dissenting:
Today we have buried a great body of Illinois law. Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, Dunham v. Vaughan & Bushnell Manufacturing Co. (1969), 42 Ill. 2d 339, Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, Sweeney v. Max A.R. Matthews & Co. (1970), 46 Ill. 2d 64, aff’g 94 Ill. App. 2d 6, Rios v. Niagara Machine & Tool Works (1974), 59 Ill. 2d 79, Peterson v. Lou Bachrodt Chevrolet Co. (1975), 61 Ill. 2d 17, are but samples of Illinois authorities expressing the doctrine of strict liability and its facets which have been implicitly overruled. Also amongst the corpses are those decisions which, consistent with the concept of strict liability, have refused to allow a manufacturer liable under this teaching to pass on its responsibility in whole or in part to a third party. Some of those swept away—and again by implication—are Liberty Mutual Insurance Co. v. Williams Machine & Tool Co. (1975), 62 Ill. 2d 77, Sorrentino v. Waco Scaffolding & Shoring Co. (1976), 44 Ill. App. 3d 1055, Vassolo v. Comet Industries, Inc. (1975), 35 Ill. App. 3d 41, Kossifos v. Louden Machinery Co. (1974), 22 Ill. App. 3d 587, Stanfield v. Medalist Industries, Inc. (1974), 17 Ill. App. 3d 996, Burke v. Sky Climber, Inc. (1973), 13 Ill. App. 3d 498, aff’d (1974), 57 Ill. 2d 542, and Texaco, Inc. v. McGrew Lumber Co. (1969), 117 Ill. App. 2d 351.
Contribution and indemnity have been commingled as if they were identical. Each is a precept wholly different from the other. Gertz v. Campbell (1973), 55 Ill. 2d 84, and Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, are illustrative of this proposition. These and many other decisions which make up our entire body of law on contribution and indemnity have likewise been overruled.
When established precedents are to be swept aside, it should not be accomplished without at least referring to them. Bold assertions which completely abandon well-established doctrines are never a means of resolution of legal issues.
The majority opinion raises such novel theories as “assumption of risk” by plaintiff’s employer, a noninjured party—a concept unknown to the law in the 140 years of the existence of the doctrine of assumption of risk. The majority’s position fails to face up to the meaning of assumption of risk. It cannot be the basis of a third party action. And the majority fails to show how it could be employed in this context.
So also, misuse by an employer is erroneously termed a defense. But it is part and parcel of plaintiff’s action in strict liability in tort to plead and prove that the product was being used for a reasonably foreseeable purpose. Liberty Mutual Insurance Co. v. Williams Machine & Tool Co. (1975), 62 Ill. 2d 77, 83; Dunham v. Vaughan & Bushnell Manufacturing Co. (1969), 42 Ill. 2d 339, 344; Cronin v. J.B.E. Olson Corp. (1972), 8 Cal. 3d 121, 134, 501 P.2d 1153, 1162, 104 Cal. Rptr. 433, 442; Higgins v. Paul Hardeman Co. (Mo. App. 1970), 457 S.W.2d 943, 948; Restatement (Second) of Torts sec. 402A, Comment h (1965); D. Noel, Manufacturer’s Negligence of Design or Directions for Use of a Product, 71 Yale L.J. 816, 858 (1962).
The majority opinion raises a question overshadowing all others. Has Illinois adopted not a doctrine of comparative negligence, but a doctrine of comparative fault? That such is what the majority stands for is apparent from their statement in Stevens v. Silver Manufacturing Co. (1977), 70 Ill. 2d 41, written by the same author as Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1. Referring to Skinner, the majority in Stevens states: “We held, therefore, that the governing equitable principles required that ultimate liability for plaintiff’s injuries be apportioned on the basis of the relative degree of fault of those whose conduct proximately caused them.” Slip op. at 2.
How can there be a comparison between the manufacturer’s fault and the employer’s fault, when fault is not the question? If the unreasonably dangerous product is put in commerce and is a proximate cause of injury, how can contribution and indemnification on the basis of the employer’s negligence be in proportion to the wrong of a manufacturer?
That strict liability is not based on fault is well recognized. In Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, where this State adopted the doctrine as well as section 402A of the Restatement (Second) of Torts (1965), such considerations as public interest in human life and health, the manufacturer’s solicitations to purchase, and the justice of imposing liability on one who creates the risk and reaps the profit, are described as the motivating forces for the adoption of the doctrine. (See also Liberty Mutual Insurance Co. v. Williams Machine & Tool Co. (1975), 62 Ill. 2d 77, 82; Greenman v. Yuba Power Products, Inc. (1963), 59 Cal. 2d 57, 377 P.2d 897, 27 Cal. Rptr. 697.) Other policy considerations were the ability of the manufacturer to anticipate some hazards and guard against their recurrence, which the consumer cannot do. (Brandenburger v. Toyota Motor Sales, U.S.A., Inc. (1973), 162 Mont. 506, 513-14, 513 P.2d 268, 273; Santor v. A & M Karagheusian, Inc. (1965), 44 N.J. 52, 60, 207 A.2d 305, 312; Restatement (Second) of Torts sec. 402A, Comment c (1965).) Stated otherwise, there was the incentive to the manufacturer to enhance the safety of its product. (Dunham v. Vaughan & Bushnell Manufacturing Co. (1969), 42 Ill. 2d 339, 344; Vandermark v. Ford Motor Co. (1964), 61 Cal. 2d 256, 262, 391 P.2d 168, 171-72, 37 Cal. Rptr. 896, 899-900.) An important consideration was distribution of the cost of injury amongst the public as the cost of doing business. See Greenman v. Yuba Power Products, Inc. (1963), 59 Cal. 2d 57, 63, 377 P.2d 897, 901, 27 Cal. Rptr. 697, 701.
That negligence is not part of this doctrine is pointed out by Suvada v. White Motor Co. (1965), 32 Ill. 2d 612. There, defendant Bendix, strictly liable in tort as a manufacturer of a component part, the brake system, urged that plaintiffs, truck owners, who had paid sums in settlements of claims brought by injured persons as a result of this defective brake system, were joint tortfeasors or actively negligent. This court, in rejecting that argument, took a position directly contrary to that of the majority here, stating:
“Indemnity here is not, however, premised on any theory of active and passive negligence. (To require proof that Bendix was actively negligent would be the antithesis of strict liability.)” 32 Ill. 2d 612, 624.
Under strict liability, responsibility is imposed because of the character of the product, not because of fault. (Bachner v. Pearson (Alaska 1970), 479 P.2d 319, 329; Bollmeier v. Ford Motor Co. (1970), 130 Ill. App. 2d 844, 851.) Under the Restatement of the Law of Torts, it is immaterial that the manufacturer has “exercised all possible care in the preparation and sale of his product.” Restatement (Second) of Torts sec. 402A(2)(a) (1965); Lunt v. Brady Manufacturing Corp. (1970), 13 Ariz. App. 305, 307, 475 P.2d 964, 966.
In Liberty Mutual Insurance Co. v. Williams Machine & Tool Co. (1975), 62 Ill. 2d 77, the insurance company, as subrogee for its insured, Charles Machine Works, the manufacturer of the finished product, sued the defendant, the manufacturer of the defective component part, to recover sums it paid in settlements of claims made against Charles Machine Works. This court observed:
“The major purpose of strict liability is to place the loss caused by defective products on those who create the risk and reap the profit by placing a defective product in the stream of commerce, regardless of whether the defect resulted from the ‘negligence’ of the manufacturer. We believe that this purpose is best accomplished by eliminating negligence as an element of any strict liability action, including indemnity actions in which the parties are all manufacturers or sellers of the product.” (62 Ill. 2d 77, 82.)
The court further quoted from Frumer’s and Friedman’s excellent work on products liability (2 L. Frumer 8c M. Friedman, Products Liability sec. 16A(4)(b)(i)):
“As one authority has observed: ‘In many jurisdictions, the right of contribution between joint tortfeasors is denied if they are at equal fault, but not denied if the tortfeasor seeking contribution was only passively negligent. The difficulty of applying this test to strict liability cases is that negligence is irrelevant for determining liability. It is a liability based upon the placing into commerce of a product which, if defective, is likely to be unreasonably dangerous under normal use.’ ”
(Emphasis added.) 62 Ill. 2d 77, 82.
Contributory negligence on the part of the user is not an issue. (Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, 423.) It should be crystal clear that negligence or any other concept of fault is anathematic to the tenets of strict liability.
California, by judicial fiat, adopted comparative negligence in Li v. Yellow Cab Co. (1975), 13 Cal. 3d 804, 532 P.2d 1226, 119 Cal. Rptr. 858. In its modified opinion, the California Supreme Court was careful to delimit the meaning of the word “fault.” In a footnote it stated: “In employing the generic term ‘fault’ throughout this opinion, we follow a usage common to the literature on the subject of comparative negligence. In all cases, however, we intended the term to import nothing more than ‘negligence’ in the accepted legal sense.” (13 Cal. 3d 804, 813 n.6a, 532 P.2d 1226, 1232 n.6a, 119 Cal. Rptr. 858, 864 n.6a.) The significance of this was, according to one authority (V. Schwartz, Comparative Negligence in California, Li v. Yellow Cab Co.: A Survey of California Practice Under Comparative Negligence, 7 Pac. L.J. 747, 756 (1976), that “the court was careful not to venture into the land of strict liability.” We agree that such could be the only meaning to be given the modification by a court which not only pioneered but treated more aspects of the doctrine of strict liability in tort than any court.
It is clear that the objectives of the doctrine are to protect the consumer and to make responsible the manufacturers who put in commerce unreasonably dangerous products which cause injury. If these goals are to be accomplished, ultimate liability for injury from the defective product must rest on the manufacturer. Thus, liability has been permitted to flow from the retailer (Vandermark v. Ford Motor Co. (1964), 61 Cal. 2d 256, 391 P.2d 168, 37 Cal. Rptr. 896) to reach the manufacturer or from the manufacturer of the defective product to the manufacturer of the component part which made the finished product defective (Liberty Mutual Insurance Co. v. Williams Machine & Tool Co. (1975), 62 Ill. 2d 77).
These were the compelling reasons why the obligation to produce a reasonably safe product was made nondelegable. (Rios v. Niagara Machine & Tool Works (1974), 59 Ill. 2d 79, 85; Bexiga v. Havir Manufacturing Corp. (1972), 60 N.J. 402, 410, 290 A.2d 281, 285; Vandermark v. Ford Motor Co. (1964), 61 Cal. 2d 256, 262, 391 P.2d 168, 171, 37 Cal. Rptr. 896, 899.) Nondelegable means that the obligation cannot be transferred to others.
It would frustrate the intent of strict liability to permit the manufacturer of the unreasonably dangerous, injury-causing product to pass on his liability to another so that the maker might either be indemnified or obtain some contribution.
The majority opinion treats strict liability as if the manufacturer’s responsibility were predicated upon negligence concepts. All cases and surveys referred to in the majority opinion to support its position involve negligent tortfeasors. Dole v. Dow Chemical Co. (1972), 30 N.Y.2d 143, 282 N.E.2d 288, 331 N.Y.S.2d 382, the only products case cited, was an action predicated against the manufacturer on negligence, not strict liability. Plaintiff’s action there was against a chemical company for negligently labeling a fumigant used by an employer. The manufacturer’s third-party action against the employer was for breach of an independent duty owed plaintiff.
The majority fails to address another threshold question. How can the employer, who cannot be termed a tortfeasor, be sued for apportionment of damages in the nature of contribution or indemnity?
The employer has an absolute liability, irrespective of negligence. The employee’s action against the employer is for benefits fixed by section 5 of the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.5). The employee’s action against the third party is for common law damages. It would appear obvious that the difference in character between the two cannot result in a common liability. Even the Uniform Contribution Among Tortfeasors Act defines the joint tortfeasor as a person jointly or severally “liable in tort.” (Uniform Contribution Among Tortfeasors Act sec. 1(a).) Prosser states: “The contribution defendant must be a tortfeasor, and originally liable to the plaintiff. If there was never any such liability, *** then he is not liable for contribution.” Prosser, Torts sec. 50, at 309 (4th ed. 1971).
It is indispensable in the law of contribution that there be a right of action in tort against both parties, the one seeking contribution and the party from whom contribution is sought. (William H. Field Co. v. Nuroco Woodwork, Inc. (1975), 115 N.H. 632, 348 A.2d 716; Cacchillo v. H. Leach Machinery Co. (1973), 111 R.I. 593, 305 A.2d 541; Grove Manufacturing Co. v. Cardinal Construction Co. (Tex. Civ. App. 1976), 534 S.W.2d 153; 2A A. Larson, Workmen’s Compensation sec. 76.21 (1976 & Supp. 1977).) Contribution is a derivative of the plaintiff’s cause of action; it is not a new right of action. Grove Manufacturing Co. v. Cardinal Construction Co. (Tex. Civ. App. 1976), 534 S.W.2d 153; William H. Field Co. v. Nuroco Woodwork, Inc. (1975), 115 N.H. 632, 348 A.2d 716.
Since the employee under a workmen’s compensation act has no tort action against his employer, the employer is not a joint tortfeasor with the third party liable to the employee in tort. He does not share a common liability. (William H. Field Co. v. Nuroco Woodwork, Inc. (1975), 115 N.H. 632, 348 A.2d 716; Cacchillo v. H. Leach Machinery Co. (1973), 111 R.I. 593, 305 A.2d 541; Grove Manufacturing Co. v. Cardinal Construction Co. (Tex. Civ. App. 1976), 534 S.W.2d 153; Kessler v. Bowie Machine Works, Inc. (8th Cir. 1974), 501 F.2d 617 (applying South Dakota law); 2A A. Larson, Workmen’s Compensation sec. 76.21 (1976 & Supp. 1977).) In light of these well-established principles, the employer cannot be subject to contribution. Yet the majority ignores these realities.
The majority’s opinion, whose vulnerability is evidenced by the want of a single authority to support its position, concludes thus:
“We hold that the third-party complaint, although charging negligence, alleges misuse of the product and assumption of risk and states a cause of action for contribution based on the employer’s relative degree of fault which contributed to cause plaintiff’s injuries.” Slip op. at 9.
As I have observed, this is a novel employment of what the majority terms “assumption of risk.” In strict liability actions, assumption of risk is an affirmative defense by the manufacturer or retailer against the injured user only. To assert such defense, the manufacturer must allege and prove that the plaintiff was aware of the product’s dangerous nature, that he continued to use the product despite such knowledge, and that this assumption of risk was the proximate cause of his injuries. (Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, 430; Sweeney v. Max A.R. Matthews & Co. (1970), 46 Ill. 2d 64, 66 aff’g 94 Ill. App. 2d 6; see Scott v. Dreis & Krump Manufacturing Co. (1975), 26 Ill. App. 3d 971, 990; Ferraro v. Ford Motor Co. (1966), 423 Pa. 324, 327, 223 A.2d 746, 748; Restatement (Second) of Torts sec. 402A, Comment n (1965).) The test in true assumption of risk cases is subjective. (Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, 430.) It is whether the particular person knew or ought to have known of the defect, and nonetheless, having knowledge of the dangers which would result from the use of the product, embarked upon its employment. Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, 423.
Assumption of risk first developed in master and servant cases. It has now been abrogated by the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.1 et seq.). It appeared on the scene in 1837 in Priestly v. Fowler (Exch. 1837), 3 Mees. & W. 1, 150 Eng. Rep. 1030, 19 Eng. Rul. Cas. 102. In 1953, Mr. Justice Black described it thus:
“Perhaps the nature of the present problem can best be seen against the background of one hundred years of master-servant tort doctrine. Assumption of risk is a judicially created rule which was developed in response to the general impulse of common law courts at the beginning of this period to insulate the employer as much as possible from bearing ‘human overhead’ which is an inevitable part of the cost—to someone—of the doing of industrialized business.” Tiller v. Atlantic Coast Line R.R. Co. (1943), 318 U.S. 54, 58, 87 L. Ed. 610, 613, 63 S. Ct. 444, 447.
Assumption of risk is today limited in negligence actions to situations where a contractual relationship exists. Barrett v. Fritz (1969), 42 Ill. 2d 529, 533-34.
Yet, never since 1837 has assumption of risk been the basis of an original action. Assumption of risk is by its nature a defense in an action by an injured person, be it assumption of risk as it is known in common law negligence or in strict liability in tort. Nor are we told by the majority opinion how assumption of risk can be the basis of an action against a third party.
An examination of the third-party complaints in these cases reveals much. In Skinner, the manufacturer alleged that in 1959 it had fabricated the particular machine, and that between that date and August 3, 1972, the date of the occurrence, the machine had been sold and resold to successive users. It further urged that the unreasonably dangerous character of the machine was caused by the third-party defendant, as well as the intervening owners. Obviously, these facts, if true, constituted a defense to the original action. The product must be substantially in the same condition at the time it causes injury as at the time it left the manufacturer’s possession, and, at the time of the injury, it must have been used for a reasonably foreseeable purpose if liability is to attach to the manufacturer.
The third-party complaint alleges that plaintiff’s injuries resulted from a combination of the conduct of both defendants, so that they were co-tortfeasors. As we have seen, the manufacturer’s liability arises not from his conduct but from putting into commerce an unreasonably dangerous product. Nor, as has been pointed out, can an employer be a co-tortfeasor under the Workmen’s Compensation Act.
In Stevens v. Silver Manufacturing Co. (1977), 70 Ill. 2d 41, the manufacturer urged that it was not liable to the user because it was without knowledge of the use to which the machine was put, and, specifically, that a mentally retarded person might be employed to use it. It further alleged that it was the employer’s duty to use care in the operation of the machine, and that its liability was secondary to that of the employer. Partial indemnification was sought. Obviously, the manufacturer was chargeable with all foreseeable uses of the product, and its liability cannot be passive. Active and passive care concepts háve no relevancy here. When tortfeasors are each chargeable with active or affirmative negligence, as is the case here, total indemnification is never permissible. (41 Am. Jur. 2d Indemnity sec. 21 (1968).) Under the theory of the majority, the third-party complaint could not be maintained.
In Robinson v. International Harvester Co. (1977), 70 Ill. 2d 47, the manufacturer, which sold a product without safety devices, sought indemnification from an employer for purchasing a product in this condition. Obviously, putting into commerce an article without safety devices is a violation of the manufacturer’s nondelegable duty. (Bexiga v. Havir Manufacturing Corp. (1972), 60 N.J. 402, 290 A.2d 281.) It is a classical violation of the duty imposed by the strict liability teaching.
To arrive at its conclusion, the third-party complaints have been rewritten by the majority so as to state the theme of the opinions.
I am realistic enough to know that in every instance where an employee is injured, the manufacturer of a defective injury-causing product, to avoid liability or spread the risk, will charge the employer with multiple aspects of negligence. The negligence may be in failing to instruct the employee as to the use of the product or in not having an adequate number of persons engaged in the operation in which the product was employed. Again, it may be in not inspecting the product for defects, although such inspection is not required under the doctrine of strict liability. (Restatement (Second) of Torts sec. 402A, Comment n (1965); Sweeney v. Max A.R. Matthews Co. (1968), 94 Ill. App. 2d 6, 21, aff’d (1970), 46 Ill. 2d 64.) Or it may be in buying a machine which the manufacturer saw fit to sell without protective components as was the case in Robinson v. International Harvester Co. (1977), 70 Ill. 2d 47. Yet this is but an example of putting into commerce an unreasonably dangerous product. The aspects of negligence which the fertile mind of the skilled trial lawyer will conjure are countless.
It has been estimated that 85% of all products liability suits come from products employed in work-related situations. (Insurance Co. of North America, Products Liability: Some Professional Considerations, Booklet H H—8306—3 (1976), INA Corp., Philadelphia.) The manufacturer who puts in commerce an unreasonably dangerous injury-causing product and who, under this strict liability doctrine, was to bear the cost of injury, now has an escape hatch. He is the employer. This is the party who is to contribute or to indemnify. Indemnification, of course, means absorption of the entire loss. Yet how can transition to the employer of the manufacturer’s liability be consistent with the compelling reasons for the teaching? I refer to imposition of liability on the profit-maker, distribution of the cost of injury among the public as a cost of doing business, and the incentive for safer products.
What about the Workmen’s Compensation Act, which, in return for a guarantee of protection to the employee for work-related injuries, immunized the employer against common law actions? Ill. Rev. Stat. 1975, ch. 48, par. 138.5(a).
Section 5(a) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.5(a)) provides:
“(a) No common law or statutory right to recover damages from the employer [or] his insurer *** for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act ***.”
Larson (2A A. Larson, Workmen’s Compensation sec. 76.21 (1976 & Supp. 1977) states: “The great majority of jurisdictions have held that the employer whose concurring negligence contributed to the employee’s injury cannot be sued or joined by the third party as a joint tortfeasor, whether under contribution statutes or at common law.” This proposition is found in many jurisdictions. Alaska: Golden Valley Electric Association, Inc. v. City Electric Service, Inc. (Alaska 1974), 518 P.2d 65; Connecticut: A.A. Equipment, Inc. v. Farmoil, Inc. (Super. Ct. Hartford County 1974), 31 Conn. Supp. 322, 330 A.2d 99; Georgia: Georgia Power Co. v. Diamond (1973), 130 Ga. App. 268, 202 S.E.2d 704; Hawaii: Kamali v. Hawaiian Electric Co. (1972), 54 Hawaii 153, 504 P.2d 861; Iowa: Iowa Power & Light Co. v. Abild Construction Co. (1966), 259 Iowa 314, 144 N.W.2d 303; Louisiana: LeJeune v. Highlands Insurance Co. (La. App. 1973), 287 So. 2d 531, aff’d (1974), 290 So. 2d 903; Maryland: Baltimore Transit Co. v. State (1944), 183 Md. 674, 39 A.2d 858; Michigan: Husted v. Consumers Power Co. (1965), 376 Mich. 41, 135 N.W.2d 370; New Hampshire: William H. Field Co. v. Nuroco Woodwork, Inc. (1975), 115 N.H. 632, 348 A.2d 716; New Jersey: Ruvolo v. United States Steel Corp. (1975), 133 N.J. Super. 362, 336 A.2d 508; Nevada: Outboard Marine Corp. v. Schupbach (1977), 93 Nev. 158, 561 P.2d 450; North Carolina; Hunsucker v. High Point Bending & Chair Co. (1953), 237 N.C. 559, 75 S.E.2d 768; Ohio: Bankers Indemnity Ins. Co. v. Cleveland Hardware & Forging Co. (1945), 77 Ohio App. 121, 62 N.E.2d 180, appeal dismissed (1945), 145 Ohio St. 615, 62 N.E.2d 251; Rhode Island: Cacchillo v. H. Leach Machinery Co. (1973), 111 R.I. 593, 305 A.2d 541; South Dakota: Kessler v. Bowie Machine Works, Inc. (8th Cir. 1974), 501 F.2d 617 (applying South Dakota law); Tennessee: Dawn v. Essex Conveyors, Inc. (6th Cir. 1974), 498 F.2d 921 (applying Tennessee law); Washington: Montoya v. Greenway Aluminum Co. (1974), 10 Wash. App. 630,519 P.2d 22; Wisconsin: A. O. Smith Corp. v. Associated Sales & Bag Co. (1962), 16 Wis. 2d 145, 113 N.W.2d 562.
It has been stated: “Products that don’t work as they should, which now rival automobile accidents as the nation’s No. 1 cause of litigation, were responsible for an estimated 500,000 court cases last year, compared with 100,000 five years ago, and many expect the annual total to reach 1,000,000 by 1985.” Wall Street Journal, Nov. 3, 1972, at 1, col. 6.
Our workmen’s compensation rates are now the highest in Illinois history. A claim for the death of a husband and father earning $20,000 annually, leaving a widow and four children under 16 years old, runs as high as $250,000 (Ill. Rev. Stat. 1975, ch. 48, par. 138.7).
It is common knowledge that the high cost of workmen’s compensation insurance is driving industry out of this State. (Chicago Daily News, Feb. 25, 1977, at 5, col. 2; Chicago Sun-Times, Feb. 3, 1977, at 115, col. 2; June 11, 1977, at 47, col. 1; June 20, 1977, at 62, col. 1; Chicago Tribune, Feb. 26, 1977, sec. 2, at 7, col. 5; June 11, 1977, at 5, col. 4.) Under the majority concept, the workmen’s compensation premium will be miniscule as compared to the cost of the employer’s insurance for products coverage—if he can get it. On him will be dumped the manufacturer’s liability. And all because a majority of this court believed that the manufacturer should be permitted to pass on his liability to another.
While the majority’s position may appear to demonstrate “kitchen equity,” it clashes with those precepts which govern our actions, those of inferior courts, and last, but certainly not least, those of the litigants. Legal principles are not mere hollow sounds. They create rights, define obligations, and determine the mechanics for the realization of such rights and obligations. Principles, it must never be forgotten, have a pragmatic effect on the law in action. The admissibility of all evidence is determined by principles, common law or statutory, which control the particular action. So also the fact-finder, be it court or jury, is governed by principles in arriving at its conclusion.
The underlying concept of the majority is that equity and fairness dictate its conclusion. Apart from the fact that principles must control, one court, in denying the manufacturer of a defective product indemnity against the employer of injured employees, made these pithy observations:
“It is argued that if indemnity is not allowed the result is manifestly inequitable since the jury found Outboard to be only twenty-five percent at fault while the employers each were found to be thirty-seven and one-half percent at fault. Consequently, as a matter of fairness, the employers should not be insulated completely. Although this contention has some appeal, it is one to be submitted to the legislature rather than to us. To date, the legislature has insulated the contributing employer and has voided indemnity absent an independent duty owing from the employer to the third party.” (Outboard Marine Corp. v. Schupbach) (1977), 93 Nev. 158, 165, 561 P.2d 450, 454.
Many will undoubtedly urge that the contentions of the majority are for the legislature. I only know they are not for us. We must be governed by reason, not sentiment. We have no license to experiment with novel concepts because they might appeal to apersona! sense of justice.
The distinction between contribution and indemnity is ignored by this trio, Skinner, Stevens and Robinson. In two of the cases, Skinner and Stevens, the third-party complaints are treated by this court as seeking contribution or “partial indemnity,” whatever that is. In Robinson, the third-party complaint sought total indemnification.
Contribution is the distribution or the spreading of a loss between two or more persons who are jointly liable for having committed a tort against a third party. In accordance with the general rule, one who is compelled to pay the whole or more than his just share of the loss, upon which several persons are liable, is entitled to contribution against the others from the payment of their respective shares. Phillips-Jones Corp. v. Parmley (1937), 302 U.S. 233, 82 L. Ed. 221, 58 S. Ct. 197; Gottschalk v. Gottschalk (1921), 222 Ill. App. 56; Restatement of Restitution sec. 81 (1937).
Indemnity, on the other hand, shifts the entire loss from one tortfeasor to another who, by express contract or by operation of law, is deemed responsible for making full payment. Chicago & Illinois Midland Ry. Co. v. Evans Construction Co. (1965), 32 Ill. 2d 600, 603; see also Karas v. Snell (1957), 11 Ill. 2d 233, 248.
We have already noted how contribution and indemnity, two distinct concepts, are often confused. See Gertz v. Campbell (1973), 55 Ill. 2d 84, 87; Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 624; W. Prosser, Torts sec. 51, at 310 (4th ed. 1971).
The apparent effect of the majority is to abolish indemnity. “Total indemnification” [Robinson), “partial indemnification” [Skinner and Stevens) and “contribution” are all treated interchangeably.
Absent from the majority opinion is any definition of what constitutes contribution or “partial indemnity.” Wanting also are guidelines for what the court holds. Standards will be impossible to formulate in the absence of some clear definition of the position of the majority other than the abolition of the rule of no contribution. An opinion so wide sweeping in character must offer something constructive. Opened up, but unresolved, are a series of important queries.
What is the status of the tortfeasor who had a right to bona fide indemnity, not contribution? Has this right been impaired? Has the active-passive criterion of implied indemnity been abolished?
What is the effect of the holding upon the Structural Work Act (Ill. Rev. Stat. 1975, ch. 48, par. 60 et seq.)? There are many areas of potential contribution there. To list a few: between owner, general contractor, subcontractor, architect and employer; between general contractor, subcontractor and employer; between owner and architect; and between general contractor and architect. The combination is almost endless.
What about the Dramshop Act (Ill. Rev. Stat. 1975, ch. 43, par. 94 et seq.)? Can there be contribution between the dramshop keeper and the intoxicated person? Can there be contribution between the dramshop operator and the owner of the premises?
Suppose one tortfeasor enters into a settlement with the plaintiff. Is he entitled to recover contribution from other defendants whose liability remains vital, notwithstanding the settlement? Or what about the insurer who discharges the liability of its tortfeasor insured? Is it subrogated to a right of contribution?
What will be the vehicle of apportionment of damages between wrongdoers? Will it be by third-party action, by counterclaim between defendants, by independent actions, or by all such vehicles?
What is the basis of contribution? Will it be according to a payment of more than a pro rata share? Or will it be on the basis of “pure” contribution with the amount of fault being determined at 100%? The majority opinion has an ethereal mystique so that neither judges nor lawyers can know how to give it meaning.
When a court undertakes to announce a new doctrine which is a departure from the past not only in principle but in practice, it would seem it has the obligation to spell out in detail how this new teaching shall be put into practice. See Hoffman v. Jones (Fla. 1973), 280 So. 2d 431, and Li v. Yellow Cab Co. (1975), 13 Cal. 3d 804, 532 P.2d 1226, 119 Cal. Rptr. 858, where the Florida and California Supreme Courts, in adopting by judicial fiat comparative negligence, spelled out in detail how the doctrine shall be applied.
I predict that this trio, Skinner, Stevens and Robinson, will generate a proliferation of much meritless litigation. Every action against the manufacturer or retailer in strict liability in tort will mean another action whereby the manufacturer or retailer will seek “indemnity” or “contribution” against some third party outside the distributive chain, so that the manufacturer’s responsibility may be taken over or at least shared.
Proliferation of such litigation is unwholesome. The trial of a lawsuit against the manufacturer in strict liability, with the manufacturer focusing on the negligence of the employer, will be complex. The manufacturer will use the employer’s negligence as a defense to the original action— the objective of the third-party actions before us. More than that, such litigation will fill the halls of justice with obstacles, make litigation an even rarer luxury, and add additional trial days to a docket already struggling under a near fatal burden.
Like Jefferson, I believe “law and institutions must go hand in hand with the progress of the human mind.” Like Jefferson, I do not believe in deviation from recognized principles for expediency. This is far too violent a wrench in the law.
The effect of the majority’s opinion will be far reaching unless the General Assembly manifests greater wisdom than this court. A statute insulating the employer from all liability to the employee other than for workmen’s compensation benefits, including third-party actions, is needed for the preservation of the employer. He should not be saddled with the responsibilities of the manufacturers.
For these reasons I would affirm the judgments of the appellate courts in Skinner v. Reed-Prentice Division Package Machinery Co., Stevens v. Silver Manufacturing Co., and Robinson v. International Harvester Co.
Mr. Justice Dooley’s dissent is addressed to the majority opinion prior to its modification on March 1, 1978. Mr. Justice Dooley’s untimely death precluded any revision of the dissent.