This is an appeal from the judgment of the Court of Common Pleas of Allegheny County against an additional defendant for indemnification.
On June 16, 1967, plaintiff below, Samuel Mixter, purchased a used tractor from Mack Trucks, Inc., the appellee. While removing a tire, plaintiff sustained serious injuries when the tire-rim-ring assembly exploded. As a result of this accident, plaintiff instituted suit against Mack contending that the tractor was in a defective condition thereby causing plaintiff’s injuries. Mack joined as additional defendant, Montgomery Ward & Company, Inc., the appellant herein, alleging in its third-party complaint that liability rested with Montgomery because it had mounted the tires in a negligent fashion thereby causing the defective condition to arise.
The case against Mack was submitted to the jury on the strict liability of a seller under §402A of the Restatement of Torts (Second) and against Montgomery Ward on common law negligence. While it was evident at trial that some defective condition did exist, the exact cause or nature of the source of that defect was not determined. Each party submitted contradicting testimony placing responsibility on the other. The net result was that the trial court, at the close of testimony, submitted to the jury instructions that it could find the defendants, individually or jointly liable on various factual theories.
*322The portion of the Charge of Court which dealt with causation and duty read:
“Now, we said one thing, you have to determine is whether or not the tire-wheel-rim assembly — not the tire — was in a defective condition when it was sold. . . . The elements which the plaintiff must prove in a case of strict liability ... is, first, a defective and unreasonably dangerous condition on the product, the defendant’s product, in this case, the truck, . . . that is that he sold the truck to the plaintiff. . . . There is no need to determine whether there was any negligence on the part of Mack Trucks. The only issue is whether or not the truck was in defective condition at the time, which made it unreasonably dangerous, and that as a result of such condition, injury came to the plaintiff. . . .
“Now, when we discuss the case against Montgomery Ward, the situation is different. . . . [Y]ou will determine whether or not what was done . . . was negligent . . . under the circumstances. The factors which you will consider in this case will be all of the elements pertaining to, as you heard it from the various witnesses, the mounting of tires on the rim, the condition of the rim, the rust condition, whether proper steps were taken to remove the rust; if you consider that the rim was defective or rusty, whether or not there were procedures which should have been followed and were not followed; whether or not these conditions made it impossible for the tire to fit as it should upon the rim; and whether or not, as a result of these things and all of these various conditions, injury resulted to the plaintiff.
“Now, in this case we have two defendants, as I have pointed out. Mack Trucks was the original, and Montgomery Ward was the additional defendant brought on by Mack Trucks. You may find that the accident was not caused solely by the acts of either *323Montgomery Ward or Mack Trucks, that it was not caused solely by the negligence of Montgomery Ward or by reason of any defective condition in the assembly when it was sold, but that their acts occurred together in such a manner that the accident could not have happened but for the acts of both. You are instructed, when such acts — negligence and strict liability- — of two or more persons occur concurrently to produce the injury to another, each of the defendants may be liable, and you may then return a verdict in favor of the plaintiff and against both defendants, if you so find.”
The jury returned a verdict against both Mack and Montgomery Ward in the amount of f135,000. By stipulation, the parties agreed to reduce the award to $110,000 to be shared equally by the defendants. The defendants further agreed that the question of indemnification should be submitted to the court solely on the trial record. Therefore the trial judge awarded full indemnification to Mack and entered judgment against Montgomery Ward.
In so awarding, the trial court noted that the jury returned a general verdict, making no specific findings of fact with regard to either party. Nevertheless, the trial court concluded: “Interpreting the jury’s verdict consistent with the issues submitted to them through the instructions of the Court, the jury found that Mack sold the truck to Mixter in a defective condition, that the defect was in the front right tire and rim assembly and that the defect was created through the negligence of Montgomery.” (Emphasis supplied)
The general verdict of the jury, in the instant case, was not of such a character as to determine the right of indemnity as a matter of law. An examination of the record and the instructions to the jury discloses that the jury could have drawn any number of permissible inferences. In essence, on the basis of the *324charge and the facts presented, the jury could have found both Mach and Montgomery Ward to have contributed to the defective condition so as to make them jointly liable.1
It is true, as the Majority states, that the seller of a defective product is strictly liable to the injured consumer under §402A. Liability is imposed without a finding of negligence or any wrongful conduct on the part of the seller. Section 402A is, however, a means of avoiding the difficult and sometimes impossible burden on a plaintiff to prove negligence on the part of a seller or manufacturer. While the burden of showing negligence is eliminated, this does not mean that a seller of a defective product is necessarily without fault or free of negligence. While the degree of proof is lessened as between the plaintiff and the seller-defendant, such is not the case as between the seller and a third-party defendant seeking indemnification.
It has always been the law that the right of indemnity “enures to a person who, without active fault on his own part, has been compelled by reason of some legal obligation to pay damages occasioned by the initial negligence of another and for which he himself is only secondarily liable.” (Emphasis supplied) Builders Supply Co. v. McCabe, 366 Pa. 322, 325, 77 A. 2d 368 (1951) ; see also, Burbage v. Boiler Engineering & Sup*325ply Co., 433 Pa. 319, 249 A. 2d 563 (1969). Secondary as distingnislied from primary liability may be said to rest “upon a fault that is imputed or constructive only, being based on some legal obligation between the parties or arising from some positive rule of statutory or common law.” (Emphasis supplied) Burbage, supra at 327.
1 would not hesitate to join with the Majority in affirming the judgment of the lower court if the jury had specifically determined that the defect did not arise from Mack’s negligence. The conclusion that Mack’s liability was merely one imposed by some “legal obligation” or from some “positive rule” could then be determined as a matter of law. Here, there was not such a determination and nothing from which a judge could say appellee was “without active fault”. It was sheer speculation on this record to interpret the general verdict in such a manner. This was not a case where the evidence indicated an innocent manufacturer selling a defective product which defect had been created by a third party.
By agreement, the lower court was to decide appel-lee’s motion for indemnification on the record as submitted. While this empowered the trial judge to award indemnification if the record reflected that appellee was “without active fault”, this does not mean that parties may stipulate to empower the court to make such a speculative determination. If the record did not affirmatively establish that appellant was primarily liable and appellee secondarily liable solely by virtue of a legal obligation, appellee was not entitled to said relief as a matter of law. Builders Supply, supra. In such a case, appellee has not met its burden to prove that it was entitled to indemnification from the additional defendant.
*326In. those cases where indemnification has been granted, our courts have cited with approval the Restatement of Restitution §95, which provides: “Where a person has become liable with another for harm caused to a third person because of his negligent failure to make safe a dangerous condition of land or chattels, which was created by the misconduct of the other or which, as between the two, it was the other’s duty to make safe, he is entitled to restitution from the other for expenditures properly made in the discharge of such liability, unless after discovery of the danger, he acquiesced in the continuation of the condition.” See, Helz v. Pittsburgh, 387 Pa. 169, 127 A. 2d 89 (1956); Diehl v. Fidelity-Philadelphia Trust Co., 164 Pa. Superior Ct. 524, 67 A. 2d 592 (1949).
By holding both Mack and Montgomery Ward liable, without specifying whether Mack was negligent in any way or whether the defect arose solely because of Montgomery Ward’s negligent repairs, the jury left open the question of Mack’s wrongful acts. As Mack agreed to submit the question of its right of indemnity solely on an inconclusive record, it failed to meet its burden of proof in demonstrating that the defect arose through the negligence of Montgomery Ward alone.
On this state of the record, the verdict of the jury placing joint responsibility on both defendants must stand. As the parties have satisfied the judgment by paying the amount of $110,000 in equal shares, there is no issue remaining to be determined.
The order and judgment of the lower court granting indemnification to Mack should be reversed.
Spaulding, J., joins in this dissenting opinion.In the ease of concurrent or joint tort-feasors having no legal relation to one another, each of them owing the same duty to the injured party and involved in an accident in which an injury occurs, no right of indemnity exists, and there is only common law liability, even though one may have been much more negligent than the other. Builders Supply Go., iftvfru. While a joint tort-feasor may be entitled to contribution, he may not recover on an indemnity theory unless there is some special legal relationship and the liability of one party to the plaintiff arises solely by reason of said relationship and not for any wrongdoing on his part (e.g., master-servant relationship).