dissenting:
The active-passive theory of indemnification has been defined as follows: “where one does the act which produces the injury and the other does' not join in the act but is thereby exposed to liability and suffers damage the latter may recover against the principal delinquent, and the law will inquire into the real delinquency and place the ultimate liability upon him whose fault was the primary cause of the injury. [Citations.]” (Griffiths & Son Co. v. National Fireproofing Co. (1923), 310 Ill. 331, 339.) The majority opinion dismisses this appeal because “the third-party plaintiffs, Economy and Goodall, have failed to allege a pretort relationship on which to base their indemnity actions; ***.” (105 Ill. 2d at 469.) I believe both third-party plaintiffs have alleged sufficient pretort relationships to satisfy the pleading requirements for an indemnity action. If, however, they have failed to meet some technical requirement, I would allow them leave to amend their complaints to allege pretort relationships, because they clearly exist.
In Economy Baler’s action, Economy’s relationship to Marshall Field satisfies the requirement the majority finds lacking. Marshall Field purchased the machine directly from Economy, and this seller-purchaser relationship existed prior to the tort. In Campbell v. Joslyn Manufacturing & Supply Co. (1965), 65 Ill. App. 2d 344, the appellate court reversed the circuit court’s dismissal of a third-party action between a manufacturer and the purchaser based on an active-passive theory. Likewise, in SW (Delaware), Inc. v. American Consumers Industries, Inc. (Del. 1982), 450 A.2d 887, the Delaware Supreme Court, while dismissing an action for indemnification, noted that a manufacturer could bring an action for indemnity against a purchaser if the factual situation supported such a theory. (See also Annot., 28 A.L.R.3d 943, 981-87 (1969).) Moreover, the manufacturer-purchaser relationship is indistinguishable in substance from the “classic pretort relationships” of lessor-lessee, employer-employee, owner-lessee and master-servant referred to by the majority. (105 Ill. 2d at 469-70.) Therefore, Economy’s relationship to Marshall Field, alleged in its third-party complaint, satisfies the pretort relationship requirement.
Goodall also had a pretort relationship with Schwerman sufficient to pursue an indemnity action. Goodall produced the rubber hose which ruptured and injured Gunderson. While Goodall’s connection is attenuated by another party (Hi-Way Power and Equipment Corporation), its contractual relationship with Hi-Way, who in turn sold the hose to Schwerman, is a sufficient basis for alleging the duty to indemnify. Just as privity no longer bars an action in contract (see, e.g., Suvada v. White Motor Co. (1965), 32 Ill. 2d 612), Goodall's relationship with Schwerman is a pretort relationship for pleading purposes.
The majority, citing Muhlbauer v. Kruzel (1968), 39 Ill. 2d 226, contends that a pretort relationship is a necessary part of an indemnity action. While I do not dispute the necessity of this requirement, I do not find that Muhlbauer supports the majority’s conclusion that no pretort relationship exists in these cases. In Muhlbauer, no pretort relationship was alleged and it was impossible “to discern potential relationships that would support a duty on the part of Wilson to indemnify Kruzel.” (39 Ill. 2d 226, 232.) Unlike Muhlbauer, these cases allege facts which establish relationships existing prior to the tort.
Likewise, Heinrich v. Peabody International Corp. (1984), 99 Ill. 2d 344, is distinguishable from Economy’s and Goodall’s claims. Heinrich held that a loaned-servant allegation could not be the basis for an indemnity action because the original defendant and the third-party defendant were not both liable to the plaintiff. The court’s decision in that case, which was that the loaned-servant doctrine does not set forth an indemnity theory, dealt with a requirement different from the one at issue in this case. Therefore, I would dissent from the majority’s decision to dismiss this case for lack of a pretort relationship. I would have gone on to decide the second issue presented to this court, that is whether a manufacturer or distributor can maintain an indemnity action against “downstream” parties when the cause of action arises prior to March 1, 1978, the date set by the decision in Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 17.
GOLDENHERSH and RYAN, JJ., join in this dissent.