dissenting:
I must dissent from the opinion of my colleagues because I believe that the defendants’ third-party complaints against Filker should not have been dismissed for failure to state a cause of action.
As the majority points out, this case was filed prior to the supreme court’s decision in Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 373 N.E.2d 437, which recognized the existence of contribution between joint tortfeasors in the State of Illinois. However, because neither Skinner nor its subsequent codification (Pub. Act 81-601, eff. September 14, 1979), are to be given retrospective application, this case is to be decided under pre-Skinner law.
One of the devices utilized by the courts prior to Skinner to mitigate the harshness of the noncontribution doctrine was the principle of implied indemnification between joint tortfeasors based upon theories of active and passive negligence. “[W]here 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.” Trzos v. Berman Leasing Co. (1967), 86 Ill. App. 2d 176,181, 229 N.E.2d 787, 790.
In the case at bar, both the trial court and the majority conclude on the basis of the pleadings alone that Burlington Northern and Canton’s failure to maintain the crossing constituted active negligence, and that consequently no third-party action could be maintained by them against Filker, the driver of the automobile. I believe, however, that under these facts dismissal of the third-party plaintiffs’ complaints without any evidence having been heard on the issue of active/passive negligence was premature and clearly erroneous. On this point, the following statement made by the court in Sargent v. Interstate Bakeries, Inc. (1967), 86 Ill. App. 2d 187, 200, 229 N.E.2d 769, 775-76, is particularly apropos:
“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 case of Gillette v. Todd (1969), 106 Ill. App. 2d 287,245 N.E.2d 923, fully supports this view. In Gillette, the plaintiff school teacher was injured when Todd, an employee of the defendant Suburban Oil Company, struck her while opening a door in a school building. Gillette subsequently brought a personal injury action against both Todd and Suburban Oil. The defendants then brought a third-party action against the school district, alleging that the injury to the plaintiff was due to the active negligence of the third-party defendant in designing, constructing, and equipping the door which caused the injury. On motion of the school district, the trial court dismissed the third-party action on the grounds that the third-party plaintiffs and third-party defendants were joint tortfeasors, and no contribution could be had.
On appeal, the appellate court affirmed the dismissal of the complaint, finding that the negligence of the original defendants was necessarily active, and they “obviously had no possibility of recovery as against the school district.” (106 Ill. App. 2d 287, 294, 245 N.E.2d 923, 927.) However, Justice Alloy, writing for the majority, then went on to state, “If the original action had been against the school district, and it filed a third-party complaint as against Todd and Suburban Oil, then it would be necessary to hear the evidence to determine if the conduct of the school was active or passive on the basis of the record before us.” (106 Ill. App. 2d 287,294,245 N.E.2d 923,927). This is exactly the situation in the instant case. Taking the facts alleged in Burlington Northern and Canton’s third-party complaints as true, it is clear Filker’s actions constituted active negligence, as it was his physical act which primarily caused the injury to the plaintiff. Had Jackson originally brought a personal injury action against Filker, no third-party action against the railroad for indemnification could be maintained, whether the negligence of the railroad and the city is classified as active or passive. (Gillette; Chicago & Illinois Midland Ry. Co. v. Evans Construction Co. (1965), 32 Ill. 2d 600, 208 N.E.2d 573). However, the plaintiff’s original action was not against Filker, but against Burlington Northern and the City of Canton which then brought a third-party action against the driver. Following Gillette I believe that evidence must be heard before the third-party plaintiffs’ conduct can be classified as either active or passive on these facts. To dismiss the third-party plaintiffs’ complaints without hearing evidence, when on its face it shows a possibility of recovery, was erroneous. Trzos.
I would reverse the order of the circuit court dismissing Burlington Northern and Canton’s third-party complaints for indemnification, and remand this cause with directions to the circuit court to reinstate the third-party plaintiffs’ complaints.