¶1concurring in part and dissenting in part:
¶2I concur with the majority opinion in reversing the judgment notwithstanding the verdict in favor of the plaintiff, Thomas Mclnemey, and against Hasbrook Construction Company, and in reinstating the judgment for the plaintiff. I also agree with the majority that the written contract of indemnity between Hasbrook and Universal Painting Contractors, Inc., brought by way of a third party action, does not include the house model No. 3600, where the plaintiff was working.
¶3However, I respectfully dissent to the majority’s holding affirming the trial court’s judgment notwithstanding the verdict on the active-passive count of the third party complaint, wherein the jury found in favor of Hasbrook and against Universal. I think the question of active-passive was a question of fact for the jury to determine, as we said in Lambert v. D. J. Velo & Co. (1971), 131 Ill.App.2d 30, wherein we foUowed the ruling of the Supreme Court of Illinois in Miller v. DeWitt (1967), 37 Ill.2d 273.
¶4I would reverse the trial court and reinstate the judgment in favor of Hasbrook and against Universal.