(dissenting).
I dissent. In the previous opinion, affirmed here today on rehearing, I dissented without stating my reasons. I am compelled to briefly state my reasons now.
While I have dispute with the manner in which the facts are put forth in the majority opinion in its effort to find some “genuine issue of material fact” as to Mack Trucks, Inc. and Roberts Rocky Mountain Equipment Co., I shall not dwell on *383that other than to say that the testimony of Harry Powley relied upon as to the purchase of an Air-O-Matic ldt from Mack Trucks, Inc. simply ignores Powley’s other testimony which made it clear that he did not order the kit through Mack Trucks, Inc. I assume that subsequently this same “fact” will be made not only clear, but crystal clear, at which time obviously Mack Trucks, Inc. will be entitled to a summary judgment.
However, the real vice in the majority opinion is this: Plaintiff (I shall refer to all plaintiffs collectively and in .general) brought a simple, “garden variety” action of negligence against Silver Bow County and its truck driver Bolton [not all plaintiffs joined Bolton] for damages resulting from .a runaway truck which obviously was negligently operated, ■so much so that the district judge ruled the county liable as .a matter of law. Defendants, under the purported authority ■of Rule 14, M.R.Civ.P., chose to file a third party claim ■against two more defendants — note, not for damages to them•selves, but rather under a theory of their being joint tortfeasors !
To make it even more clear what this Opinion is approving ■and overruling a district court to do, we reiterate what the majority holds:
Next Roberts and Mack Trucks argue that the third party ■complaints of Silver Bow County do not state a claim against them, because there is no right to contribution among joint tortfeasors in Montana and there is no right of indemnity until after payments. This argument misconstrues the gist of the third party claim of Silver Bow County against Roberts and Mack Trucks. Silver Bow County contends it was not negligent and no act or omission with which it is chargeable proximately caused the accident and that liability rests solely on Roberts and Mack Trucks. * * *”
Now then, what is the gist of the third party claim of Silver Bow County? According to what is denominated an *384answer, third party complaint and demand for jury trial, after-admitting the accident and denying any damages asserted sovereign immunity as a third defense and then in a third party complaint alleged:
“I That the plaintiff, Ray Reid, has filed against the defendant a complaint for property damage in the instant case.
“II That the negligence, damage and liability alleged by RAY REID in his complaint is not the liability of SILVER-BOW COUNTY and the accident made the basis of said complaint was beyond the control of the said SILVER BOW COUNTY and the THIRD-PARTY DEPENDANTS are liable for said accident and any proximate damage or injury therefrom for the following reasons:
“a. That the said water truck manufactured by the defendant, MACE TRUCES. INC., and sold by the defendant, ROBERTS ROCEY MOUNTAIN EQUIPMENT COMPANY, as the retailer was negligently designed in that there was a failure-to install a warning device common to such vehicles warning of the loss of air for the brake system which said warning device if it had been installed would have prevented the accident and the proximate damage and injury.
“b. That MACE TRUCES, INC., one of the third-party defendants, negligently designed the said truck in this case in not designing and installing a shut-off valve out of the air tank in the cab of said truck so that any loss of air to the steering could be shut off by the driver so that he would still have steering control and if this had been done, the accident could have been prevented.
“c. That ROBERTS ROCEY MOUNTAIN EQUIPMENT COMPANY, a third-party defendant, negligently installed a different power steering unit in not installing a shut-off valve between the air source and the steering unit in the cab of said truck and had the shut-off valve been installed in said cab of said truck as recommended by the manufacturer of said *385power steering unit, ‘Air-o-Steer’, the accident would have been prevented.
“WHEREFORE, defendant, SILVER BOW COUNTY prays that the plaintiff take nothing by virtue of his complaint and the said Third-Party Plaintiff further demand judgment against the Third-Party Defendants for all sums that may be adjudged against the said SILVER BOW COUNTY in favor of the plaintiff, RAY REID.”
Notice, no allegation of damage to either Bolton or the county was alleged. A straight allegation against a joint tortfeasor, regardless of what it attempts to say.
Rule 14(a), M.R.Civ.P. does not authorize a third party action where no substantive right exists under the state law. No right of reimbursement, indemnity, or contribution at this stage exists.
In Panasuk v. Seaton, 277 F.Supp. 979, 980, 985 (D.C.Mont. 1968), the court correctly denied either contribution or indemnity in a vehicle collision case, stating:
“Third-party defendant first contends that the claim of third-party plaintiffs in effect seeks contribution between joint tortfeasors, and that this may not be done under the law of Montana. Third-party plaintiffs contend (1) that the law of Montana does not prohibit application of the doctrine of ‘contribution;’ and (2) if the amended complaint does not state a claim for relief for ‘contribution,’ it does state a claim for relief in ‘indemnity.’
“The rule is well settled in Montana that, ‘if the concurrent negligence of two or more persons causes an injury to a third person, they are jointly and severally liable, and the injured person may sue them jointly or severally, and recover against one or all.’ Jones v. Northwestern Auto Supply Co., 1932, 93 Mont. 224, 231, 18 P.2d 305, 307. In Variety, Inc. v. Hustad Corporation, 1965, 145 Mont. 358, 368, 400 P.2d 408, 414, 401 P.2d 581, the Montana court also recognized the general rule that ‘one of several wrongdoers cannot recover against another *386wrongdoer although he may have been compelled to pay all the damages for the wrong done’.”
The court further stated in Panasuk with respect to indemnity:
“As noted supra, no case has been found where this rule has been extended to a collision between two motor vehicles. If indemnity were permitted in a case of this nature, it could arise in any action where a third person had a possible cause of action against two motorists. Each motorist could claim indemnity by alleging gross negligence of the other. This would result in the undesirable situation suggested by the Wisconsin court in Jacobs. The plaintiff in this action in order to recover from the defendants must of course prove that the defendants were negligent and that their negligence was a proximate cause of plaintiff’s injury. If this is not established, there is no liability, and no question of possible indemnity could arise. It is my conclusion that this is not a case where the principles of indemnity are applicable.”
Also in Panasuk the court noted the rule stated in Restatement, Restitution § 102:
“ ‘Where two persons acting independently or jointly, have negligently injured a third person or his property for which injury both became liable in tort to the third person, one of them who has made expenditures in the discharge of their liability is not entitled to contribution from the other.’ ”
Also see: 41 Am.Jur.2d, Indemnity, § 21, p. 710.
Thus, here the majority is approving the use of third party actions in negligence eases so as to allow complicating charges of products liability and other ramifications to interfere with the choice of plaintiff as to whom he wants to sue. Plaintiff here chose the parties directly responsible. Plaintiff must now be startled to find his choice of defendants thwarted by third party claims and his $18,500 jury verdict set aside in at least one case.
I would withdraw the Opinion rendered in Cause No. 11891 *387and would affirm the summary judgments there. I would also affirm the judgment in favor of plaintiff Tallón in Cause No. 12154.
THE HONORABLE THOMAS DIGNAN, District Judge, siting for MR. JUSTICE JOHN CONWAY HARRISON. I concur in the foregoing dissent of MR. JUSTICE CASTLES.