{
  "id": 5186631,
  "name": "Hawthorn-Mellody Farms Dairy, Inc., for Use of Lumbermens Mutual Casualty Company, Plaintiff, v. Elgin, Joliet and Eastern Railway Company, Defendant and Third Party Plaintiff-Appellant, v. John F. Cuneo, and Hawthorn-Mellody Farms Dairy, Inc., Division of American Processing and Sales Company, Third Party Defendants-Appellees",
  "name_abbreviation": "Hawthorn-Mellody Farms Dairy, Inc. v. Elgin",
  "decision_date": "1958-06-17",
  "docket_number": "Gen. No. 47,330",
  "first_page": "154",
  "last_page": "159",
  "citations": [
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      "cite": "18 Ill. App. 2d 154"
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  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
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      "category": "reporters:state",
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        2775022
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  "last_updated": "2023-07-14T18:31:45.752438+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "LEWE and MURPHY, JJ., concur."
    ],
    "parties": [
      "Hawthorn-Mellody Farms Dairy, Inc., for Use of Lumbermens Mutual Casualty Company, Plaintiff, v. Elgin, Joliet and Eastern Railway Company, Defendant and Third Party Plaintiff-Appellant, v. John F. Cuneo, and Hawthorn-Mellody Farms Dairy, Inc., Division of American Processing and Sales Company, Third Party Defendants-Appellees."
    ],
    "opinions": [
      {
        "text": "PRESIDING JUSTICE KILEY\ndelivered the opinion of the court.\nThis is an action hy an insurance carrier, as sub,rogee, to recover workmen\u2019s compensation, in the amount of $932.50, paid to two employees of Hawthorn-Mellody Farms Dairy, Inc., who were injured in a collision between a truck and a train of defendant railroad. The railroad answered and filed a third-party action against Hawthorn-Mellody and Cuneo for indemnity. The court dismissed the third-party complaint and the railroad has appealed.\nThe following alleged facts are admitted: The collision in which the employees were injured occurred April 24, 1951, at the intersection of a private road, on a Hawthorn-Mellody farm, and the railroad tracks. At the time there was in existence an agreement between the railroad and Samuel Insull under which Insull undertook to \u201cindemnify, save harmless and defend\u201d the railroad \u201cfrom . . . suits, actions, legal proceedings, claims, demands, damages ... in any manner caused by, arising from, incident to, connected with or growing out of . . . use ... of said crossing. . . .\u201d This undertaking was made binding upon Insull\u2019s \u201csuccessors and assigns\u201d and the third-party defendants are the \u201clawful successors and assignees\u201d of Insull.\nThe third-party defendants, Cuneo and HawthornMellody, moved to dismiss on the grounds that Hawthorn-Mellody \u201ccannot be both plaintiff and defendant in the action\u201d and that the third-party complaint \u201cis contrary to the spirit and meaning of Section 25 of the Civil Practice Act.\u201d The judgment of dismissal entered is: \u201cIt is . . . ordered . . . that the third party complaint be, and it hereby is dismissed without prejudice, that the third party defendants have judgment for their costs . . . and have execution therefor and that they go hence without day.\u201d\nThe third-party defendants contend the appeal does not meet the requirements of Section 50(2) of the Civil Practice Act [Ill. Rev. Stats. 1957, ch. 110, \u00a750(2)] and is therefore not final and appealable. That section provides that where multiple parties or claims are \u201cinvolved in an action\u201d the court may enter final judgment as to one or more but fewer than all the parties or claims\u201d only upon an express finding that there is no just reason for delaying enforcement or appeal.\u201d In the absence of \u201cthat finding\u201d such a judgment \u201cdoes not terminate the action, is not enforceable or appealable.\u201d\nWe think there is no merit in the argument of the railroad that Section 50(2) does not apply because \u201cthe third party complaint does not present-multiple claims for relief against multiple parties.\u201d The Supreme Court decided in Ariola v. Nigro, 13 Ill.2d 200, that the appeal \u201cmust fail\u201d because of \u201cthe omission to obtain\u201d the \u201cexpress finding that there is no just reason for delaying appeal.\u201d The court said, at page 207, that the section was aimed at removing the uncertainty which existed when a final judgment was entered on less than \u201call of the matters of controversy.\u201d We think that the Supreme Court expects a liberal construction of the section in order to avoid the evils of piecemeal appeals it was directed against. For this reason we think the third-party action was a matter of controversy within the Supreme Court\u2019s interpretation.\nThe First Division of this court recently construed section 50(2) in Oppenheimer Bros., Inc. v. Joyce & Co., 17 Ill.App.2d 408, opinion filed by this court May 14,1958. The order there was similar to the order before us in that there was no express finding that there was no just reason for delay. However, this court decided the order of the trial court \u201cmust have determined that this order was final and that there was no just reason for delaying enforcement or appeal.\u201d This is to say that if the terms of the order clearly imply that the order is final and that there is no just reason for delay, the requirements of Section 50(2) .are satisfied. The Supreme Court case of Ariola v. Nigro, 13 Ill.2d 200, was distinguished on the ground that in that case it did not appear that execution had been ordered to issue and accordingly did not make clear that the order was final and that there was no just reason for delay.\nThus the Supreme Court dismissed the appeal in the Ariola case because of the omission of the express finding and this court in the Oppenheimer case refused to dismiss the appeal because the terms of the order implied the finding.\nThe opinion of this court cited language from a concurring opinion by Judge Clark in Republic of Italy v. De Angelis, 206 F.2d 121, 132 (CA 2nd, 1953), who liberally construed Federal Rule 54(b), which our section 50(2) is \u201cpatterned after\u201d (Ariola v. Nigro, page 203), to mean that an order is appealable if, though not in the \u201cvery words,\u201d it is substantially in compliance with the rule and clearly intended to be in compliance. The Federal Rule, like ours, permits piecemeal appeals \u201conly upon an express determination.\u201d\nHere the third-party action is for a declaratory judgment that Cuneo and Hawthorn-Mellody \u201cshall defend, indemnify and save harmless\u201d the railroad. It was alleged that the railroad had demanded, and had been refused, these benefits. The third-party action also sought recovery of all sums that \u201cmay be\u201d adjudged against it in the original suit. With respect to the recovery of the damages that \u201cmay be\u201d assessed against it, together with its costs, attorney\u2019s fees and expenses, the third-party action depends upon the outcome of the original suit. The railroad if found not guilty would not be entitled to recover damages, and its expenses and attorney\u2019s fees would not be calenlabie until the end of the trial. Thus if we were to entertain this appeal we would be deciding substantial matters which may never need decision. Under these circumstances we think that the trial court could not have expressly found that there was no just reason for delaying enforcement or appeal.\nEither way we look at this appeal indicates it should be dismissed. If the \u201cvery words\u201d of the statute must be used, they are missing in this order and it is not appealable. If the terms of the order imply the finding, there was an abuse of discretion (Ariola v. Nigro, 13 Ill.2d 200) in allowing the appeal because there is a just cause for delaying the appeal: namely, we are not to anticipate the liability of the railroad by deciding its right to damages at the risk of a subsequent not guilty verdict in its favor; nor to determine the railroad\u2019s right to fees and expenses at the risk that later the third-party defendants would question on appeal the amount of the allowance of fees and expenses.\nFor the reasons given the appeal is dismissed.\nAppeal dismissed.\nLEWE and MURPHY, JJ., concur.",
        "type": "majority",
        "author": "PRESIDING JUSTICE KILEY"
      }
    ],
    "attorneys": [
      "Stevenson, Conaghan, Yelde & Hackbert, of Chicago (Harlan L. Hackbert, and Robert L. Hesse, of counsel) for appellant.",
      "Wyatt Jacobs of Jacobs, Miller, Rooney & Lederleitner, of Chicago (Joseph B. Lederleitner, and William L. Bifrig, of counsel) for appellees."
    ],
    "corrections": "",
    "head_matter": "Hawthorn-Mellody Farms Dairy, Inc., for Use of Lumbermens Mutual Casualty Company, Plaintiff, v. Elgin, Joliet and Eastern Railway Company, Defendant and Third Party Plaintiff-Appellant, v. John F. Cuneo, and Hawthorn-Mellody Farms Dairy, Inc., Division of American Processing and Sales Company, Third Party Defendants-Appellees.\nGen. No. 47,330.\nFirst District, Second Division.\nJune 17, 1958.\nReleased for publication July 15,1958.\nStevenson, Conaghan, Yelde & Hackbert, of Chicago (Harlan L. Hackbert, and Robert L. Hesse, of counsel) for appellant.\nWyatt Jacobs of Jacobs, Miller, Rooney & Lederleitner, of Chicago (Joseph B. Lederleitner, and William L. Bifrig, of counsel) for appellees."
  },
  "file_name": "0154-01",
  "first_page_order": 164,
  "last_page_order": 169
}