Appeal from judgment of Court of Common Pleas, Civil Division, of Allegheny County, Jan. T., 1969, No. 1279, in case of Samuel Mixter v. Mack Trucks, Inc., a New York corporation v. Montgomery Ward & Co., Inc., a Delaware corporation.
Michael W. Burns, with him Wilbur McCoy Otto, and Dickie, McCamey & Chilcote, for appellant.
John David Rhodes, with him Ralph A. Davies, and Thomson, Rhodes & Grigsby, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Jacobs, J. Dissenting Opinion by Hoffman, J. Spaulding, J., joins in this dissenting opinion.
[ 224 Pa. Super. Page 314]
This case involves the right to indemnification between the seller of a defective chattel and one who has made repairs to such chattel where both have become liable for injury to a third party -- the seller by virtue of absolute liability under § 402A of the Restatement
[ 224 Pa. Super. Page 315]
(Second) of Torts*fn1 and the other because of negligent repairs. The court below held that the seller was entitled to indemnification, and we affirm.
On June 16, 1967, plaintiff purchased a used tractor from Mack Trucks, Inc., the appellee. On September 3, 1967, plaintiff removed the right front tire and rim assembly from the tractor to replace a stud. While removed, the tire and rim assembly exploded, seriously injuring the plaintiff. Plaintiff sued Mack, contending that the rim on the right front wheel assembly was defective. Prior to the sale to plaintiff, Mack had purchased new tires and tubes for the tractor from Montgomery Ward & Co., Inc., who had installed the new tubes and tires on the old rim assembly. Mack joined Montgomery Ward as an additional defendant, alleging any defect was caused or concealed by Montgomery Ward.
The case against Mack was submitted to the jury on the strict liability of a seller under § 402A of the Restatement (Second) of Torts and the case against Montgomery Ward was submitted on common law negligence. The jury returned a verdict against both Mack and Montgomery Ward which was paid in equal shares by both defendants. The question of indemnity was not submitted to the jury and by stipulation and court order it was agreed that the question would be submitted to the court on the record. Thereafter, Judge Silvestri for the court below awarded indemnification to Mack for one-half of the verdict or $55,000 and entered judgment for Mack against Montgomery Ward in that amount.
Mack and Montgomery Ward are joint tortfeasors, so declared by the jury. At common law, a joint tortfeasor was not entitled to indemnity, which shifts the
[ 224 Pa. Super. Page 316]
entire loss from one to the other; nor was he entitled to contribution, which distributes the loss among tortfeasors. Pennsylvania now allows contribution by statute.*fn2 That statute did not affect the question of indemnity, which in Pennsylvania evolves from case law.
In Burbage v. Boiler Engineering & Supply Co., 433 Pa. 319, 249 A.2d 563 (1969), a boiler manufacturer was held entitled to indemnity from the manufacturer of a valve sold as a replacement unit for a boiler already in operation on the basis that the responsibility for discovery and prevention of the defect lay solely with the valve manufacturer. The personal injury suit against the boiler manufacturer and its suit against the valve manufacturer as additional defendant were submitted to the jury on the theory of strict liability under § 402A of the Restatement (Second) of Torts. Concerning indemnity, the Court said in its opinion: "The right of indemnity rests upon a difference between the primary and secondary liability of two persons each of whom is made responsible by law to an injured party. The right to indemnity enures 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 negligence of another. The difference between primary and secondary liability is not based on a difference in degrees of negligence or on any doctrine of comparative negligence but rather 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 as distinguished from primary liability rests upon a fault that is imputed or constructive only, being based on some legal obligation between the parties or arising from some positive rule
[ 224 Pa. Super. Page 317]
of statutory or common law or because of a failure to discover or correct a defect or remedy a dangerous condition caused by the act of the one primarily responsible. Builders Supply Co. v. McCabe, 366 Pa. 322, 77 A.2d 368 (1951)." Id. at 326-27, 249 A.2d at 567.
For many years Pennsylvania courts have given indemnity in numerous situations absent an express contract of indemnity. Many of those situations are enumerated in Builders Supply Co. v. McCabe, 366 Pa. 322, 77 A.2d 368 (1951), a case relied upon in Burbage. We will not repeat them other than to point out the familiar cases where an employer may get indemnity from his employee when the employer has been held liable to a third person for a tort committed by his employee, and where the municipality held liable for a defective sidewalk injury may recover from the abutting property owner. In many of those cases the liability of the indemnitor to the third person is termed primary and that of the indemnitee to the third person is termed secondary. In some cases, the one receiving indemnity has been said to be guilty only of passive neglect while the other was said to have been the active wrongdoer. As times change and relations become more and more complicated, it becomes increasingly difficult to find magic words to encompass every situation. As has been said by one writer: "[T]he duty to indemnify will be recognized in cases where community opinion would consider that in justice the responsibility should rest upon one rather than the other."*fn3
It becomes apparent that each case must rest on its own facts. As this case was submitted to the jury, emphasis was placed on the condition of the rim. There was no proof that the tire itself was defective and the count against Montgomery Ward, the seller ...