade trailer were also in the back yard.

Two boys playing in the vicinity of the substation testified to having seen the defendant on the premises of the substation working on a transformer which was on the ground. They were attracted to the scene when the defendant was observed by them to be cutting on the chain link fence. They refused the defendant’s offer of five cents if they would not tell anyone of his presence at the substation and would help him load the transformer. A neighbor saw a drum on a trailer in the defendant’s yard. Inquiry by him as to the nature of the object and where the defendant obtained it brought a response from the defendant that he obtained the “drum” from the city dump. The neighbor also observed the defendant cutting on this object.

Other testimony by police officers, essentially cumulative, was to the effect that they observed the defendant cutting copper wire from the core of a transformer in his yard. The defendant was a junk dealer.

The defendant testified regarding the acquisition of the transformer, his testimony being that the transformer fell from a truck which he observed stopped on the highway, and that the transformer was given to him and at his expense loaded onto his vehicle by a tow truck with a winch.

The finding of guilty by the jury on the basis of the above and foregoing evidence is, in our view, amply supported by the evidence. We cannot say that there was a failure to establish guilt beyond a reasonable doubt.

The judgment of the circuit court of Macon County is accordingly affirmed.

It is appropriate here to make a procedural observation. Supreme Court Rule 612, relating to appeals in criminal cases, incorporates by reference Rule 341 as applicable to appeals in civil cases. The appellant’s brief is to contain a statement of facts necessary to an understanding of the case without argument or comment. The brief of the appellee need contain no statement of facts except to the extent that the presentation by the appellant is deemed unsatisfactory. In either case, the statement of facts is to be objective and without argument or comment. The brief of the appellee in this case offends against this requirement. Seven pages of the twenty-page brief are devoted to the statement of facts. It is not clear in what respect he asserts the appellant’s brief is deficient as to the statement of facts. In any event, the appellee’s statement of facts is neither objective nor without comment. Rather, he divests himself of his inventory of adjectives.

While it may be that the material set forth in the statement of facts could have been appropriately placed in the argument portion of the brief, a following of the rules as to briefs is to be encouraged.

Judgment affirmed.

SMITH and TRAPP, JJ., concur.


author: MR. PRESIDING JUSTICE DAVIS

text:
    Lena L. Ziegler, as Administrator of the Estate of Donald E. Ziegler, and Lena L. Ziegler, Individually, Appellant, v. Lucille M. Smith, Appellee.
    Gen. No. 67-22.
    Second District.
    August 22, 1967.

      O’Brien, Burnell, Puckett and Barnett, of Aurora, and Don Schumacher, of Hinckley, for appellant.
    Fearer and Nye, of Oregon, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

This is an action brought by Lena L. Ziegler, individually and as Administrator of the Estate of Donald E. Ziegler, deceased (her husband), seeking damages for his wrongful death and for funeral expenses. The jury returned a verdict for the defendant, Lucille M. Smith. The trial court entered judgment on the verdict and the plaintiff appealed.

The plaintiff contends that a certain remark made by defense counsel in his closing argument and two instructions given on behalf of the defendant, constitute reversible error.

The decedent, Donald E. Ziegler, was struck and killed on December 3, 1965, while carrying hay off the highway. Some bales of hay previously had fallen from his pickup truck onto the westbound traffic lane of Perry Road, a well-traveled blacktop road. Ziegler turned his truck around, drove back to where the hay had fallen and parked his truck partially on and partially off the south side of the road, preparatory to picking up the hay.

Arthur Stiegleiter, a witness to the accident, was driving in the westbound lane of Perry Road between the time when the hay fell off the truck and when the decedent had returned to pick it up. Stiegleiter’s daughter was in the car with him. He did not see the bales of hay on the road in time to avoid hitting them and struck one bale which was in the center of the westbound lane.

There was an incline in the road from the east to the spot where the bales had fallen; then there was a slight leveling off toward the crest of the incline; and a decline as the road continued westerly. The road was marked to indicate a no-passing zone for the westbound traffic as it approached the spot in question. Stiegleiter testified that he didn’t see the hay until his headlight beams dropped down over the crest of the hill; and that he didn’t pull out into the eastbound lane of traffic since he couldn’t see whether any eastbound cars might be coming up the hill. When he hit the bale of hay, it loosened or broke and hay flew over the road. Stiegleiter drove onto the next crossroad, examined his car, and then returned to the scene to remove the remaining bales of hay from the road.

The decedent was already there when Stiegleiter returned to the scene. Stiegleiter parked his car behind the decedent’s pickup truck. Both vehicles were on the south or eastbound side of the road, mostly on the shoulder, with their headlights on, facing the oncoming westbound traffic. It was approximately 5:15 p. m., and it was dark.

The defendant then approached the scene, driving an Oldsmobile car in a westerly direction, at approximately forty to fifty miles per hour. Her headlights were on. She testified that she saw the two stopped vehicles and two people standing next to the Stiegleiter car, but at no time did she see anyone in her lane of traffic; that she was about even with the two vehicles when she heard a thud on the right side of her vehicle; and that she later learned she had hit the decedent.

Stiegleiter testified that the decedent, at the time, was picking up hay in the westbound lane; that he (Stiegleiter) first saw the defendant’s approaching headlights when they were about fifty to seventy-five feet away; that he yelled to the decedent to watch out; and that the decedent — who had his arms full of hay and had started toward the truck — then looked in the direction of the approaching car and started for the north side of the road but was struck before he got off the westbound lane of traffic.

In the course of the closing arguments, plaintiff’s counsel said: “Obviously, if she struck somebody they are going to be killed. That’s just what happened.” Defense counsel, in reply, referred to plaintiff’s argument and said: “Now, taking Mr. Puckett’s argument, you would say or you might say that Mrs. Smith is a killer.” We agree with the plaintiff that this argument was improper, and that the trial court should have sustained the objection thereto. The word “killer” has a sinister connotation and could prejudice a jury. However, the question remains whether or not this impropriety was sufficiently prejudicial to warrant a reversal. We will consider that question along with the errors alleged regarding the instructions.

The plaintiff claims that the following instruction, given at defendant’s request, was erroneous:

“There was in force in the State of Illinois at the time of the occurrence in question a certain Statute which provided that: No vehicle shall be driven or moved on any highway unless such vehicle is so constructed or loaded as to prevent any of its load from dropping, sifting, leaking or otherwise escaping therefrom, except that sand may be dropped for the purpose of securing traction, or water or other substance may be sprinkled on a roadway in cleaning or maintaining such roadway.
“No person shall operate on any highway any vehicle with any load unless said load and any covering thereon is securely fastened so as to prevent said covering or load from becoming loose, detached, or in any manner a hazard to other users of the highway. If you decide that a party violated this Statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not a party was contributorily negligent before and at the time of the occurrence.”

The plaintiff contends that there was no evidence that the decedent’s truck was loaded in a manner violative of the statute. Stiegleiter testified, however, that the decedent told him it was his (the decedent’s) hay. We believe that such statement and the other factual circumstances of record, offer a sufficient basis to permit the jury to.infer that the bales of hay fell off the decedent’s truck which was loaded in such a manner as to permit part of its load to fall upon the highway. We cannot say that the instruction was without any evidentiary basis and that the defendant was not entitled to have the jury instructed on this theory of his case.

The violation of a statute may constitute contributory negligence. Bonnier v. Chicago, B. & Q. R Co., 2 Ill2d 606, 612, 613, 119 NE2d 254 (1954). Whether or not the statute was violated, and if so, whether such violation in this case constituted contributory negligence, was properly a jury question to be considered with all other facts of the case, as was the question of whether such negligence proximately contributed to the decedent’s subsequent injury and death. Bonnier v. Chicago, B. & Q. R Co., supra, 613; American Nat. Bank & Trust Co. v. Pennsylvania R. Co., 52 Ill App2d 406, 423, 202 NE2d 79 (1964); Miller v. Burch, 254 Ill App 387, 395 (1929).

The plaintiff also complains of the following instruction, given at defendant’s request :

“There was in force in the State of Illinois at the time of the occurrence in question a certain Statute which provided that: Whenever any motor vehicle of the second division is disabled during the period between sunrise and sunset and such vehicle cannot immediately be removed from the main traveled portion of a highway outside of a business or residential district, the driver or other person in charge of such vehicle shall cause such red warning flags to be placed upon the way, one at a distance of approximately 200 feet in advance of such vehicle and one each at a distance of approximately 200 feet and 100 feet respectively to the rear of the vehicle. Whenever any motor vehicle of the second division is disabled during the period between sunset and sunrise and such motor vehicle cannot immediately be removed from the main traveled portion of a highway outside of a business or residential district, the driver or other person in charge of such vehicle shall cause such flares, lanterns, red deflectors, or other signals to be lighted and/or placed upon the highway, one at a distance of approximately 100 feet in advance of such vehicle, one at a distance of approximately 100 feet to the rear of the vehicle, and the third upon the roadway side of the vehicle except that if the vehicle is transporting flammables three such red reflectors shall be so placed and no open burning fire shall be placed adjacent to any such last mentioned vehicle. If you decide that a party violated the Statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not a party was contributorily negligent before and at the time of the occurrence.”

We do not find any factual justification for the giving of this instruction. There was no evidence of the pickup truck being disabled and no basis for the instruction. Marut v. Costello, 53 Ill App2d 340, 358, 359, 202 NE2d 853 (1964); Hedge v. Midwest Contractors Equipment Co., 53 Ill App2d 365, 384, 385, 202 NE2d 869 (1964). Nor can we understand how the violation of this statute could constitute contributory negligence under the facts of this case.

There remains the more difficult question of whether the improper argument and instruction are sufficiently prejudicial to warrant us to reverse the verdict of the jury and judgment of the trial court. The plaintiff has cited a number of cases wherein improper argument led to a reversal. In a number of these, the persistence of counsel in continuing with improper comments made obvious the fact that counsel was more concerned with arousing the passions and prejudices of the jury than with having the jury return a verdict based on the facts before it. See: Chicago North Shore & M. R. Co. v. Title & Trust Co., 328 Ill 610, 622-624 incl., 160 NE 226 (1928). We do not mean to imply that counsel must persist in improper argument in order to justify a reversal on that basis, but such persistence indicates the purpose of counsel in his argument and enhances the danger of its prejudicial effect on the jury.

In this case, the record reflects that defense counsel made no attempt to prejudice the jury. The comment was not repeated, and the balance of the argument was well within permitted limits. We do not believe that this statement was prejudicial to the plaintiff. Under the evidence, we can neither conclude that a different result might be expected, absent the improper argument, nor that this impropriety deprived the plaintiff of a substantial legal right which would warrant our reversal of the case. The People v. Stahl, 26 Ill2d 403, 406, 186 NE2d 349 (1962); Styburski v. Riverview Park Co., 298 Ill App 1, 15, 16, 18 NE2d 92 (1938).

In our determination of the case, we reach the same conclusion with reference to the effect of the improper instruction. Our review of the entire record convinces us that the case was fairly tried and that the jury reached a proper verdict under the facts of the case. We do not believe that a retrial could lead to a different result. It was dark at the time of the accident. The road was blacktopped. The incline obstructed the view of approaching vehicles. Stiegleiter confirmed this fact in his testimony when he stated that he did not see the bales of hay until it was too late to avoid them. At the time the defendant approached the scene of the accident, her vision was further impaired by the headlights of the two vehicles which were parked, facing her, on the eastbound traffic side of the road and on the shoulder. This would not cause her to anticipate that a person would be walking on her side of the road.

While we are loathe to affirm a case where there has been an improper argument and instruction, yet under the particular facts of this case, we believe that such action is proper and required. Pitrowski v. New York, C. & St. L. R Co., 6 Ill App2d 495, 501, 128 NE2d 577 (1955); Rithmiller v. Keenan, 3 Ill App2d 214, 221, 121 NE2d 46 (1954); Loucks v. Pierce, 341 Ill App 253, 261, 93 NE2d 372 (1950).

The object of the review of judgments of trial courts is not to determine whether the record is free from error but to ascertain whether a just conclusion has been reached, founded upon competent and sufficient evidence, in a trial in which no error has occurred which might be prejudicial to a litigant’s rights. The People v. Storer, 329 Ill 536, 542, 161 NE 76 (1928); Reske v. Klein, 33 Ill App2d 302, 312, 313, 179 NE2d 415 (1962); Johnson v. Chicago & N. W. Ry. Co., 9 Ill App2d 340, 357, 358, 132 NE2d 678 (1956).

Consequently, the judgment of the trial court is affirmed.

Judgment affirmed.

MORAN and ABRAHAMSON, JJ., concur.


text:
    Jean Eggemeyer, Plaintiff-Appellee, v. Donald Eggemeyer, Defendant-Appellant.
    Gen. No. 67-31.
    Second District.
    August 22, 1967.

      Palmer, Nielsen & Sumberg, of Rockford, for appellant.
    Russell J. Goldman and Roald A. Jacobsen, of Rockford, for appellee.
   MR. PRESIDING JUSTICE DAVIS

This is an appeal from an order entered January 12, 1967, on plaintiff’s petition for the modification of a decree for divorce entered on December 11, 1964, which decree granted the custody of Tammy Renee Eggemeyer to plaintiff and that of Donna Jean and Joni Lynn Eggemeyer to defendant, subject to reasonable rights of visitation in plaintiff and defendant. As of the date of the decree, Donna Jean was 11 years of age; Joni Lynn, 8; and Tammy Renee, 4.

In August of 1966, the plaintiff filed a petition to modify the decree wherein she sought the care, custody and control of Donna Jean and Joni Lynn, and child support for all of said minor children. The defendant filed an answer to this petition which asserted that he had remarried and that he and his present wife were better able to furnish a suitable home for said minor children than was the plaintiff.

By order entered on said petition on September 30, 1966, the court found the defendant in arrears in payment of child support for Tammy in the sum of $665 and directed him to pay the sum of $20 per week for Tammy’s support — as provided in the divorce decree — ■ and to pay an additional sum of $10 per week on the delinquent child support. However, the court, after hearing the evidence, found no change in circumstances since the entry of the decree upon which to predicate a change in the custody of the children awarded to the defendant by the decree; and denied plaintiff’s petition for the modification thereof.

On December 30, 1966, the plaintiff filed a further petition seeking the custody of Donna Jean and Joni Lynn wherein she alleged the defaults of the defendant in paying child support as ordered in the divorce decree; his refusal to comply with the decree visitation provisions ; and her fitness as a custodial parent. She further alleged that the defendant was not capable of managing, supervising and caring for said children and that it was for their best interest that plaintiff be awarded their custody. The defendant filed an answer denying the allegations of the petition; asserting further that no change of conditions had been alleged to justify the modification of the decree for divorce; and stating that he had remarried and that he and his present wife were better able to furnish a suitable home for said children than was the plaintiff.

In the interim, between the date of the divorce decree and the filing of the petition on December 30, various petitions had been filed and heard for rule to show cause on the defendant with reference to his failure to pay child support for Tammy and to honor plaintiff’s visitation rights as provided for in the divorce decree. It was under this background that the December 30 petition came on for hearing. The complaint for divorce, the first petition for change of custody and the December 30 petition, were heard by different trial judges. No appeal was taken from the decree for divorce or from the order of September 30 which denied plaintiff’s petition for change of custody.

The hearing on the December 30 petition was complete and covered the factual circumstances which had occurred from the entry of the decree for divorce to the date of the hearing. The evidence fairly indicated that neither of the parties had made a serious effort to comply with the spirit and letter of the decree relative to the divided custody of the children. The bitterness and conduct of the parties undoubtedly caused the children to experience a maximum of friction and anxiety and a minimum of serenity and freedom from family strife and discord.

The plaintiff lived in an apartment with her mother and Tammy, worked, and hoped to get a better paying job and a three-bedroom apartment in a Government Housing Project in event she was given the custody of Donna Jean and Joni Lynn. The record indicated that she was a proper person to have the custody of the children; that she properly cared for Tammy and loved all of the children; and that she sent them to Church.

The reasons underlying the provisions of the divorce decree which awarded the custody of two of the children to the defendant and one to the plaintiff, were not before this court. It was undisputed that the defendant was delinquent in his child support payments for Tammy in the sum of $535 at the time of the last hearing. The defendant and his present wife testified that they desired to keep the custody of Donna Jean and Joni Lynn; that the two children were in good health, doing reasonably well in school, and had no disciplinary problems ; and that the children got along well with their stepmother, who was then pregnant. The record also indicated that the defendant loved the children; that he and his present wife and the two children lived in a two-bedroom frame house; and that the children attended Church. The record likewise indicated that the defendant was a proper person to have the custody of the children.

On January 12,1967, the court entered an order awarding the care, custody, control and education of all three of the children to the plaintiff, subject to Donna Jean and Joni Lynn staying with the defendant until the conclusion of the semester of school then in session. The order gave the defendant reasonable visitation rights— not here in dispute — and directed him to pay to the plaintiff, as child support, the sum of $15 per week for Donna Jean; $10 per week for Joni Lynn and $10 per week for Tammy, commencing as of the date of the order. On appeal, the defendant prays that this order may be reversed, and the plaintiff’s petition for child custody, denied.

Upon the record before us, we must assume that both the plaintiff and the defendant were fit and competent persons to have the custody of the children. The issues before us are: whether there were changes in the conditions and circumstances of the parties which justified the modification of the decree; and whether the trial court abused its discretion in taking Donna Jean and Joni Lynn from the defendant and in awarding their custody to the plaintiff.

After the divorce decree in the case at bar, the question of the custody of the children remained subject to the order of the court and could be reviewed and modified from time to time as the unfolding circumstances and the best interest of the children may require. Jenkins v. Jenkins, 81 Ill App2d 67, 73, 225 NE2d 698 (1967). The decree was res judicata as to the facts which existed at the time it was entered, but not as to facts arising thereafter. Nye v. Nye, 411 Ill 408, 416, 105 NE2d 300 (1952). In a postdecree hearing to modify the child custody provisions of the decree, the party seeking the modification has the burden of proving altered conditions. Hirth v. Hirth, 59 Ill App2d 240, 242, 207 NE2d 114 (1965); Stern v. Stern, 40 Ill App2d 374, 383, 188 NE2d 97 (1963). Every presumption is indulged in the validity of the decree and if its provisions are to be changed, the burden of proof is on the moving party to show why the change should be made. Hirth v. Hirth, supra, 243; Szczawinski v. Szczawinski, 37 Ill App2d 350, 353, 354, 185 NE2d 375 (1962).

New and changed conditions must arise to warrant the court in changing its prior custody determination. Nye v. Nye, supra, 416. In the case at bar the plaintiff pleaded the failure of the defendant to pay child support payments as ordered by the decree and subsequent orders, as well as his default in making Donna Jean and Joni Lynn available for plaintiff’s visitation as directed in the decree, and she offered proof of such defalcations by the defendant. She pled her fitness as a custodial parent and the inability of the defendant to manage, supervise and care for the children, but she offered no satisfactory proof of the unfitness of the defendant. The defendant neither pleaded nor proved any change in circumstances and conditions upon which the trial court could properly predicate its order changing the custody of Donna Jean and Joni Lynn.

In all matters concerning the custody of children, the paramount issue is their welfare. The fact of changed conditions, in itself, is not sufficient to warrant modification of the custody provisions of the decree, unless such changed conditions affect the welfare of the child or children. Hirth v. Hirth, supra, 244; Arden v. Arden, 25 Ill App2d 181, 186, 166 NE2d Ill (1960).

The new marriage status of the defendant did not constitute sufficient cause to change the custody of the children in question. Upon the record, we find the decision of the trial court against the manifest weight of the evidence.

It is true that the trial court is clothed with a large discretion in child custody matters and a reviewing court is reluctant to interfere with the trial court in its exercise of such latitude of choice. However, in post-decree proceedings for the modification of child custody provisions of the divorce decree, the discretion of the trial court is a judicial discretion limited to the pleadings and proof pertaining to a change in circumstances which affect the welfare of the child, sufficient to warrant the modification of the decree. Szczawinski v. Szczawinski, supra, 353.

Undoubtedly, the contumacy of the defendant in his failure to conscientiously respect plaintiff’s visitation rights and his obdurate refusal to make child support payments, as provided in the decree, as well as the litigiousness of the parties, all contributed in causing the trial court to modify the custody provisions of the decree. However, these circumstances alone do not constitute a change in conditions sufficient to warrant a change in the custody of the children. Jenkins v. Jenkins, supra; Thomas v. Thomas, 233 Ill App 488, 492, 493 (1924).

We do not condone the conduct of the defendant in the respects mentioned and hope and trust that both the plaintiff and the defendant will henceforth let the welfare of the children be the lodestar of their conduct.

If such procedure is not followed, neither party is without a remedy. The trial court has the power to enforce the payment of support money by contempt in cases of wilful and contumacious refusal to obey its orders (Wick v. Wick, 19 Ill2d 457, 461, 167 NE2d 207 (I960)), and it has broad discretion with reference to the modification of visitation privileges of either the plaintiff or defendant with reference to the child or children in the custody of the other. Huberts v. Huberts, 4 Ill App2d 134, 123 NE2d 737 (1955). Further, each postdecree hearing for the modification of child custody must stand on its own facts, as alleged in the petition and proven by competent evidence, with reference to new and changed conditions which would, with reference to the welfare of the child or children, warrant such change.

Section 18 of the Divorce Act (Ill Rev Stats 1965, c 40, par 19) provides that “The court may, on application, from time to time, make such alterations in . . . the care, custody and support of the children, as shall appear reasonable and proper.” The court’s jurisdiction in this respect is exclusive and continuing until the child or children attain their majority, and the decree or order fixing the custody of the child or children is final only as to the conditions then existing. Richton v. Richton, 45 Ill App2d 128, 138, 195 NE2d 265 (1963).

For the reasons stated, the order appealed from is reversed and the plaintiff’s petition for change of custody is denied.

Order reversed and petition for change of custody denied.

MORAN and ABRAHAMSON, JJ., concur.


author: GOLDENHERSH, J.

text:
    Corine Scoggins, Plaintiff-Appellant, v. Village of Hartford, Illinois, a Municipal Corporation, Defendant-Appellee.
    Gen. No. 67-17.
    Fifth District.
    August 15, 1967.

      Hoagland, Maucker, Bernard & Almeter, of Alton (James K. Almeter, of counsel), for appellant.
    Coppinger & Carter, of Alton (John B. Coppinger, of counsel), for appellee.
   GOLDENHERSH, J.

Plaintiff appeals from the judgment of the Circuit Court of Madison County entered in favor of the defendant, Village of Hartford, a municipal corporation, in plaintiff’s action for personal injuries.

Plaintiff’s complaint alleges that she suffered injuries as the result of a fall while walking on a public sidewalk which defendant had negligently permitted to remain in a state of disrepair, although it had notice of its defective and dangerous condition.

In its answer, defendant denied the material allegations of the complaint, and as a “further defense” alleged that plaintiff had executed a release of a party alleged to be a joint tortfeasor and had thereby released any claim she might have against the defendant. Plaintiff moved to strike the “further defense” on the grounds that plaintiff’s injuries were sustained at a place where Illinois Terminal Railroad owed no duty to pedestrians, that defendant was the only tortfeasor whose negligence caused plaintiff’s injuries, and the release given the railroad could not bar plaintiff’s claim against the defendant. The motion was denied, and in her reply plaintiff admitted execution of an instrument purporting to release Illinois Terminal Railroad from any claim as a result of the occurrence complained of, denied that the Railroad is a joint tortfeasor, and stated further: “That the execution of said release was induced by two mutual mistakes of fact, namely, that said railroad company represented and believed that the accident in question occurred outside of the limits of the railroad right-of-way and represented that the nominal payment recited in the release was being made solely to avoid litigation, and the Plaintiff believed such representations and relied thereon; and the Plaintiff and said railroad company believed that Plaintiff’s injuries would be fully cured and healed within six weeks from the date of the accident, whereas in fact said injuries were more serious and extensive than either Plaintiff or said railroad company believed.”

The parties agreed to try the case to a jury, and in the event of a verdict for plaintiff, the issues pertinent to the release were to be tried before the court. The jury returned a verdict in favor of plaintiff in the amount of $8,000.

Subsequently the court heard evidence with respect to the release, held that the release executed by plaintiff released a joint tortfeasor, and barred recovery on the claim asserted against the defendant. The court entered judgment in favor of defendant and this appeal followed.

The evidence shows that the right-of-way of the Illinois Terminal Railroad, 50 feet in width, extends in a general northerly and southerly direction through part of the defendant village. An engineer, called by defendant, fixed the west boundary of the right-of-way as being 25 feet west of the center of the railroad tracks. Hawthorne Street, which runs east and west, intersects the right-of-way. The sidewalk upon which plaintiff was walking is situated on the north side of Hawthorne Street, and crosses the right-of-way from east to west. It had been in continuous use as a public sidewalk for about 35 years. The railroad did not construct, and had never maintained, the sidewalk. Its claim man testified that at this point its maintenance extended only to the end of the ties. The broken area of sidewalk upon which plaintiff bases her charge of negligence extends from a point 10 feet, 7 inches west of the center of the railroad tracks, to a point 24 feet, Í0 inches west of the center of the tracks.

It is not disputed that approximately 10 weeks after plaintiff’s injury, she and her husband, in consideration of the sum of $300, executed a document releasing the Illinois Terminal Railroad from any and all claims arising out of the occurrence.

It also appears that plaintiff had written letters to the defendant and its counsel wherein she advised them of her settlement with the railroad, and expressed the opinion that defendant was liable, along with the Illinois Terminal, for her injuries.

Plaintiff’s first contention is that because the Illinois Terminal Railroad could not have been held liable to plaintiff, plaintiff’s release of a claim against it would not serve to release defendant. Defendant argues that the release of the railroad, an alleged joint tortfeasor, operated to release defendant.

Under the holding of the Supreme Court in McElligott v. Illinois Cent. R. Co., 37 Ill2d 459, 227 NE2d 764, upon the facts in this case, the railroad could not have been held liable for plaintiff’s injuries. The issue here presented is whether a release given a nontortfeasor is subject to the rule applicable to both joint and independent concurring tortfeasors, that the release of one operates to release all. Manthei v. Heimerdinger, 332 Ill App 335, 75 NE2d 132.

This issue was presented and determined in Wagner v. Union Stock Yards & Transit Co., 41 Ill App 408; Western Tube Co. v. Zang, 85 Ill App 63; and Carneghi v. Gerlach, 208 Ill App 340; and was discussed in Tidwell v. Smith, 27 Ill App2d 63, 169 NE2d 157. In line with these decisions we hold that since the Illinois Terminal Railroad could not have been either a joint tortfeasor with defendant, or an independent concurring tortfeasor, but was in fact a nontortfeasor, the release which plaintiff executed did not serve to release the defendant.

Because we have reached this conclusion, we do not discuss plaintiff’s contentions regarding the alleged mutual mistakes of fact.

For the reasons herein set forth, the judgment of the Circuit Court of Madison County is reversed and the cause remanded with directions to reinstate the judgment entered on the verdict.

Judgment reversed and cause remanded with directions.

MORAN and EBERSPACHER, JJ., concur.