(dissenting):
I dissent from the result reached by the majority opinion and would affirm the trial court.
Although our eventual acceptance of the rule of strict tort liability has been foreshadowed at least since State Farm Mutual Auto Insurance Co. v. Anderson-Weber, 252 Iowa 1289, 110 N.W.2d 449, the present case is our first direct approval of that principle. I agree with the doctrine but challenge its application to the record now before us.
The facts set out in the majority opinion show plaintiff seeks indemnity or contribution from Ford Motor • Co., alleging Ford had sold plaintiff’s insured a truck with faulty brake assembly. This defect, it is claimed, later caused an accident for which plaintiff was compelled to pay $17,-500.00. It is this amount plaintiff seeks to recover.
Plaintiff’s entire case depends upon the existence of evidence from which a jury could find a small hold-down nut was missing from the brake assembly at the time the vehicle left the Ford factory. There is no such evidence, either direct or circumstantial.
The testimony shows a brake failure some 21 months and 31,602 miles after the sale of the truck to plaintiff’s insured. During that interval it had been subjected to rigorous use hauling dry and liquid fertilizer over good roads and bad and through farm yards and fields.
Examination of the brakes immediately after the accident disclosed the absence of a small hold-down nut. It is conceded this *686nut is important to the proper adjustment and long-term operation of the brakes.
The only evidence concerning the nut is that it was not present after the accident. No witness was able to say how long the nut had been missing nor if, indeed, it had ever been on at all. Plaintiff’s expert refused to speculate on either of these matters.
Plaintiff’s case is entirely circumstantial. Such evidence must establish its theory as “reasonably probable, not merely possible, and more probable than any other theory based on the evidence.” State Farm Mutual Auto Insurance Co. v. Anderson-Weber, supra, 252 Iowa 1289, 1302, 110 N.W.2d 449, 456. It need not, however, exclude every other possible theory.
The majority relies on this pronouncement in saying the jury should have been permitted to say the elusive nut was not in place on July 24, 1962, (the date of manufacture) because it was missing on May 23, 1964 (the date of the accident). The detail which is said to justify this is the fact that the presence or absence of the nut could be determined only by removing the entire brake drum and there is no evidence this was ever done.
I believe this view authorizes a jury to find negligence by resort to speculation and surmise. The facts here afford no basis upon which Ford could be found negligent in the manufacture of the truck. .The vehicle had been in constant service for almost two years; it had been driven almost 32,000 miles under demanding conditions; it had been worked on by several garages from time to time; it is admittedly impossible to tell when or how the nut was lost; it is conceded the brakes had used up almost 90 percent of the life of a perfect system; it is shown the brake system had been worked on by several mechanics prior to the accident; it appears from the evidence the nut could have been lost or destroyed after the vehicle left the factory; and it is clear the nut could have been lost or destroyed in the accident itself.
All this belies the claim that plaintiff’s evidence makes its theory “reasonably probable” or “more probable than any other theory based on the evidence.”
Admittedly plaintiff’s burden of proof in establishing negligence at a remote time and place is a difficult one. However, in adopting the rule of strict liability and extending to plaintiff an additional theory of recovery, we should not also forfeit the fixed rights of defendant. One of these is that plaintiff must prove negligence as in any other case.
The cases reviewed by the majority do not support the result reached. Most of them, like Pryor v. Lee C. Moore Corp., (10 Cir.), 262 F.2d 673, and McKinney v. Frodsham, 57 Wash.2d 126, 356 P.2d 100, involve defects — one a faulty design and the other a weak weld — which could be positively demonstrated after a long period of time. In Wallace v. Herman Body Co., 349 Mo. 1093, 163 S.W.2d 923, the offending vehicle was only four months old. No authority cited is comparable to the one before us.
I think this is a poor set of facts to mark our first venture into the area of strict tort liability. It comes perilously close to espousing liability without fault.
LARSON and MASON, JJ., join in this dissent.