1. It is the general rule that one of two or more joint tort-feasors has no right of action over against those connected with him in the tort, for either contribution or indemnity, where he alone has been compelled to satisfy the damages resulting from the tort. But there is an exception to this rule, where the liability of the tort-feasor, who has been compelled to pay the damages, arises merely from negative acts or omissions on his part, such as failing in his duty to inspect, and where the proximate cause of the injury, with respect to the joint tort-feasors, consists in active positive acts of negligence on the part of the other tort-feasors in which the one compelled to pay the damages did not participate. Under the allegations of the petition in the instant case, the exception and not the general rule applies as to the right of indemnification of the plaintiff over against the defendant tort-feasor. This case is controlled by Central of Georgia Railway Co. v. Macon Railway Light Co., 140 Ga. 309 (78 S.E. 931).
2. The court erred in sustaining the demurrer to counts 1 and 2, and to the petition as a whole. DECIDED JULY 10, 1943. REHEARING DENIED JULY 30, 1943. *Page 784 The petition as amended alleged substantially that the plaintiff was in the business of selling and servicing electrical refrigerators of the General Motors manufacture known as frigidaires; that in the course of servicing and repairing these frigidaires, whenever it became necessary for any repair work to be done upon the electric motors which are a part of the mechanical unit, plaintiff engaged the services of United Motors Service in making all such motor repairs for its account, in which business United Motors Service specialized; that although plaintiff did not sell the frigidaire in question to the Kantors, it nevertheless was engaged by them to service it on a certain occasion when it was out of operation; that plaintiff's service man, after inspecting the frigidaire in the Kantor home, found that the only trouble was in the electric motor, which was noisy and needed repairs, and removed the motor from the frigidaire and took it to the place of business of United Motors Service, the defendant, for inspection and repairs; that the defendant undertook to make the repairs for the plaintiff, and billed the plaintiff therefor; that after the defendant had undertaken to inspect and repair said motor it returned the same to plaintiff as repaired, and plaintiff immediately re-installed it in the Kantor frigidaire. Approximately six to seven weeks later, the Kantors complained to plaintiff that their frigidaire had become noisy again, whereupon the plaintiff's service man called to inspect and found that the electric motor knocked and was noisy, and again detached the motor and returned it to United Motors Service to make the necessary repairs thereon; that after the defendant had had the motor at its place of business for two days, it returned the same to plaintiff as having been repaired, and plaintiff immediately had it re-installed in the Kantor frigidaire. Thus it was that the Kantors never had any contact or dealing with United Motors Service but only with the plaintiff. Within thirty-six hours thereafter a fire originated in the electric motor of the frigidaire and spread throughout the Kantor's kitchen causing a loss to the Kantors of approximately $2500. The petition alleged further that as a result of the fire, the Kantors filed two separate suits against Advanced Refrigeration Inc. in the civil court of Fulton County, and recovered judgments against it in the sums of $700 and $500 respectively, plus costs; that when said suits *Page 785 were served upon Advanced Refrigeration Inc., and while the same were pending and before trial, Advanced Refrigeration Inc. served United Motors Service Inc., with notice of the pendency thereof, and notices of vouchment, calling upon United Motors Service Inc. to appear and defend each of said cases upon behalf of Advanced Refrigeration Inc., and notifying them that any judgment which might be rendered against Advanced Refrigeration therein would be chargeable to United Motors Service Inc.; that the sole question at issue in the original actions filed by the Kantors, as aforesaid, against Advanced Refrigeration Inc., was whether the latter had failed to exercise ordinary care and diligence in repairing said electric motor and in returning the same to the Kantors as repaired when said Advanced Refrigeration knew or in the exercise of ordinary care should have known that the motor was still defective and hazardous. In paragraph 17 of plaintiff's amendment it was further alleged that "Plaintiff was not engaged in that portion of the refrigerator service business which required repairing electric motors and had no facilities for repairing or inspecting defective electric motors, and was entirely inexperienced as to repairing and inspecting the mechanism of electric motors, and had to rely on the skill and knowledge of United Motors Service Inc. for making all repairs, inspections, etc., which were necessary upon electric motors attached to frigidaires which it serviced; that the electric motor involved in this transaction was an intricate mechanism entirely housed and concealed in a heavy metal casing, the working mechanism of said motor not being exposed to view and it being necessary in order to repair said motor and to inspect the same for the motor to be taken down by electrical experts such as defendant herein; that when defendant returned the motor to plaintiff as having been repaired on September 10, 1941, plaintiff assumed that defendant had done its duty in properly inspecting said motor and in properly repairing said motor and in properly inspecting said motor after it had been repaired before returning it to plaintiff and that said electric motor contained no defects whatever, there being nothing about said motor tending reasonably to call attention to plaintiff of any defect which might be concealed therein; . . . that it was not possible for plaintiff to inspect the repair work which it had engaged defendant to perform on said motor without dismantling it. Plaintiff did not participate in any manner *Page 786 in repairing said electric motor or in inspecting the defective condition of said motor either prior to the time it delivered the same to defendant or after the same was returned to it by defendant on September 10, 1942, as aforesaid, for the reasons hereinabove set out. Plaintiff further alleges that in the exercise of ordinary care it could not have discovered any defect within the electric motor after the same had been returned to it by defendant as aforesaid." The petition also alleged that the plaintiff was subjected to liability in the two suits brought by the Kantors against it, not for its own immediate wrong in failing to repair said electric motor properly, but solely because of the wrong and neglect of United Motors Service in said respect. The petition sounded in two counts, the facts in support of each being the same, except that count 1 stands upon the voucher alone, whereas in count 2 petitioner predicates liability on certain specific acts of negligence which it charges the defendant was guilty of in failing to properly repair said motor for its account. Plaintiff prayed for judgment against United Motors Service in exactly the sums for which it had been mulcted as a result of having been compelled to pay on account of the judgments rendered against it in the Kantor cases. The sole question presented here is whether the petition as amended stated a cause of action on either of its counts. This is a case where, according to the allegations of the petition, the original liability was imposed upon the plaintiff because of the negligence of an independent contractor, the defendant, whom the plaintiff had employed to do a particularly specialized repair job upon an electric motor in a frigidaire of third parties, who had employed the plaintiff to service and repair their frigidaires. The plaintiff upon the complaint of the third parties, removed the electric motor from the frigidaire and employed the defendant to repair the same. The motor was entirely enclosed in a metal casing, and the plaintiff removed the motor from the frigidaire and turned the casing and the motor enclosed therein over to the defendant to repair without tampering with it in anyway. When the defendant brought the motor back to the plaintiff, the plaintiff merely reinstalled it in the frigidaire, and on account of defective repairing *Page 787 by the defendant, in less than thirty-six hours thereafter a fire originated in the electric motor and spread throughout the kitchen causing the damage sued for.
If the defendant itself, as the representative of the plaintiff, had detached the motor from the frigidaire and then when it had been purportedly repaired, re-installed the same, we think the case would have come clearly under that of Central ofGeorgia Railway Co. v. Macon Railway Light Co., supra, where the Supreme Court said: "While it may be true that as a general rule one of two or more joint tort-feasors has no right of action over against those connected with him in the tort, for either contribution or indemnity, where he alone has been compelled to pay the damages resulting from the tort, yet in some cases one who is liable as a tort-feasor because he has failed to exercise due care to discover a defect or danger in machinery, appliances, or place where the injured person is required to work, and has been compelled to pay damages for injuries growing out of the tort, may have a right to recover over against another whose negligence produced or brought about the defect or dangerous condition in the machinery, appliances, or place, which defect was the proximate cause of the injury."
The mere fact that the plaintiff removed the motor from the frigidaire and delivered it to the defendant to be repaired, and after the defendant had allegedly repaired the same, re-installed it in the frigidaire, where the petition alleges that the defective repairing of the motor was the sole cause of the fire, would not take it without the rule stated in Central of GeorgiaRailway Co. v. Macon Railway Light Co., supra; for on demurrer, we must accept the allegations of the petition as true. And so accepting the same we must assume that no act of the plaintiff had anything to do with any negligence in repairing the motor and that the plaintiff did not participate in any active negligence which produced the injury; its only negligence, if any, being failure to inspect it. While it is the general rule that one of two or more joint tort-feasors has no right of action over against the ones connected with him in the tort for either contribution or indemnity, where he alone has been compelled to satisfy the damages resulting from the tort, yet if it should appear from the petition that the negligence, which resulted in the injury for which the plaintiff was held liable in the first instance, did not consist of positive and creative acts *Page 788 upon the part of the plaintiff in the present case, but merely grew out of a failure to inspect, and that the wrongful act, bringing about the unsafe condition from which the injury resulted, was the positive and creative act of the defendant in repairing the motor, there would be a final and ultimate liability of the defendant; and the courts make a difference between negligence consisting in omission or failure to make proper inspection, and negligence in the performance of positive and creative acts, as where one creates or maintains the unsafe or dangerous act causing the injury. We think the following language is applicable in the instant case: "The case should be tried and the plaintiff be permitted to show, if it can, by competent evidence, that the proximate cause of the injury to the plaintiff's employee, for which it has already been mulcted in damages, was the result of positive wrongful acts and negligence upon the part of the defendant in the instant case, and that the plaintiff had not participated in these wrongful acts and was not a mere joint tort-feasor in the sense that it had been guilty with the defendant of the same or like negligence which resulted in causing the . . . injuries." Central of Georgia Railway Co., v. Macon Railway Light Co., supra.
The cause of action is sustainable on the theory that the proximate cause of the injury, for which the plaintiff has already been mulcted in damages, was the positive wrongful act and negligence of the defendant, in which the plaintiff did not participate, and was not a mere joint tort-feasor in the sense that he had been guilty with the defendant of the same or like negligence, which resulted in the injury to a third person.Georgia Power Co. v. Banning Cotton Mills, 42 Ga. App. 671,672 (157 S.E. 525). The instant case is controlled by Centralof Georgia Railway Co. v. Macon Railway Light Co., supra, and Georgia Power Co. v. Banning Cotton Mills, supra. See, also George A. Hormel Co. v. General Motors Truck Co.,55 Ga. App. 476 (190 S.E. 415). The court erred in sustaining the general demurrer to each count, and to the petition as a whole.
Judgment reversed. Broyles, C. J., and Gardner, J., concur.
ON MOTION FOR REHEARING.