The opinion of the court was delivered by: DUSEN
This case is before the court on motion of third-party defendant, Gateway Transportation Company (hereinafter called 'Gateway'), to dismiss the third-party complaint of the defendant, third-party plaintiff, The Greyhound Corporation (hereinafter called 'Greyhound').
Plaintiff, Charles G. Roth, Administrator of the Estate of Elizabeth Laurie Scott Roth, deceased, brought this action against the defendant for the wrongful death of the deceased pursuant to the Indiana Wrongful Death Statute.
Plaintiff's complaint alleges that he is a citizen of the Commonwealth of Pennsylvania, that the defendant is a corporation incorporated under the laws of the State of Delaware, and that the accident in which the plaintiff's decedent was killed occurred in Indiana while decedent was riding as a passenger in a bus of the defendant on October 15, 1955, on U.S. Route 20, approximately six miles east of Michigan City, Indiana.
Defendant filed a third-party complaint against Gateway, alleging that such accident 'was caused solely by negligence of the Gateway Transportation Company, third-party defendant, in parking his vehicle partly on a public highway and in failing to maintain proper flares to warn approaching vehicles,'
and that, therefore (a) Gateway 'is solely liable to the plaintiff for any damages he may recover as a result of the death of the decedent or (b) third-party defendant (Gateway) is liable to indemnify or to contribute or to be liable over to the third-party plaintiff (Greyhound) for any sums awarded to the plaintiff as damages in this action, liability for such damages being hereby denied.' (Parentheses added.)
Gateway appeared specially by its attorneys and moved to dismiss the third-party complaint on the grounds that:
'1. The laws of the State of Indiana, the place where the accident referred to in the Third-Party Complaint occurred, forbid the institution of a third-party action for contribution.
'2. The facts and circumstances of this case as disclosed by the plaintiff's Complaint, the Defendant's Answer, and the Third-Party Complaint, do not constitute a case in which indemnity between the third-party plaintiff, and the third-party defendant is applicable.'
Under Indiana law,
one of two joint tortfeasors is not entitled to contribution from the other. See Westfield G. & M. Co. v. Noblesville & E. Gravel-Road Co., 1895, 13 Ind.App. 481, 41 N.E. 955; Smith v. Graves, 1915, 59 Ind.App. 55, 108 N.E. 168; and Jackson v. Record, 1937, 211 Ind. 141, 5 N.E.2d 897. For this reason, this third-party action may only be maintained if defendant (third-party plaintiff) is entitled to indemnity from the third-party defendant. See Holbrook v. Nolan, 1937, 105 Ind.App. 75, 10 N.E.2d 744.
From the allegations of the third-party complaint, as set out above, it is apparent that the facts set forth therein are not sufficient to give rise to a right of indemnity over against Gateway. Greyhound's allegation that the accident was 'solely' the negligence of Gateway is no basis for the court to make any finding of active and passive negligence between the parties,
since, if it is correct, the defendant is not even responsible for any passive negligence.
Further, the attention of the third-party plaintiff is called to the rule stated in Builders Supply Co. v. McCabe, 1951, 366 Pa. 322, 328, 77 A.2d 368.
Under the principle stated in that case, it appears that Greyhound may well not be entitled to indemnity from those who, in conjunction with it, caused the injury.
And now, March 8, 1957, it is ordered that the motion of third-party defendant, Gateway Transportation Company, filed November 1, 1956, to dismiss the third-party complaint is granted, with leave to the third-party plaintiff, The Greyhound Corporation, to file an amended third-party complaint in ...