inter se by that judgment, citing Restatement, Judgments (1942) § 82.
This Court, of course, in the absence of a subsequent contrary holding by an appellate court of Pennsylvania, is bound by Kimmel. However, the instant case appears readily distinguishable, because not only, as in Kimmel, were Gist and Yellow Cab Co. co-defendants in the prior action, but Rector, Yellow Cab Co.'s agent, and Gist were plaintiff and defendant.
The Restatement, Judgments (1942) states:
' § 99 Where Liability of a Person is Based Solely upon the Act of Another.
'A valid judgment on the merits and not based on a personal defense, in favor of a person charged with the commission of a tort, * * * bars a subsequent action by the plaintiff against another responsible for the conduct of such person if the action is based solely upon the existence of a tort * * * by such person, whether or not the other person has a right of indemnity.'
This section was cited approvingly in the recent case of Helmig v. Rockwell Mfg. Co., 1957, 389 Pa. 21, 131 A.2d 622; therefore it must be taken as the law of Pennsylvania and as such is binding on this Court in this diversity action. The instant third-party complaint alleges as the sole basis of Yellow Cab's liability that the cab was operated in a careless manner. Since the question of the cab driver's (Rector's) contributory negligence was necessarily decided adversely to Gist in the prior action, there is nothing further for this Court or a jury to consider. The case comes squarely within 99 of the Restatement.
While it is true that the plaintiffs in this action were not parties to the prior action between Gist and Rector, this in no way affects the fact that as between the third-party plaintiff, Gist, and the third-party defendant, Yellow Cab Co., the prior judgment is res judicata. The plaintiffs here seek no redress against Yellow Cab Co., and indeed they could not, since there is no independent ground of jurisdiction for this Court to entertain such an action. The plaintiffs and Yellow Cab Co. are both citizens of Pennsylvania. Sheppard v. Atlantic State Gas Co., 3 Cir., 1948, 167 F.2d 841 and cases therein cited.
Yellow Cab Co. was impleaded by defendant, Gist, under Rule 14 of the Federal Rules of Civil Procedure, 28 U.S.C. on the theory that it was liable to defendant for all or part of the plaintiff's claim. This liability has been predicated exclusively on Rector's negligence. The fact that the present plaintiffs were not parties to the prior litigation settling the question of Rector's negligence cannot, therefore, militate against the finality of that judgment. Yellow Cab Co. of D.C., Inc., v. Janson, 1949, 86 U.S.App.D.C. 38, 179 F.2d 54.
Accordingly, it is ordered that the motion of Yellow Cab Co. for summary judgment be and the same is hereby granted.
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