dissenting: In my opinion the court misconstrues the legislative intent in K. S. A. 60-2413 (b). The construction of this section of the statute is the only point of law presented on appeal.
When the case of Fort Scott v. Railroad Co., 66 Kan. 610, 72 Pac. 238, was decided, the section in the code of civil procedure giving rise to the decision was the predecessor of and appeared as G. S. 1949, 60-3437. Upon enactment of the new code of civil procedure the old code was repealed. (L. 1963, ch. 303, § 60-2609.) Therefore, when G. S. 1949, 60-3437 was repealed the decisions construing it fell with its repeal.
A review of the history of K. S. A. 60-2413 (a) and (b) makes it apparent the legislature did not intend to re-enact G.S. 1949, 60-3437 as construed by the Fort Scott case.
The new code of civil procedure as originally drafted was the product of the Kansas Judicial Council, and when it was submitted to the legislature by the Judicial Council and recommended for adoption, the section on contribution between joint obligors was 60-2513. The caption and text of this section as submitted to the legislature read as follows:
“60-2513. Contribution Between Joint Obligors, (a) Generally. Persons jointly liable to another [whether] in contract [or in tort, except for torts intentionally inflicted,] are entitled to contribution among themselves as heretofore recognized by principles of equity [in obligations arising out of contract]. Such right of contribution may be asserted in separate actions or *441by way of cross-claim, interpleader, or intervention under the provisions of article 2. [Brackets added.]
“(b) Judgment Debtors. A right of contribution or indemnity among judgment debtors, arising out of the payment of the judgment by one or more of them, may be enforced by execution against the property of the judgment debtor from whom contribution or indemnity is sought.” (J. C. B., November, 1962, Special Report, Recommendations, p. 38.)
The committee notes appended to this section in the Judicial Council Bulletin read as follows:
“This section takes the place of G. S. 60-3437, which has been considered grossly inadequate. The present section extends the right of contribution to joint tortfeasors on well-known principles of equity heretofore applicable only to contract liability. No judgment is necessary in order for the remedy of contribution to be available. If one of several discharges' the joint liability he may have contribution from the others. Rights of indemnity are not affected.” (J. C. B., November, 1962, Special Report, pp. 38, 39.)
The legislature upon enactment of the new code of civil procedure eliminated the words in brackets found in 60-2513 (a) above, which now appears as K. S. A. 60-2413 (a). Paragraph (b) was not changed.
It is to be noted the captions in the new code of civil procedure were provided by the legislature when the new code was enacted. Therefore, the caption “Contribution between joint obligors” was intended to cover both paragraphs (a) and (b) in the section. Paragraph (a) refers to contribution between joint obligors generally, and paragraph (b) refers to contribution between joint obligors who are judgment debtors indicating how the “right of contribution” “may be enforced” where the judgment is paid by one or more of the joint obligors.
As the section was originally submitted to the legislature by the Judicial Council paragraph (b) was clearly dependent upon paragraph (a), and the elimination of the words in brackets, heretofore mentioned, did not change the basic intent of the two paragraphs in this section. In other words, paragraph (b) is dependent upon paragraph (a) and paragraph (b) is thereby limited to contribution between judgment debtors who are jointly liable in contract, the legislature in paragraph (a) having specifically eliminated the right of persons jointly liable in tort to contribution.
Gard, in his commentary in the Kansas Code of Civil Procedure Annotated, says:
*442. . The express retention of the common-law principle of contribution among persons jointly hable in contract, and the exclusion of any reference to tort liability, would seem strongly to imply that there should be no contribution among joint tort feasors even when there is a judgment against them. At least that appears to be the meaning upon the face of the provision. ‘A right of contribution’ mentioned in subsection (b) plainly refers to the right of contribution recognized by subsection (a), so that resort to execution among judgment debtors would seem not to be available except to enforce a right of indemnity. If this is true the decision in Ft. Scott v. Kansas City, Ft. S. & M. R. Co., cited in the committee notes, supra, is overruled by this section. Only a supreme court decision can straighten it out.
“Even under the former law it was an anomalous condition to have partial contribution in tort. The old law gave the plaintiff control over contribution in tort cases by electing to sue less than all of several joint tortfeasors. There was contribution between those against whom the judgment was rendered but none against the others who were not sued, and who frequently were the most culpable.
“One reason why contribution on broad conventional grounds has not been feasible in Kansas heretofore was the lack of third party procedures through which the right could be enforced. Such procedures are now available through interpleader, cross-claims, and intervention, so that an acceptable tortfeasor contribution act probably is indicated now as a desirable improvement in Kansas jurisprudence." (§ 60-2413, pp. 816, 817.)
The court in its opinion relies upon the Fort Scott case as precedent for its decision, thereby resurrecting a dead horse.
It is respectfully submitted the judgment of the lower court should be affirmed.
Price, C. J., joins in the foregoing dissenting opinion.