Mаttie W. Embree brought suit against James D. Gormley for damages resulting from the death of her husband, Waite W. Embree, alleged to have been caused by Gormley’s negligence. DeKalb Forge Company was later joined as a defendant and an amended complaint charging that DeKalb Forge was negligent “by its agent and employee, James Gormley” was filed.
DeKalb Forge thereаfter filed a counterclaim against its employee, Gormley. By its counterclaim, DeKalb Forge sought to be indemnified by Gormley for any judgment which the plaintiff might obtain against it. Gormley filed a motion to dismiss the counterclaim on the ground that it stated no present cause of action, but only a possible future right of action for indemnity which is contingent upon the outcome of the thеn pending suit. The trial court allowed Gormley’s motion and with respect thereto made the following specific findings:
“1. That the counterclaim purports to assert a cause of action for indemnity, or liability over, against the co-defendant, James Gormley, in the event that defendant-counterclaimant, DeKalb Forge Company, is found liable in the principal casе of Mattie W. Embree, Administrator, vs. DeKalb Forge Company and James Gormley.
“2. That said counterclaim does not state a presently existing cause of action for indemnity, but attempts to state a future cause of action which is contingent and dependent upon the happening of a future event or determination.
“3. That section 38 of the Civil Practice Act of Illinois authorizes only counterclaims based upon presently existing rights or causes of action, and does not, by its terms or by implication, authorize a counterclaim upon a possible future or contingent claim based upon the happening of some future event or determination.
“4. That defendant, DeKalb Forge Company, counterclaims against its co-defendant, James Gormley, and that the pending issue does not involve bringing in a third party, or third party practice, and that section 25(2) of the Civil Practice Act has no application to the case at bar.
“5. That the counterclaim filed herein, being based solely upon a future or contingent liability, dependent upon the happening of a future event or determination, does not state a presently existing right or cause of action, and should be dismissed.
“6. Further, the court expressly finds that there is not just reason for delaying enforcement or appeal upon this judgment order.”
The court then ordered that the counterclaim be dismissed, and the counterplaintiff electing to stand on its counterclaim, judgment was entered against it. From such dismissal judgment, the defеndant and counterplaintiff has appealed.
The sole question presented on this appeal is whether DeKalb Forge Company has a present right to maintain , its counterclaim against its servant, Gormley.
It is DeKalb Forge’s contention that it has a present right to counterclaim against Gormley to require him to pay any damages to it by reason of his tort; that the Civil Practice Act permits the maintaining of such a counterclaim against Gormley and that DeKalb Forge should not be compelled to institute a separate suit to have its right to indemnity determined.
The sections of the Civil Practice Act relied on by DeKalb Forge are quoted below:
“Within the time for filing his answer or thereafter by leave of court, a defendant may by third-party cоmplaint 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. Subsequent pleadings shall be filed as in the case of a complaint and with like designation and effect. The third-party defendant may assert any defenses which he has to the third-party complaint or which the third-party plaintiff hаs to the plaintiff’s claim and shall have the same right to file a counterclaim or third-party complaint as any other defendant. If the plaintiff desires to assert against the third-party defendant any claim, which the plaintiff might have asserted against the third-party defendant had he been joined originally as a defendant, he shall do so by an appropriate pleading. When a counterclaim is filed against a party, he may in like manner proceed against third parties. Nothing herein applies to liability insurers or creates any substantive right to contribution among tort-feasors or against any insurer or other person which has not heretofore existed.” Ill Rev Stats 1963, ch 110, sec 25(2).
“(1) Subject to rules, any demand by one or more defendants against one or more plaintiffs, or against one or more codefendants, whether in the nature of setoff, recoupment, cross-bill in equity, cross demand or otherwise, and whether in tort or contract, for liquidated or unliquidated damages, or for other relief, may be pleaded as a cross demand in any action, and when so pleaded shall be called a counterclaim.
“(2) The counterclaim shall he a part of the answer, and shall be designated as a counterclaim. Service of process on parties already before the court is not necessary.” Ill Rev Stats 1963, sec 38.
DeKalb Forge’s first point is that a master has an action over against its servant for damages to he paid by it by reason of its servant’s tort. Among cases citеd in support of this point are Holcomb v. Flavin, 37 Ill App2d 359,
The second point argued by DeKalb Forge is that under section 25 of the Civil Practice Act it has a present right to counterclaim against Gormley to require Mm to pay any damages which it may sustain by reason of Ms tort and that the Civil Practice Act рermits the filing of such a counterclaim.
Counterdefendant Gormley’s first argument in support of the trial court’s order dismissing the counterclaim is that since DeKalb Forge’s liability is contingent upon the outcome of the principal case, there is no presently existing cause of action in DeKalb Forge because no liability has been established against it, nor has DeKalb Forge suffered any damages. As authority for its position, Gormley quotes from sections of Illinois Law and Practice and American Jurisprudence on the subject of “limitations,” which state that a cause of action for contribution from a joint obligor accrues when a party has paid the primary obligation or more than his share of it. Gormley also cites Harris v. Buder, 326 Ill App 471,
Holcomb v. Flavin, snpra, was an action for damages for personal injuries sustained in an automobile collision. Tbe driver of tbe vehicle which allegedly injured the plaintiff was named but was not sued as defendant. The defendants, who were named as the driver’s employers, pursuant, to section 25 of the Civil Practice Act, filed third party complaints. On the driver’s motion, the third party complaints were dismissed. The Appellate Court reversed the dismissal order and held that:
“A master, not guilty of active participation in a tort may recover against his servant the amount which the master is required to pay for damages to a third person by reason of the servant’s tort (Meece v. Holland Furnace, 269 Ill App 164, 169; Purple Swan Safety Coach v. Egyptian Trans. Co., 256 Ill App 442, 444). The acts or omissions involved in the case before us, however, refer only to acts done through the servant, or the master by and through the servant. The ground of responsibility is solely that of respondent superior. Such being the case, it is obvious that the complainants would have a right if found responsible and required to pay, to recover against the servant. Under the third party practice this right is sanctioned without separate litigation under the terms of the statutory рrovisions referred to.” Id. at 361.
In Blaszak v. Union Tank Car Co., supra, the plaintiff claimed to have been injured when the lid of a tank car owned by the Union Tank Car Co. blew off. The tank car was being leased by Union to Shell Oil Company, the plaintiff’s employer, and a negligence action was brought by the plaintiff against Union. Union filed a third party complaint against Shell seeking indemnity. An appeal was taken by Union from an order dismissing tbe third party complaint. The Appellate Court reversed and stated:
“Section 25(2) of the Civil Practice Act provides that ... 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 . . .
“It does not have to аppear 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. We feel here the pleadings indicate Union might have a right to recover over against Shell any amount it may be required to pay plaintiff.”
The “Joint Committee Comments” following section 25 of the Civil Practice Act, Smith Hurd Annotated Statutes, indicates the intention underlying that section of the statute in stating the following:
“Subsection (2), in common with third-party practice provisions in other jurisdictions, is designed to curtail multiplicity of actions by providing for assertions in one action of any claim which, by reason of the plaintiff’s claim against him, the defendant has or may have against a third party.”
It becomes apparent from the above cases and the “Joint Committee Comments” that a defendant, in order to bring a third party action, does not have to wait until his liability has been determined, or until he has paid the plaintiff in whole or in part for the plaintiff’s damages. Such a defendant, may, in order to avoid a multiplicity of suits, join as a third party defendant anyone against whom he may hаve a possibility of recovery on account of the plaintiff’s claimed damages.
It is urged by Gormley that he and DeKalb Forge are joint tort-feasors and as such have no right of contribution. Laver v. Kingston, 11 Ill App2d 323,
In its counterclaim, DeKalb Forge alleges that if a judgment is entered in the principal case it will be based on. tbe active and primary wrongful acts of Grormley and only on the passive or secondary acts of DeKalb Forge. It is unquestionably the law of this State that between joint tort-feasors there is no right of contribution. The rule against contribution or indemnity between joint tort-feasors does not, however, apply between parties where one is the active and primary wrongdoer and the other bears a passive and secondary relationship to the cause of thе injury. Shell Oil Co. v. Foster-Wheeler Corp.,
Grormley further argues that since he is a present co-defendant in the suit, he cannot be brought in as a third party defendant under the provisions of section 25 of the Civil Practice Act, and further, that there is no authority under section 38, which deals with counterclaims, for a counterclaim against a counterdefendant by which the counterplaintiff seeks to have the counterdefendant held liable on account оf the judgment in the principal action.
A purpose of both counterclaims and third party proceedings is the avoidance of multiplicity of suits. Section 4 of the Civil Practice Act provides:
“This Act shall be liberally construed, to the end that controversies may be speedily and finally determined according to the substantive rights of the parties. The rule that statutes in derogаtion of the common law must be strictly construed does not apply to this Act or to the rules made pursuant thereto.”
Section 38 authorizes the pleading of cross demands as counterclaims by one or more defendants against one or more plaintiffs or by one or more defendants against one or more co-defendants. Section 38 goes on to provide that “counterclaims” may be “in the nature of setoff, recoupment, cross-bill in equity, cross demand, or otherwise, and whether in tort or contract, for liquidated or unliquidated damages, or for other relief . . .” (emphasis added).
In Johnson v. Moon, 3 Ill2d 561,
“Even if we assume the languаge of Section 38 limits counterclaims to original parties to the action, we cannot accept the view that it should be construed as an isolated text. No reason is advanced to support such a departure in this case from the established course, which contemplates that the several provisions of the statute should be construed together in the light of the general purpose and object of the act, so as to give effect to the main intent and purpose of the legislature as therein expressed. People ex rel. Nelson v. Olympic Hotel Building Corp., 405 Ill 440, 444.”
In view of the apparent purpose of sections 25 and 38, and of the Civil Practice Act generally to permit broad joinder of parties аnd causes and the avoidance of multiplicity of actions, it is inconceivable that a counterclaim for indemnity should not be allowed merely because the party against whom the relief is sought is already joined as a defendant.
For the reasons herein indicated, the judgment order dismissing the counterclaim is reversed and the cause is remanded to the Circuit Court of DeKalb County with directions to overrule the motion to dismiss the counterclaim.
Beversed and remanded with directions.
ABBAHAMSON, P. J. and MOBAN, J., concur.