I am unable to agree with the majority opinion rendered in this case. It is fundamental that actions at common law for torts did not survive. It, therefore, requires an act of the legislature to bring about that result.
As I view the opinions which have construed sections 5438 and 5431, Revised Statutes 1909, there is no cause of action presented in the records before us. The case of Showen v. Street Rv. Co., 164 Mo. App. l.c. 47, 148 S.W. 135, expressly holds that section 5438, Revised Statutes 1909, applies only to actions which are pending. While this case was criticised by one member of Division Number Two of the Supreme Court, it was not overruled and Division Number One has, in the case of Downs v. United Railways Co., 184 S.W. 995, cited with approval the Showen v. Railway Company case.
Whatever may be said concerning the nature of the action here brought as to indemnity, the cause is fundamentally founded on a tort. Section 5431. Revised Statutes 1909, cannot apply to the state of facts here because it deals with defendants in a judgment whereas in the present case the defendants here were not defendants in the original suit of Abbott v. City. The majority opinion therefore, is in conflict with the case of Showen v. Street Railway Company, 164 Mo. App. 41, 148 S.W. 135, by the *Page 130 St. Louis Court of Appeals, which has not been overruled, and is in conflict with the cases of Bates v. Sylvester, 205 Mo. 493, 104 S.W. 73, and Millar v. Transit Co., 216 Mo. 99, 115 S.W. 521, and for that reason I ask that the case be certified to the Supreme Court.