“It is a well-recognized rule that an implied contract of indemnity arises in favor of a person who without any fault on his part is exposed to liability and compelled to pay damages on account of the negligence or tortious act of another.”
How later courts described this case
- “It is a well-recognized rule that an implied contract of indemnity arises in favor of a person who without any fault on his part is exposed to liability and compelled to pay damages on account of the negligence or tortious act of another.”
- right to indemnification if express or implied contract
Written by the judges who cited it.
The opinion
T. E. Brennan, J.
(dissenting). The case presented is one of first impression in this jurisdiction, and it is one upon which there is a split of authority elsewhere.
In my view, the better rule is that stated in 8 Am Jur 2d, Automobiles, § 598, p 152:
"The liability of the owner of a motor vehicle under a statute imposing liability upon him for the negligence of another operating it with the former’s permission is derivative, the negligence of the operator of the vehicle being imputed to the owner. It has been held that no liability on the part of the owner, independent of the negligence of the driver, is created by the statute, so that if no liability is created by the act of the operator, there is none imposed upon the owner. Accordingly, where the operator is not liable, whether his freedom from liability arises from a want of negligence on his *710 part or from the existence of such a relation between himself and the person injured as to preclude any liability on his part for the injury, the statute does not create an independent liability on the part of the owner.”
Since our Michigan workmen’s compensation statute MCLA 413.15; MSA 17.189, provides a defense to the operator of the vehicle which injured the plaintiff Dale, that defense being that Fox, the operator, was a natural person in the same employ as the plaintiff’s employer, there could be no recovery by Dale against Fox. That being the case, the action against Whiteman, the owner of the vehicle, being purely derivative, should not lie.
I would reverse the judgments of the courts below and enter a judgment of no cause for action against the plaintiff and against the third-party plaintiff.
T. G. Kavanagh, J., concurred with T. E. Brennan, J.