(concurring).
I concur in Judge Healy’s opinion. I add a few remarks concerning the dissent.
Judge Chambers invokes the rule that one who has been guilty of a tort concurrently or jointly with another cannot recover contribution or indemnity from the latter. Adams v. White Bus Line, 184 Cal. 710, 195 P. 389. In his view Lawrence Warehouse Company was a joint or concurrent tort-feasor by reason of the negligence of the watchman. This he predicates upon a further point, namely, that although the Burns Agency was an independent contractor, yet the character of Lawrence’s duty was such as to make it liable notwithstanding that circumstance. He considers that such was just what the court held in its finding in the original action by Defense Supplies Corporation, that the negligence of Lawrence and Capitol Chevrolet “concurred and joined together to destroy plaintiff’s goods.” Like Judge Healy, I can find no authority for holding Lawrence liable for breach of a non-delegable duty. Even assuming that as against Defense Supplies it would be no defense to Lawrence that Burns Agency was an independent contractor, yet I think the situation is different in this suit in which Lawrence seeks indemnity from Capitol Chevrolet.
Behind the rule that the joint tortfeas- or may not récover contribution or indemnity is the reasoning that he ought not to recover because he is “ ‘equally culpable or particeps criminis’ ”.1 The reason for the rule is akin to the reason behind the clean hands maxim.
Now when we consider the rule against recovery by a concurrent or joint tortfeasor in the light of the reason behind it, it seems to me that it should have no application here as between Lawrence and Capitol Chevrolet. For whatever may have been Lawrence’s duty to De-fence Supplies yet as between Lawrence and Chevrolet, Lawrence cannot be regarded as “ ‘equally culpable or particeps criminis’ ” for the fault was not that of Lawrence, — it was that of the independent contractor only.
. This expression from Gray v. Boston Gas Light Co., 114 Mass. 149, was quoted with approval in Union Stock Yards Co. of Omaha v. Chicago, B. & Q. R. Co., 196 U.S. 217, 226, 25 S.Ct. 226, 228, 49 L.Ed. 453.