(dissenting).
The principal issue involved in this appeal is one of novel impression in this jurisdiction, as to which we are bound by no precedent of this court. As justice, equity and, in my view, sound principles of law, all require a reversal of the judgment of the lower court, I most respectfully dissent.
The judgment of the lower court and the opinion affirming the same are, in the final analysis, based on the proposition, stated in the opinion, as follows:
“Throughout this case each insurance carrier is in the same legal position as its insured.”
*601Were this a suit based on the principle of subrogation, I would not disagree with the foregoing statement. Travelers has sued, however, not as a subrogee of its insured or of any other person, but brings a suit for contribution which is an independent right, inherently equitable in nature. 18 Am.’ Jur. (2d) 9, Contribution, Sec. 3. The doctrine and right of contribution is founded upon principles of equity and natural justice and comes from the application of principles of equity to the condition in which parties are found in consequence of some of them, as between themselves, having done more than their share in performing a common obligation. It is separate and distinct from the equitable principle of subrogation and is not derived therefrom. 18 C. J. S., Contribution, § 2, p. 4; Central Banking & S. Co. v. United States Fidelity & Guaranty Co., 73 W. Va. 197, 80 S. E. 121, 51 L. R. A., N. S., 797; Hunsucker v. High Point Bending & Chair Co., 237 N. C. 559, 75 S. E. (2d) 768.
The principles upon which the right to contribution rests are set forth in our early case of Screven v. Joyner, 1 Hill Eq. (10 S. C. Eq.) 252, as follows:
“The liability to contribute is the result of a general equity, founded on the equality of burthens and benefits;’ Harris v. Ferguson, 2 Bail. 397. To establish the right of contribution, the plaintiff must shew that his payment has removed a common burden from the shoulders of himself and the defendant, and that they are each benefited by it. This occurs in all cases of payments madt by one surety, on the debt for which several are bound — a common burden is removed and a common benefit received.”
The .cited case of Harris v. Ferguson, supra, is authority for the proposition that there is no significance to the fact that the two insurers here were bound to the common burden by separate policies of insurance, and the further proposition that insolvency of one or more of the liable parties, as here, leaves the burden to be borne equally by those who are solvent. In the instant case neither of the insurers was a wrongdoer, and the reason underlying the rule denying *602contribution to a joint tort feasor is entirely absent. Both insurers involved are bound not as tort feasors, but as a result of the perfectly lawful contracts which they issued. To allow one of them to recover contribution from the other impinges not at all on the rule laid down in Atlantic Coast Line R. Co. v. Whetstone, 243 S. C. 61, 132 S. E. (2d) 172, denying indemnity or contribution in favor of one tort feasor against another, since neither is a tort feasor. That Bessinger is a tort feasor is immaterial, since Travelers, is not.
When the judgment was obtained by the plaintiff Gray in the tort action, the two insurers, as a result of their separate policies, and subject, of course, to any policy limits or defenses which either might have, became equally bound by a common burden and a duty to pay the judgment which Gray had obtained. Travelers has been forced to pay all of this common burden and is suing on its independent right of contribution which arose not out of any right of its insured, but independently, out of Travelers having been forced to pay for the benefit of Allstate its share of a common and equal burden. Accordingly, the complaint alleges a good cause of action under the principles established in this state in the above cited cases of Screven v. Joyner and Harris v. Ferguson
There is, admittedly, precedent from other jurisdictions supporting the conclusion that the carriers here are in the same legal positions as their respective insureds. In some instances, where such rule has been applied, the actions appear actually to have been brought on the principle of subrogation, rather than contribution as here, and in others the courts either assumed that the actions were based on subrogation, or simply did not consider the features which distinguish subrogation and contribution. In brief, I have found no soundly reasoned authority from any jurisdiction which would warrant this court following the same and reaching a clearly unjust result. I would, accordingly, reverse the judgment of the lower court.
Brailsford, J., concurs.