dissenting.
I respectfully dissent.
The majority opinion directs the trial court to reinstate the third party petition. Although I agree with the majority opinion that the trial court dismissed the third party petition for a wrong reason — the fact that the city had no liability insurance— there is an independent reason why the dismissal was proper. This court is concerned with the propriety of the dismissal, not with the trial court’s rationale for entering it. The facts here do not permit defendants to bring in the city as a third party defendant.
Rule 52.11,1 dealing with third-party practice, reads, in pertinent part:
“At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and petition to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiffs claim against him.” (Emphasis added.)
The city is not “a person not a party to the action'who is or may be liable to [defendants-third party plaintiffs] for all or part of the [plaintiffs’] claim against [defendants-third party plaintiffs].”
*262The issue of whether the defendants’ third party claim comes within the provisions of Rule 52.11 is an issue “of jurisdiction, rather than abuse of discretion.” State ex rel. Green v. Kimberlin, 517 S.W.2d 124, 127 (Mo. banc 1974). It is required “that the claim asserted, if proved, would transfer the liability asserted against the defendant/third-party plaintiff to the third-party defendant. ‘[Tjhere must be an attempt to pass on to the third party all or part of the liability asserted against the defendant.’ ” Id.
The court also said, at p. 127:
“What is determinative is whether the facts set forth in the third-party petition constitute a basis for a theory by which the third-party defendant would be liable to the third-party plaintiff if such third-party plaintiff is found to be liable to the original plaintiff. If the liability of the third-party defendant is not dependent on the liability of the third-party plaintiff, the claim would not come within the provision of Rule 52.11.” (Emphasis added.) The court said:
“Rule 52.11 is a copy of Rule 14 of the Federal Rules of Civil Procedure. Our courts, as well as courts of other states which have adopted the federal rule as prototype, in construing the local im-pleader rule or statute have drawn frequently from federal decisions and commentaries.” Id. fn. 1.
In State ex rel. Baldwin v. Gaertner, 613 S.W.2d 638 (Mo. banc 1981), the court said, at p. 640:
“The basis of a third-party action is a common liability to the plaintiff, in whole or in part. Missouri Pacific Railroad Co. v. Whitehead & Kales Co., 566 S.W.2d 466, 468-69 (Mo. banc 1978). ‘Where there is no common liability, as here, no contribution can be obtained.’ Martinez v. Lankster, 595 S.W.2d 316, 318 (Mo.App.1980). The same ivould be true of partial indemnity. The test of the propriety of third-party impleader is ‘whether the third party is liable as a guarantor, surety, insurer or indemni-fier of the principal defendant.’ ” (Emphasis added.)
Federal Rule 14 was promulgated in 1938. “In its original form the rule permitted a third party to be impleaded who is or may be liable to him [the original defendant] or to the plaintiff for all or part of the plaintiff’s claim against defendant. Thus defendant could implead any third party who might be liable on plaintiff's claim.... [T]he rule was amended in 1948 to eliminate defendant’s right to implead persons directly liable to plaintiff.” Wright & Miller, Fed.Prac. & Proc., Vol. 6, § 1446, pp. 200-201. Thus Rule 14, in its present form, now permits defendant to implead only a person “who is or may be liable to him for all or any part of the plaintiff’s claim against him.” Rule 52.11 contains the same language.
Federal courts hold, with refreshing unanimity, that Federal Rule 14(a) does not permit a defendant to implead a third party claimed to be solely liable to the plaintiff. Millard v. Municipal Sewer Auth. of Tp. of Low. Makefield, 442 F.2d 539, 541[3] (3d Cir.1971); Pennine Resources, Inc. v. Dorwart Andrew & Co., 639 F.Supp. 1071, 1076 (E.D.Pa.1986); Hartford Acc. & Indemn. Co. v. Parente, Randolph, 642 F.Supp. 38, 41 (M.D.Pa.1985); Bike v. American Motors Corp., 101 F.R.D. 77, 78 (E.D.Pa.1984); Barab v. Menford, 98 F.R.D. 455, 456 (E.D.Pa.1983); Wright & Miller, Fed.Prac. & Proc., Vol. 6, § 1446, p. 258. See 168 A.L.R. 600 (Right of defendant to bring in third person asserted to be solely liable to plaintiff).
“The crucial characteristic of a Rule 14 claim is that defendant is attempting to transfer to the third-party defendant the liability asserted against him by the original plaintiff. The mere fact that the alleged third-party claim arises from the same transaction or set of facts as the original claim is not enough.”
Wright & Miller, Fed.Prac. & Proc., Vol. 6, § 1446, p. 257.
Under Federal Rule 14(a) “a judgment against the third party defendant must inure to the benefit of the third party plaintiff, and not the original plaintiff.” Wright & Miller, Fed.Prac. & Proc., Vol. 6, § 1446, p. 258.
*263A third party petition, like a petition, must contain: “(1) a short and plain statement of the facts showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled.” Rule 55.05. It is, therefore, necessary to examine the third party petition to see if it alleges facts showing that the defendants, the Warticks, are entitled to relief against the city. This, in turn, requires determining, under the Missouri cases cited previously, whether the third party petition alleges facts showing a “common liability to the plaintiff, in whole or in part.” Similarly the inquiry is whether the third party petition alleges facts showing that the city is liable to the War-ticks as their guarantor, surety, insurer or indemnifier.
The petition, actually the third amended petition, of the plaintiffs against defendants Wartick alleges that on June 29, 1984, plaintiff Adrienne Hall, age 4, was injured when one of two pillars, or perhaps both of them, fell upon her. The prolix petition is in four counts. Count I asserts the claim of the minor plaintiff Adrienne Hall. Counts II and IV assert the derivative claims of her parents, co-plaintiffs. Count III is asserted by “the plaintiffs” but perhaps the drafter intended Count III to be asserted only on behalf of Adrienne, since it contains no allegations of damages sustained by her parents.
In one paragraph Count I alleges that “the pillars” fell upon Adrienne. In another paragraph Count I mentions “the pillar that fell on” Adrienne. Throughout the petition, however, it is alleged that the pillar or pillars were located on the property of defendants Wartick at 217 N. Connor in Joplin and that the defendants “had possession and control of said pillars” and that the pillars “were in a deteriorated and unstable condition.”
Count III, after incorporating some of the allegations of Count I, including the allegation that the pillars were located on the land of the Warticks, alleges “that the aforesaid pillar was so close to a public alley that children because of their tendency to deviate from the alley in the exercise of ordinary care were exposed to a danger because of the unstable condition of the pillar and that defendant (sic) knew or should have known of such danger and that defendant (sic) failed to use ordinary care to barricade the danger or remove it and that as a direct result of such failure plaintiff Adrienne Hall was injured.”
The third party petition of the Warticks against the city incorporated the contents of the petition and defendants’ answer. Defendants’ answer denied that the “pillar” was located on defendants’ land. The third party petition then alleged: At all times relevant hereto, third party defendant, the City of Joplin, was the owner of an alley; “[t]here was located upon said alley a stone pillar the city had knowledge of the existence of the pillar and its location on the alley; the city had a primary non-delegable duty to keep the alley in safe condition for travel and also a duty to keep said alley free from nuisances and defects for pedestrians; the city “failed, omitted, and neglected to maintain, repair, remove, barricade or safeguard said pillar; as a direct and proximate result of the aforesaid failure, neglect and omissions on behalf of the city, the plaintiff Adrienne Hall sustained personal injury; ... as a further direct and proximate consequence of the aforesaid failure, neglect, and omissions of the city, these defendants, through no fault of their own, may be held responsible for the damages of the plaintiffs. That as a consequence, these defendants are entitled to indemnification from the City of Joplin, pursuant to the procedural substantive law of the State of Missouri; Alternatively, and in the event the trier of fact determines that the aforesaid failures, neglect, and omissions of the City combined with the alleged actions of these defendants to cause or to contribute to cause the damages claimed by plaintiffs, then these defendants are entitled to a judgment for contribution against the third party defendant the City of Joplin, all as contemplated by the doctrine of comparative fault and the doctrine of apportionment of fault.” (Emphasis added.)
*264The prayer of the third party petition requested, in the alternative, indemnity or contribution from the city.
The foregoing pleadings demonstrate that the plaintiffs’ petition is based upon a defective condition of the pillar or pillars located on the land of the defendants. If the pillars are not located on the land of the defendants, they have a complete defense to the petition.
The third party petition, on the other hand, alleges that the pillar is located on an alley owned by the city. The third party petition contains no allegation that the defendants have any ownership interest in the alley or in the pillars or are otherwise responsible for the condition of the pillars. The third party petition alleges no facts showing a common liability of the Warticks and the city to the plaintiffs. The third party petition alleges no facts showing that the city is liable as a guarantor, surety, or insurer of the Warticks.
The third party petition contains no allegations which would support a finding that the city must indemnify defendants for any liability they incur to the plaintiffs. Similarly there is no allegation in the third party petition which would support a finding of contribution between the defendants and the city in sharing joint responsibility to the plaintiffs.
The third party petition is merely an attempt to implead a third party which the defendants claim to be solely liable to the plaintiffs. In Stephenson v. McClure, 606 S.W.2d 208, 213[5] (Mo.App.1980), this court said:
“ ‘It should be borne in mind that the right to non-contractual indemnity presupposes actionable negligence of both parties toward a third party.’ Whitehead and Kales, supra, 566 S.W.2d at 468. It is a well-recognized rule that one seeking contribution as a joint tortfeasor must allege that he was a joint tort-feasor.” (Emphasis added.)
Accordingly, the trial court properly dismissed the third party petition, and this court should vacate its preliminary order in mandamus.
. Except where otherwise indicated, all references to rules are to Missouri Rules of Court, V.A.M.R.