OPINION ON REHEARING. The plaintiffs, Hilda H. Becker, Clara W. Becker, John A. Becker, and F. William Becker, seek, by injunction, to prevent the levying of an execution on certain real estate, described in the petition, by the sheriff of Hamilton county, Ohio, and the sale thereof to satisfy a judgment, of which the Royal Indemnity Company claims to be the owner. The levying of execution was instigated by the Royal Indemnity Company, claiming the right by virtue of being the owner of a certain judgment *Page 545 in a tort action obtained by one John C. Weber against David Gordon and John A. Becker and F. William Becker. Other equitable relief is asked.
The pertinent facts are as follows:
John C. Weber suffered personal injuries, caused by the negligent acts of David Gordon and the Beckers, and secured a joint judgment in the sum of $5,000 against Gordon and the Beckers. At the time the injury was suffered, David Gordon was the holder of a policy of indemnity insurance, issued by the Royal Indemnity Company, in which the Royal Indemnity Company agreed with Gordon that it would indemnify him against loss arising out of any liability not exceeding $10,000 in respect to any one accident, and limiting the liability to $5,000 for injuries to any one person; and further agreed to defend the same on behalf of the insured against all claims or suits for damages, etc., and agreed to pay all costs and expenses, pay the tax, costs, and interest charges, not in excess of the company's limit of indemnity.
After the judgment was made final, the Royal Indemnity Company paid Weber the amount of the judgment under its agreement with Gordon to indemnify him, and took an assignment of the judgment from Weber.
The indemnity company thereupon sought to collect the amount of the judgment from the Beckers and caused execution to issue as above stated.
The question here is: Is the Indemnity Company entitled to collect the judgment from the Beckers by virtue of the assignment?
It is argued here that the payment of the judgment by the indemnity company to Weber was an *Page 546 extinguishment of a debt for which it was liable, and it obtained no rights under and by virtue of the purported assignment to it by Weber.
A majority of the court are of the opinion that the plaintiffs are entitled to the equitable relief prayed for.
It has been decided in many of the states and more than once by the Supreme Court of Ohio that there can be no contribution between joint tort-feasors. It must therefore be clear that Gordon could not have contribution as against the Beckers. The indemnity company under its contract is bound to indemnify Gordon. It was not a stranger to the obligation. It was bound to defend the suit at its own expense, although in the name of the insured. In paying the judgment it did no more than it was obligated to do. It could therefore have no superior right to Gordon, and Gordon, not being entitled to maintain contribution against the Beckers, the indemnity company may not do so. Its proceeding is nothing more or less than an indirect attempt to obtain contribution between joint tort-feasors.
In support of our conclusion we cite the cases of Penna. Co. v.West Penn Rys. Co., 110 Ohio St. 516, 144 N.E. 51., and Adams v. White Bus Line, 184 Cal. 710, 195 P. 389.
The motion to dismiss the appeal is overruled.
A decree may be presented granting a permanent injunction as prayed for, and a mandatory decree may issue entering satisfaction of the judgment on the records of the court of common pleas of Hamilton county, Ohio; and, further, it is decreed that the title to plaintiff's real estate be quieted.
Decree accordingly.
CUSHING, P.J., concurs. *Page 547