The opinion
D. F. Walsh, J.
(dissenting). I must respectfully dissent. Whether indemnification is based upon the common law indemnity doctrine or an implied contract of indemnity there can be no recovery on this theory unless the party seeking recovery is free from active negligence.
In Dale v Whiteman, 388 Mich 698 ; 202 NW2d 797 (1972), relied upon by the majority, the Supreme Court discussed various theories of indemnity and concluded at 705:
"Whatever theory may be followed by the courts, the principle has been summed up in 42 CJS as follows:
'It is a well-recognized rule that an implied contract of indemnity arises in favor of a person who without *699 any fault on his part is exposed to liability and compelled to pay damages on account of the negligence or tortious act of another, the former having a right of action against the latter for indemnity * * * (42 CJS, § 21, p 596.)” (Emphasis added.)
In this case there can be no recovery against Sullivan Equipment Co. unless active negligence is proven in the principal suit. If active negligence is proven, there is no right of indemnification. Diekevers v SCM Corp, 73 Mich App 78 ; 250 NW2d 548 (1976).
I would affirm the trial court.