Mixter v. Mack Trucks, Inc.

Opinion by

Jacobs, J.,

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 (Second) of Torts¹ 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 Mach 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 tort-feasor was not entitled to indemnity, which shifts the entire loss from one to the other; nor was he entitled to contribution, which distributes the loss among tort-feasors. Pennsylvania now allows contribution by statute.² 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 §4Q2A 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 hind 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 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.”³

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 of the tire, under §4Q2A of the Kestatement (Second) of Torts was dropped. In determining Montgomery Ward’s negligence the jury was told to consider “the mounting of tires on the rim, the condition of the rim, the rust condition, whether proper steps were taken to remove the rust; if you consider that the rim was defective or rusty, whether or not there were procedures which should have been followed and were not followed; whether or not these conditions made it impossible for the tire to fit as it should upon the rim;. . . .” Mack’s liability was absolute if the tire-rim assembly was defective when it sold the tractor. This liability was imposed by a rule of law set out in §402A and adopted as the law of Pennsylvania in Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966).

The appellant objects to the holding of the lower court, in granting indemnity, that Montgomery Ward created the defect — contending factually that the rim was already defective when delivered to Montgomery Ward for the installation of new tires. Without conceding that the lower court’s holding encompasses a finding that the rim was not defective when delivered to Montgomery Ward, we come to the same conclusion in either case. Whether or not the rim was defective when the tractor was delivered to Montgomery Ward, Mack’s liability arose from a rule of law. Any actual fault attributable to Mack lay in its failure to discover the defect. Montgomery Ward’s liability arose because it negligently mounted a new tire on a defective rim, thus creating a dangerous condition. It would seem that the defect in the rim was concealed from Mack by a tire, both before and after the new tire was installed. When Montgomery Ward installed the new tire, it was necessary to remove the old tire from the rim. Its negligence at that time lay in mounting the tire on a rim of whose defective nature it was or should have been aware. In so doing it effectively sealed off any opportunity Mack might have had to inspect. Mack’s fault, if any existed, lay in failing to discover or prevent the misconduct of Montgomery Ward. The greater duty of Montgomery Ward justly requires it to bear the whole burden as between it and Mack.

The decision of the United States Court of Appeals for the Third Circuit in Tromza v. Tecumseh Products Co., 378 F.2d 601 (3d Cir. 1967), in which the Court applied Pennsylvania law, is persuasive. Tromza recovered a verdict in his personal injury action against Tecumseh Products Co. and Marquette Corp. Marquette’s cross-claim for indemnity against Tecumseh was not submitted to the jury but reserved for the district court, which decided against Marquette. The circuit court of appeals reversed, holding Marquette entitled to indemnity.

Tecumseh manufactured and sold to Marquette a sealed compressor refrigerator unit which Marquette incorporated in a refrigerator which it manufactured. The compressor casing exploded when Tromza, a repairman, subjected the refrigerator to a pressure of 170 lbs. The cause of the explosion was a defect in the weld of the casing. The case was submitted to the jury on the theory that Tecumseh was negligent both in manufacturing the compressor unit and in failing to discover the defect by proper inspection and that Marquette was negligent in failing to make a proper test or inspection of the unit. As to Marquette, it was shown that the customary industry practice was to submit an assembled refrigerator to a pressure of 235 to 250 lbs. while Marquette made only a 195 lb. test.

After quoting from Builders Supply Co. v. McCabe, 866 Pa. 322, 77 A.2d 368 (1951), the Court applied the principles of that case to find that Tecumseh was primarily responsible and Marquette secondarily responsible. It said that Tecumseh was responsible for manufacturing a defective unit and failing to detect the defect by proper inspection and that Marquette’s liability arose because it failed to discover or correct a defect or remedy a dangerous condition caused by Tecumseh.

Tromza is of course distinguishable from this case. In Tromza, Tecumseh manufactured the defective compressor unit and it might be argued that its primary duty was higher than that of Montgomery Ward who may have received a rim already defective. However, we view the secondary duty of Mack to inspect as considerably less than the duty of Marquette to test. The similarity in the two cases lies in the wide disparity in the duties owed by the two defendants in each case and justifies the imposition of the burden on the one having the higher duty.

The subject of indemnity between tortfeasors is dealt with in the Restatement of Restitution. Section 95 of that Restatement,⁴ which has been cited by us with approval,⁵ favors the grant of indemnity in the situation before us. That section reads as follows: “Where a person has become liable with another for harm caused to a third person because of his negligent failure to make safe a dangerous condition of land or chattels, ivhich was created by the misconduct of the other or which, as between the two, it was the other’s duty to make safe, he is entitled to restitution from the other for expenditures properly made in the discharge of such liability, unless after discovery of the danger, he acquiesced in the continuation of the condition.”

Even if it be argued that Montgomery Ward did not create the dangerous condition, it was Montgomery Ward’s duty as between it and Mack to make the condition safe. There is no evidence that Mack ever discovered the danger prior to the sale of the truck and the question of acquiescence does not arise.

Judgment affirmed.

1 Restatement (Second) of Torts §402A (1965).

2 Uniform Contribution Among Tortfeasors Act, Act of July 19, 1951, P. L. 1130, 12 P.S. §§2082-89.

3 W. Prosser, The Daw of Torts 313 (4th ed. 1971).

4 Restatement of Restitution §95 (1936).

5 Goerges v. Reading Co., 162 Pa. Superior Ct. 475, 58 A.2d 191 (1948). The section was also cited, with apparent approval, in Melts v. Pittsburgh, 387 Pa. 169, 127 A.2d 89 (1956).