joined by Justice Taylor, dissenting.
I am in accord with the holding of liability of both Mrs. Love and Humble for the injuries sustained by respondents, but respectfully dissent from the holding that Humble be indemnified by Mrs. Love.
The facts are undisputed that Mrs. Love, who was a regular customer of Humble, left her car on this occasion with Humble to have it serviced. When Mrs. Love first drove up to the service station, Manis, one of the employees of Humble, was working on another car. Mrs. Love told Manis what she wanted done to her car, and then sat in her car for several minutes, when she said to Manis: “I want to get some groceries at the store; will it be all right to leave my car here and go get them?” Manis replied: “That is perfectly all right, leave it right where it is.” Mrs. Love then killed the motor, put the car in reverse gear, and left the station to go to the grocery store. She did not set the hand brake. The gears and clutch of the Love car were shown to be in good condition. Some time after Mrs. Love left the station the car was seen to commence rolling slowly towards the street. At this time Manis was in the office, and he saw the car crossing the street.
The jury found that the car had been delivered into the custody of Humble prior to the time that it started rolling from the position in which Mrs. Love had left it. The jury also found Humble guilty of the following acts of negligence, which proximately caused the injuries complained of: (1) Failure to inspect the Love car to see that the brake was set or the gears engaged; (2) failure to set the brakes on the Love car; and (3) leaving the Love car unattended on its driveway. The jury also found that failure to warn Mrs. Love that the driveway where she parked her car was not level was negligence.
The jury found that the gears of Mrs. Love’s car were not *187defective, and that Mrs. Love did not fail to properly place the gears of her car in reverse to prevent it rolling. The jury found that Mrs. Love was guilty of negligence in failing to set the emergency brake on the car. They also found that Mrs. Love “in leaving her car on the driveway under the facts and circumstances then existing” was not negligence. None of the acts of negligence of either Humble or Mrs. Love was found by the jury to be the sole proximate cause of the injuries to the Martins.
Based upon these findings of the jury, the trial court entered judgment in favor of respondents against Humble and Mrs. Love, and in favor of Mrs. Love as indemnity against Humble, The Court of Civil Appeals reversed the judgment of the trial court, and remanded this cause to the trial court to be retried upon the issue of contribution between Humble and Mrs. Love, as provided for in Article 2212. Mrs. Love contends that the judgment of the trial court should be sustained, while Humblé contends that the judgment of the trial court should be reversed, and that judgment be rendered in its favor as indemnity against Mrs. Love.
Certain fundamental rules are established authorizing a party under certain facts to be entitled to contribution or indemnity against the other party. Independently of any statute relating to contribution, the general.rule, based upon consideration of public, policy, is that there can be no contribution as between joint tort-feasors equally guilty. Oats v. Dublin Nat’l Bank, 127 Texas 2, 90 S. W. (2d) 824; Gattegno v. The Parisian (Tex. Com. App.), 53 S. W. (2d) 1005; Wheeler v. Glazer, 137 Texas 341, 153 S. W. (2d) 449; Austin Road Co. v. Pope, 147 Texas 430, 216 S. W. (2d) 563.
In Oats v. Dublin Nat’l Bank, supra, this Court said: “Aside from the statute, it is held in negligence cases that, where two persons are liable to another for tort, the active wrongdoer should indemnify the one whose wrong is only passive. City of San Antonio v. Smith, 94 Texas 266, 271, 59 S. W. 1109; East Texas Public Service Co. v. Johnson (Tex. Com. Appls.) 6 S. W. (2d) 344. In other cases the principal delinquent is often held responsible to the codelinquent when under the facts the parties are not equally culpable. 10 Tex. Jur. pp. 554, 555, sec. 15; 6 R. C. L. pp. 1057, 1058, sec. 18.”
Article 2212 of the Revised Statutes is a departure from the general rule, and permits a tort-feasor, when the evidence justifies it, to enforce contribution.
*188The majority opinion of this Court reverses both the judgment of the trial court and that of the Court of Civil Appeals, and renders judgment that Humble recover against Mrs. Love, by way of indemnity, such sums as it may pay or be required to pay to the Martins. In support of this holding the cases of Wheeler v. Glazer and Austin Road Co. v. Pope, supra, are cited. In neither of those cases was it held that a negligent defendant was entitled to indemnity from a negligent codefendant. In the first case, Wheeler v. Glazer, we held that a negligent defendant in a tort action was not entitled to indemnity from a codefendant who was found by the jury not to have been negligent as to him. The question there decided, as I view it, is not at all analogous to the question under review. There one of the defendants exercised ordinary care to avoid a collision with the other defendant’s truck, and was not, therefore, a wrongdoer as to him. In Wheeler v. Glazer this Court considered both the general rule and Article 2212 of the Statutes, and I quote the following from that opinion:
“In 10 Tex. Jur. 554 it is said: ‘Thus, where the parties are shown not to have been equally guilty, the principal delinquent may be held responsible to a codelinquent for damage paid by reason of the offense in which both were concerned in different degrees as perpetrators.’ ”
The opinion further says: “Where the injury forming the basis for the judgment against the joint tort-feasor results from a violation of a duty which one of the tort-feasors owes to the other, the latter, at common law, is entitled to contributions or indemnity from the former.” And in discussing Article 2212 it is also said: “Moreover, the statute (Article 2212) here relied on by Glazer was enacted to prevent inequities between joint tort-feasors. It would not be within the spirit of this statute to allow a right of contribution in favor of a tort-feasor where the event which brought about the injury resulted from his violation of a duty which he owed to the other tort-feasor from whom contribution is sought.” (Emphasis mine.)
In the other case cited by the majority, Austin Road Co. v. Pope, 147 Texas 430, 216 S. W. (2d) 563, one negligent defendant was denied indemnity against his negligent codefendant, but his right of contribution was affirmed. In that case one of the defendants was negligent in failing to maintain a watchman at a place where loaded trucks of the other defendant were backed through a narrow passageway on a street where construction work was being carried on, and the driver of a truck was negligent in failing to keep a proper lookout, in operating *189his truck on the west lane of the west side of the street, and in failing to sound his horn as a warning. There each defendant committed independent acts of negligence of the same general nature as those committed by the defendants in the case before us. But we held that neither defendant was entitled to be indemnified by the other. To my mind, the facts of that case are stronger on the side of the party seeking indemnity than are those in the instant case on the side of Humble. In that opinion, in denying the right of indemnity, we said: “* * * the rule does not apply where the joint tort-feasors are not in pari delicto as to each other, as where the injury resulted from- a violation of the duty one owes the other.” (Emphasis mine.)
In 42 C. J. S., p. 604, sec. 27, subsec. a, the rule is stated as follows: “As a general rule one compelled to pay damages for the negligent or tortious act of another is not entitled to indemnity from the latter where both parties are joint tort-feasors or in pari delicto.” Many decisions from Texas and other jurisdictions are cited in the footnotes to sustain this rule.
Why Article 2212, relating to contribution, should be applied to facts of that case was summed up in the following language: “The act of neither was the sole proximate cause. Both tortfeasors were present on the scene, either in person or by representatives, and each participated in the wrong. Either one or both might have prevented the wrong. Neither did. Each owed the other the same due care, and each owed the duty to exercise ordinary care for the safety of the injured party. Both violated these duties. Consequently, each was guilty of the same quality of negligence toward the injured workman. Thus they stand in pari delicto with each other and must, under the statute, share equally the burdens arising from their wrongful conduct.”
Humble having accepted the car for service, the possession of the car, under the facts, passed into the hands of Humble as a bailee. Therefore, Humble was primarily responsible for the car while the car was in its custody and possession, and its liability with respect to the car is that of a bailee. 5 Tex. Jur. Supp., p. 251, sec. 13, p. 252, sec. 14; Simms v. Sullivan, 100 Or. 487, 198 Pac. 240, 15 A. L. R. 678, and authorities cited therein. Humble having accepted the car as bailee, it became primarily liable to third persons for any injuries which might be cáused by the car on account of Humble’s negligence while in its custody and control, and the length of time the car remained in the hands of Humble before it caused the injuries complained of does not alter the duty of Humble as bailee to Mrs. Love.
*190Mrs. Love had ceased to exercise control of the car, and had gone to the grocery store, and she was not present at the time the car rolled out of the station. The jury found Humble guilty of negligence on several issues, while they found Mrs. Love guilty of negligence on only one issue; and when considered in connection with the other issues found in favor of Mrs. Love, that finding of negligence on her part became negligible as compared with the findings of negligence against Humble. Consequently, it cannot be said that she was equally guilty as a tort-feasor with Humble, or that she and Humble were in pari delicto as to each other at that time, with reference to the car.
The findings of negligence on the part of Humble by the jury also show a finding of a breach of duty owed by Humble to Mrs. Love, under the facts of this case, and such findings certainly would not justify a judgment of contribution, much less a judgment of indemnity, in favor of Humble over and against Mrs. Love. On the contrary, the jury having found that Humble had breached' a duty it owed Mrs. Love, this justifies a judgment of indemnity in favor of Mrs. Love over and against Humble. Wheeler v. Glazer, supra; Austin Road Co. v. Pope, supra; 18 C. J. S., p. 16, sec. 11 b (1).
In 42 C. J. S., p. 596, sec. 21, relating to the rule authorizing a recovery of indemnity for another’s wrong, the general rule is stated as follows: “One compelled to pay damages on account of the negligent or tortious act of another has a right of action against the latter for indemnity.”
The findings of the jury unquestionably establish that Humble is primarily responsible for the negligence or wrongful act which caused the injuries, and if Mrs. Love is compelled to pay damages on account of the negligence of Humble, she has a right of action against Humble for indemnity. See 42 C. J. S., p. 600, sec. 23.
To permit Humble to recover against Mrs. Love, the findings of the jury would have to show that Mrs. Love was equally guilty with Humble, and that Humble was not guilty of breaching a duty it owed Mrs. Love with respect to the car. The findings of the jury show to the contrary, and this Court is not justified in disregarding the findings upon these issues. It follows, as was held by this Court in the two recent cases above cited, that the right of indemnity does not exist in favor of Humble against Mrs. Love, and it also follows from the findings of the jury that the right of indemnity does exist in favor of *191Mrs. Love against Humble. The judgment of the Court of Civil Appeals should be reversed, and the judgment of the trial court should be affirmed.
Associate Justice Taylor joins in this opinion.
Chief Justice Hickman agrees with it in large part, but regards the question, as between the defendants, as one of contribution, as held by the Court of Civil Appeals.
Opinion delivered June 15, 1949.
Rehearing overruled October 5, 1949.