(concurring). Gloria Martorelli was test driving an automobile, owned by Flint Dodge Company, when it collided with an automobile driven by Frank Tahash. Actions were commenced against Martorelli and Flint Dodge for damages incurred by Tahash and his wife, Anna. Flint Dodge filed a cross-complaint against Martorelli for indemnity. The jury verdicts were for the Tahashes against Flint Dodge and Martorelli and no cause for action on the cross-complaint.
I agree with my colleagues that under established doctrine Flint Dodge, which is vicariously liable1 and was not at fault, is entitled to indemnification as a matter of law.2
I write separately to suggest that on a record and with briefs directed to the question, it would be appropriate to consider whether the common law should continue to recognize an action for indemnity by an owner of an automobile against a person driving it with his permission.
Prosser stated that "the duty to indemnify will be recognized in cases where community opinion would consider that in justice the responsibility should rest upon one rather than the other”.3 A *429straw in the wind regarding community opinion is the verdict of no cause for action on the cross-complaint.
Under existing precedent, a consumer who test drives, a family friend who borrows, and even ah employee who uses an automobile on his employer’s business,4 undertake to hold the owner harmless. This is anachronistic in the context of the almost universal expectation, now that automobile liability insurance is mandatory,5 that there is liability coverage.
The doctrine is especially anomalous when the use of the automobile tends to benefit the owner: an employee on his employer’s business, a customer test driving with the thought of purchasing. It may not be too much to say that today there is an implication of insurance coverage of the driver in such situations that estops an owner (and his insurer) from seeking indemnification.
It does not appear whether Flint Dodge or Martorelli or both were insured for liability.
If Martorelli was insured, then this is an action between insurance companies, obliged under present doctrine to sue each other defensively to offset the cost of such actions.
Automobile liability indemnification judgments that are collected are in the main paid by insurers; loss of recoveries, resulting from elimination of such actions, would be largely offset by relief from being required to respond in such actions.
*430Abolishing the automobile liability indemnity action appears to be in the interest of owners, drivers, insurers and the public at large. Court calendars would be lightened. The costs of litigation and claim adjustment would be eliminated. Except for dealerships and other enterprises which recurringly lease or lend automobiles and do not carry coverage for the drivers, insurance costs would not increase and might even, in admittedly attenuated measure, diminish.
Flint Dodge’s liability arises under the civil liability act, MCLA 257.401; MSA 9.2101.
Prosser on Torts (4th ed), § 51, p 311; 41 Am Jur 2d, Indemnity, § 20, pp 707-708; 42 CJS, Indemnity, § 21, p 598.
Prosser, supra, § 52, p 313.
" * * ' a right to indemnity exists whenever one party is exposed to liability by the action of another who, in law or equity, should make good the loss of the other.” 41 Am Jur 2d, Indemnity, § 19, p 705.
*429“The obligation to indemnify may grow out of an implied contractual relation or out of a liability imposed by law. Thus, where one is compelled to pay money which in justice another ought to pay, or has agreed to pay, the former may recover from the latter the sums so paid, unless the one making the payment is barred by the wrongful nature of his conduct.” 42 CJS, Indemnity, § 20, pp 594-595.
See Steffen, The Employer’s "Indemnity" Action, 25 U Chi L Rev 465 (1958).
MCLA 500.3101; MSA 24.13101.