*1 it dis- because was unconstitutional exemption that such In our opinion, the Federal government. criminated “cus- only distinguishable. here clearly the situation is authorized charge additional subject tomer” not a classification taxing municipality, is the 36(a) not unreasonable. we hold is of the appellate stated, the judgment For the reasons court the circuit reversed, court is affirmed. reversed; court

Appellate circuit affirmed. (No. 59688. LEIFHEIT, J. v. NANCY LAUE, Appellee, C.

JOHN Appellant. Rehearing denied

Opinion November 1984.— filed 1,1985. February *2 RYAN, C.J., dissenting. Ralcine, of Syc- H. and Norman Thomas Smith

Peter amore, appellant. Fischer, Oregon, George II and P. Fearer

William for appellee. the opinion delivered

JUSTICE CLARK court: defendant, Laue, sued John C. plaintiff, Act in under “An Leifheit, J.

Nancy (Ill. tortfeasors” among joint relation to contribution Contribu- 70, seq.) (the 301 et 1981, ch. par. Rev. Stat. granted De Kalb County The circuit court of tion Act). on the pleadings Laue’s motion for judgment to the $52,800. Leifheit appealed amount of that Laue’s complaint court held court. The appellate Act section 5 of was not barred by the circuit 305), ch. but par. Rev. Stat. re- and the cause should be reversed *3 for failure to of the complaint manded for dismissal 937.) Although Ill. 3d a action. (120 App. state cause of favor, she ap- in Leifheit’s court reversed appellate Ill. 315(a) (87 Rule to our to this court pealed pursuant complaint of whether Laue’s R. on the issue 315(a)), section 5 of the Contri- was barred by contribution Act. bution in this stems appeal

The action involved Nancy action between the wherein parties, from a prior as the joined of her family Leifheit and four members Laue, the for negligence. to sue John C. Laue plaintiffs a truck driving action, was original defendant Leifheit. In the driven which collided with car Laue, returned verdicts original jury for the damages per- recovered all of the plaintiffs and the collision. Nancy suffered in sonal had injuries they action was in the original Leifheit’s award of damages 333/3%, jury’s reduced which was the assessment in negligence causing Leifheit’s her Nancy comparative injuries. own

After and in the original verdict judgment filed for contribution against Nancy Laue a complaint all had damages paid Leifheit for 333/3% of he four members. Laue’s motion family Leifheit’s Nancy and granted, on the was judgment pleadings Nancy Laue Leifheit to make contribution was ordered in damages 333/3% of all the suit.

In the Leifheit five issues: (1) raised appellate for contribution complaint whether Laue’s Leifheit the Contribution Act and/or whether barred issue; this the doctrine of collateral (2) waived whether of Leifheit’s her litigation liability estoppel precluded the court (3) erroneously whether injured passengers; and the com- motions to strike dismiss denied Leifheit’s in the court erred Laue’s (4) granting whether plaint; answer; from motion to strike denials Leifheit’s explicit the court erred (5) granting and whether on the pleadings.

The court that Laue’s cause of action held appellate v. Tisoncik Szc- not under for contribution was barred zepankiewicz (1983), Ill. App. action was barred

issue of whether Laue’s contribution Leifheit Act not waived by under was file Laue’s failure to issue of since she had raised for contribution counterclaim or third-party Ill. in the circuit court. (120 her motion to dismiss did, however, agree 942.) from she was improperly precluded with Leifheit to her of her liability passengers. the issues litigating *4 that finding that The court held appellate jury’s caused the negligence 333/3% the combined was her does not to Leifheit attributable to damage in tort therefore subject liability mean that she is her in that as well. The appel- passengers percentage that, “for of a contribution late court stated purposes established; ‘in has never been action, her tort’ liability her Ill. (120 her lack of due care for own only safety.” 937, The court further held App. 946.) appellate 3d in Leifheit’s motions denying circuit court had erred failed to to strike and dismiss because Laue’s complaint state a cause of action for Ill. (120 App. contribution. 937, The court held that the circuit 947.) appellate court had also erred in certain denials from striking 937, 948.) Leifheit’s answer. Ill. And (120 App. the circuit court court held lastly, appellate should not entered on the be- judgment pleadings have not right cause the did establish Laue’s pleadings 937, as a matter of law. 120 Ill. 949. issue,

In this Leifheit raises one whether only Laue Act from was barred under the Contribution his bringing claim for contribution because he failed to Laue, assert this claim in the in es original sence, that since the cross-appeals, asserting in the that Leifheit original established was the doctrine of collateral negligent, estoppel 331/3% would Leifheit from the issue of her prevent relitigating to her negligence passengers. held that Laue’s action con-

tribution was not barred section 5 of the Contribu- tion Act. Laue had his contri- agree brought We bution action the method prescribed counterclaim or third-party However, his action would not have been barred. action in the

since Laue failed to his contribution bring method, he it. Sec- bringing is barred from prescribed 1983, ch. tion 5 of the Contribution Act Rev. Stat. 305) par. provides: *5 196 A

“Enforcement. cause of action by a among joint tortfeasors be asserted by by or action before or after counterclaim payment, pending (Emphasis third-party added.) Court, First section 5 as the interpret Appellate

We Szczepankiewicz (1983), Tisoncik v. District, in 113 did held case, Ill. In that the court 240. App. in 5 that a contribu- providing the section language tion a “separate claim be asserted before by or after situations where no suit is covers payment” the how- which was initiated by injured party; ever, action, there is a the contribution when or third- claim should be asserted counterclaim “by in action. 113 Ill. 245. party claim” v. People Boykin (1983), As this court stated in Ill. 138, 141: “ construction, rule statutory ‘The cardinal of subordinate, is to rules are

which all other canons and meaning and effect to the true intent give ascertain and determining legisla- In the legislature.’ [Citations.] intent, lan- statutory consider first the tive courts should State, As noted where the lan- guage. [Citation.] resorting is ‘it will guage given clear effect without for construction.’ Where the to other aids [Citations.] however, it ex- is is language ambiguous, appropriate 94 Ill. 2d legislative history. amine the [Citation.]” 141. the statutory language it is clear from

We believe action, there 5 that if there a pending contri- case, the party seeking was in the instant then or third- counterclaim must assert claim by bution claim that party of fact that the statutory language

In addition to the action for con- an requires filing section 5 clearly are original strong public tribution in the there should reasons for such One requirement. jury policy decide both the to the liability plaintiff percent- defendants, so as to avoid a ages liability among crowded court sys- of lawsuits in an already multiplicity Requir- of inconsistent verdicts. tem and possibility matter in one suit will ing litigate parties If Laue had also time and fees. attorney save for contri- filed a counterclaim or third-party complaint he have denied any bution would were found on negligence asserted liability, yet *6 of the he would be entitled to contri- part plaintiff, Therefore, that he would have argument bution. Laue’s in essence if he filed a counter- admitting liability been claim or merit. without third-party complaint

Since we have determined that seeking Laue’s action contribution is barred section 5 of the by Contribution Act, it is for us to decide his com- unnecessary whether action failed to state cause of or whether plaint also reason of the barred action would be barred by doctrine of collateral estoppel. we are of the

Although affirming ap- court, which the circuit court’s pellate reversed judg- Leifheit, ment on the and held favor of we pleadings do so for a other than the reason forth in reason set of the court —that Laue’s com- opinion appellate plaint failed to state a cause of action. We are holding that since Laue’s suit was 5 of the barred section Act he his Contribution because failed to file suit we need not address the issue of whether his failed to state a complaint cause of action. therefore this cause to the We remand circuit court for dismissal of the not on the complaint, that his to state a cause of grounds failed complaint on the but that Laue’s suit was barred grounds section 5 of the Act. Contribution reasons, For all the affirm the judg- we foregoing court, ment of the the judg- which reversed merit of the circuit and we remand this cause the circuit court for dismissal of the on that the suit was barred under section 5 grounds Contribution Act. remanded,

Affirmed with directions. RYAN, dissenting: CHIEF JUSTICE on sec- I not the construction agree placed with do. Act ch. tion 5 of the Rev. Stat. That section provides: par. 305) by my colleagues. tort- among joint for contribution “A cause action or by a action feasors be asserted before com- by third-party after counterclaim or payment, by plaint three in which ways

This section establishes plainly I see cause of action for contribution be asserted. of action cause nothing requires in section contribution must counter- asserted of a by way if of a (cross-claim), way third-party complaint claim or by had been an an action is or there In injured one tortfeasor brought party. of as- fact, 5, the three methods enumerating contribution, states action for serting the cause of *7 may of the three ways such an asserted in one action be may be asserted is, by stated. That the cause of action may a cross-complaint It asserted separate by action. be action, a third- in a it asserted pending by or be in a action. party complaint 70, 1983, the Stat. ch. (Ill. In entire act Rev. reading legislative I find no of through expression 301 pars. 305), of action created contribution intent cause must be asserted a third- of a or by cross-complaint way tort- if sues one of the party complaint injured party feasors. v. Hertz Meckley Corp. 88 (N.Y. 1976),

In Civ. Ct.

199 605, 555, 388 the court refers to Misc. N.Y.S.2d “A of New York statute which cause action for provides: asserted in a action or contribution be separate by claim in a cross-claim, counterclaim or third-party 608, 605, 555, Misc. (88 557.) N.Y.S.2d This similar to the of section language language very our York of act. The New. while the desir- noting of claims for in the ability asserting contribution cross-claim or a way of a third-party nonetheless that the statute authorized recognized a cause of action for be asserted

Section of the 608(a) Code of Civil Procedure (Ill. 2— Stat. 1983, Rev. ch. par. 608(a))provides: 2— “Any against claim one or more defendants one or more plaintiffs, codefendants, or one or more *** may be as pleaded any a crossclaim and pleaded when so be shall called counterclaim.” The historical and notes to this practice section in the Smith-Hurd Annotated Ann. ch. Stat., 2—par. 608(a), Historical Practice Notes, at 183 (Smith-Hurd 1983)) state:

“However, 13(a) in contrast Rule Federal Procedure, Rules of Civil provides compulsory waived, counterclaims that must be asserted this or sec- tion is permissive; it does not that a require defendant rights his immediately assert counterclaim it would be inconvenient strategically or inadvisable.” In Miller v. 83 Ill. Bank Pecatonica (1980), 424, 427, the court, discussing 608(a) 2— Procedure, Code of stated: Civil opinion, however,

“We are of while this sec- designed tion is simplify litigation between parties by providing that all issues can tried in one forum at time, same does not require it a defendant to imme- diately rights by way assert his of counterclaim ***. The ‘may’ quoted word of the statute words indicate[s] *8 200

an election is to the defendant and the cases available interpreted this have so section.” Act, 5 of 2— Section the Contribution as does section Procedure, of Civil the of Code uses word 608(a) Both sections concern cross- “may.” pleading may Both that such as- provide claims. cross-claims be in a Both serted of a counterclaim by way sections, not of the Code of Civil just 608(a) section 2— Procedure, as being permissive. should be construed reasons majority speaks strongly public policy 5 as the does. The construing majority opinion I am urg- that result from construction problems may have for the to con- ing proper would legislature been It contribution to be requiring sider. well be and will lead action is more sought desirable That, however, is not the issue fewer before problems. us. in 44 Law Review 691 (1979), In a comment Missouri from the author discusses difficulties that arise claim in a but asserting this a few jurisdictions deny opportu- *9 ' claim for contribution.” Hawaii Rev. Stat. sec. 663—

17(b) (1976). From statutes, these it is that a apparent standard form of prohibition has used to been of a prohibit asserting claim for action. The separate legislature in our statutes for no such provided Instead, prohibition. the legislature that a cause of provided be as- serted in all of the three set out ways statute, in- cluding “by

(No. 59408. DELBERT LUBBERS, v. NORFOLK AND Appellee, COMPANY,

WESTERN RAILWAY Appellant. Opinion 30, 1984. Rehearing November denied filed — 1, 1985. February notes “only Comment, in Missouri —Procedure nity.” Rule, L. Under the New Mo. Rev. Defenses 708 (1979). all could have The legislature easily provided in the original must be asserted claims for contribution have done so: action. Other States this provided obtained as subsection “If relief can be maintained to enforce independent no action shall be 1007(3) sec. claim for Ark. Stat. Ann. contribution.” 34— (1962). in this subsection provided “If relief can obtained as be maintained to enforce no action shall be independent tit. sec. Del. Code Ann. claim contribution.” 6306(b) (1975). in this paragraph as provided “If relief can obtained maintained to enforce action shall be independent no