Appeal, No. 73, March T., 1950, from judgment of Court of Common Pleas of Butler County, Sept. T., 1943, No. 12, in case of Builders Supply Company v. P.J. McCabe. Judgment reversed.
Ralph S. Davis, Jr., with him George Y. Meyer, John L. Wilson and Wagner & Wagner, for appellant.
Lee C. McCandless, for appellee.
Before Drew, C.j., Stern, Stearne, Jones, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE HORACE STERN
This case arises out of an accident on an Ohio highway. Plaintiff, Builders Supply Company, an Ohio corporation with its office located at Akron, was operating its truck in a northerly direction on Arlington Street in that City. Defendant, P.J. McCabe, a resident of Butler County, Pennsylvania, was operating his automobile in an easterly direction on Wilbeth Road. As they entered the intersection plaintiff's driver, in order to avoid defendant's automobile, pulled his truck over to the southbound lane of travel, with the result that he ran head-on into a truck which was then proceeding southward driven by one Pietropaolo; there was no contact between defendant's automobile and either of the two trucks. Pietropaolo brought suit against plaintiff in Ohio, claiming damages for personal injuries and for necessary repairs to his truck; he alleged that plaintiff had operated its truck in a negligent manner by failing to keep it under proper control, driving it at an excessive speed, being unable to stop it within the assured clear distance ahead, and thereby causing it to be driven to the wrong side of the highway. Plaintiff filed an answer denying that it was guilty of any negligence. The court heard testimony presented by both parties, decided in favor of Pietropaolo, and entered judgment in his favor in the sum of $3000. Plaintiff paid this judgment, and having, at the time the suit was brought, demanded of McCabe that he assume
the defense and notified him that it would look to him for indemnity, it brought the present action against him, alleging in its statement of claim that the accident had been caused by his negligence and seeking to recover from him the damages to its truck and the amount it had paid on the judgment recovered against it "or such part thereof as the defendant may be responsible for under the Ohio law if he is found to be only a joint tortfeasor." The item of damages to its truck was compromised and settled by the parties out of court, and the case went to trial only for the recovery of the $3000 which plaintiff had paid to satisfy the judgment. A verdict was rendered in its favor for $3000 and interest thereon, and, defendant's motions for a new trial and for judgment n.o.v. having been overruled, defendant appeals.
It will be noted that plaintiff's statement, of claim sought recovery either for the entire $3000, which, if allowed, would be by way of indemnity, or such part thereof as might be recoverable if it were found the plaintiff and defendant were joint tortfeasors, which, if allowed, would be by way of contribution. There is, of course, a fundamental difference between indemnity and contribution. The right of indemnity rests upon a difference between the primary and the secondary liability of two persons each of whom is made responsible by the law to an injured party. It is a right which insures to a person who, without active fault on his own part, has been compelled, by reason of some legal obligation, to pay damages occasioned by the initial negligence of another, and for which he himself is only secondarily liable. The difference between primary and secondary liability is not based on a difference in degrees of negligence or on any doctrine of comparative negligence, -- a doctrine which, indeed, is not recognized by the common law; (see Fidelity & Casualty Co. of New York v. Federal Express, Inc., 136 F. 2d 35, 40).
It depends on a difference in the character or kind of the wrongs which cause the injury and in the nature of the legal obligation owed by each of the wrongdoers to the injured person. Secondary liability exists, for example, where there is a relation of employer and employee, or principal and agent; if a tort is committed by the employee or the agent recovery may be had against the employer or the principal on the theory of respondeat superior, but the person primarily liable is the employee or agent who committed the tort, and the employer or principal may recover indemnity from him for the damages which he has been obliged to pay. Another example, and perhaps the most familiar one, is when a pedestrian is injured by falling in a hole in the pavement of a street; in such a case the abutting property owner is primarily liable because of his failure to maintain the pavement in proper condition, but the municipality is secondarily liable because of its having neglected to perform its duty of policing the streets and seeing to it that the property owners keep them in repair; if therefore the injured person chooses to bring suit against the municipality the latter can recover indemnity from the property owner for the damages which it has been called upon to pay. Many other illustrations might, of course, be given, as, for example, where a person injured by the leakage of gas from a defective pipe recovered damages from the gas company which maintained the pipe, the gas company was held entitled to recover indemnity from a street railway company whose negligent excavation in the street had caused the pipe to break: Philadelphia Company v. Central Traction Co., 165 Pa. 456, 30 A. 934. So likewise, where there was an explosion in one of the mains of a gas company causing the collapse of a vault under the sidewalk and injuring two persons on the pavement, and the latter brought suit and recovered judgment against the property owner for failure to
maintain the pavement in a safe condition as required by law, the property owner, having paid the judgment, was allowed recovery of indemnity from the gas company which had negligently created the condition: Orth v. Consumers Gas Co., 280 Pa. 118, 124 A. 296. So, where the owners of a store property who maintained an opening in their sidewalk were obliged to pay damages for injuries received by a pedestrian who fell into the opening and was injured, recovery of indemnity was allowed from a contractor employed by them to take waste material from the premises, and who, in the course of the work, removed the iron grills above the opening and did not properly guard it; obviously the contractor's was the primary, the property owners' the secondary liability for the injury which occurred: Globe Indemnity Co. v. Schmitt, 142 Ohio St. 595, 53 N.E. 2d 790; Maryland Casualty Co. v. Frederick Co., 142 Ohio St. 605, 53 N.E. 2d 795. Where a workman, sent by a stevedore on board a lighter to receive and stow a cargo of sugar being discharged from a ship, was injured by falling from an insecure ladder leading from the deck of the ship to the lighter, and recovered damages from his employer, the latter was permitted to recover indemnity from the owner of the lighter on the ground of the latter's primary responsibility to provide safe access to it for the stevedore's workmen: The No. 34, 25 F. 2d 602. Where a retailer of meat which proved to be ...