dissenting.
I respectfully dissent. I know of no way to make clearer or more concise the reasons for my dissent than to refile my proposed draft for a principal opinion which draft was rejected by the majority. It follows verbatim.
“This case involves the question of whether a settlement made by three third-party defendants with the original plaintiffs during the gap period between adoption of Missouri Pacific R.R. v. Whitehead and Kales Co., 566 S.W.2d 466 (Mo. banc 1978), and amendment of the settlement statute, § 537.060, RSMo 1986, effective September 28, 1983, can preclude the remaining primary defendant from having the fault of all defendants compared and determined in a subsequent action. The Court of Appeals, Eastern District, held the *897remaining defendant, Norfolk and Western Railway Company, was not entitled to a comparison of the fault of all defendants, but certified the cause to this court because of the general interest in the question. Rule 83.02. We reverse the trial court.”
I
“We adopt the statement of facts set forth in the Court of Appeals opinion.
“The appeal is from a final order of the Circuit Court of the City of St. Louis dismissing Norfolk and Western Railway Company’s (Norfolk) third-party claim for contribution and indemnification against respondents General American Transportation Company (GATX), Dresser Industries, Inc. (Dresser), and Monsanto Company (Monsanto). The facts leading up to this appeal can be briefly summarized. On January 10, 1979, at Sturgeon, Missouri, a tank car being transported by Norfolk left the rails and was punctured by its own running gear. The cargo contained a chemical substance, described as orthochlo-rophenol crude, that leaked from the tank car at the site of derailment. The tank car was removed from the accident site for cleaning and repair.
“Action was brought in Illinois by 47 individual plaintiffs, all employees of Norfolk, who worked at or about the spill site or the repair and clean-up site. They alleged various physical ailments from exposure to the chemical that leaked from the tanker. Plaintiffs originally brought their action against Norfolk, GATX (manufacturer of the tanker), Dresser (manufacturer of a portion of the running gear of the tanker), and Monsanto (manufacturer of the chemical). In March 1982, just prior to trial, plaintiffs entered into a covenant with GATX, Dresser, and Monsanto, releasing their claims against these three defendants in exchange for $7,000,000. The jury returned a verdict against Norfolk and awarded $57,965,000 in favor of all plaintiffs. Norfolk appealed the trial court’s decision. The Illinois Appellate Court held that Madison County, Illinois, was an improper forum pursuant to the doctrine of forum non conveniens and the action was dismissed. See Lowe v. Norfolk and Western Railway, 124 Ill.App.3d 80, 79 Ill.Dec. 238, 463 N.E.2d 792 (1984).
“In 1984, plaintiffs refiled their claim against Norfolk in the Circuit Court of the City of St. Louis. In 1985, Norfolk filed third-party claims against GATX, Dresser, and Monsanto for contribution and indemnity. Norfolk’s petition was dismissed by the trial court and this appeal followed. In 1986, the plaintiffs’ claims were dismissed following an agreement to release Norfolk in exchange for a payment of $15,750,000.
II
“Norfolk contends that the trial court erred in dismissing its action for contribution or indemnification against the third-party defendants.
“In 1983, by House Bills 135 and 194, the legislature amended the Missouri contribution act, now § 537.060, RSMo 1986. Norfolk claims that § 537.060 cannot be applied retrospectively to bar its action against the three prior third-party defendants. The critical amended language reads as follows:
When an agreement by release, covenant not to sue or not to enforce a judgment is given in good faith to one of two or more persons liable in tort for the same injury, such agreement shall not discharge any of the other tortfeasors for the damage unless the terms of the agreement so provide; however, such agreement shall reduce the claim by the stipulated amount of the agreement, or in the amount of consideration paid, whichever is greater. The agreement shall discharge the tortfeasor to whom it is given from all liability for contribution or non-contractual indemnification to any other tortfeasor.
§ 537.060, RSMo 1986.
“In general, statutes are not applied retrospectively. The Missouri Constitution, *898Article 1, § 13, prohibits retrospective application of a statute unless there is clear legislative intent to give it retrospective operation either by express language or by implication, and the statute is procedural only and does not affect any substantive right of the parties. Pipe Fabricators, Inc. v. Dir. of Rev., 654 S.W.2d 74, 77 (Mo. banc 1983); Lincoln Credit Co. v. Peach, 636 S.W.2d 31, 34 (Mo. banc 1982), State ex rel. St. Louis-San Francisco Railway v. Buder, 515 S.W.2d 409, 410 (Mo. banc 1974). Statutes which cannot be applied retrospectively are those which extinguish an existing, vested civil right, create a new obligation, impose a new duty, or attach a new disability in respect to a prior transaction. Buder, 515 S.W.2d at 410. Clark v. Kansas City, St. Louis and Chicago R.R., 118 S.W. 40, 43 (Mo.1909).
“We note in passing that neither the court of appeals nor any brief filed herein made any reference to the case which we believe to be determinative of the issues herein. On June 8,1982, this Court handed down Safeway Stores, Inc. v. City of Raytown, 633 S.W.2d 727 (Mo. banc 1982). Suit was brought for apportionment of liability following judgment against Safeway in a wrongful death action. Safeway brought the suit against three co-defendants, City of Raytown, Fulton Industries, Inc. and Contractor’s Supply Co., none of whom had been made defendants by the plaintiff and none of whom had been im-pleaded by Safeway as third-party defendants. Setting aside the dismissal of the three co-defendants, the Court stated:
The Whitehead & Kales decision transcends § 537.060, RSMo 1978 in alleviation of the harsh effects of the common law no-contribution rule. The decision modified a rule created by the courts. Accord, Skinner v. Reed-Prentice Division Package Machinery Co., 70 Ill.2d 1, 15 Ill.Dec. 829, 374 N.E.2d 437 (1978); Hawkeye Security Ins. Co. v. Lowe Construction Co., 251 Iowa 27, 99 N.W.2d 421 (1959).
The principle of fairness recognized in Whitehead & Kales and the logical relation between it and Rule 52.11 mandate recognition of a separate cause of action. The right to implead a defendant under Rule 52.11(a) (Federal Rule 14) presupposes that the third party plaintiff has a substantive right which could be asserted independently....
Safeway, 633 S.W.2d at 731 (footnote omitted).
“Nothing in § 537.060 indicates that it was to be applied to releases entered into before the effective date of the amendment and Safeway makes it abundantly clear that rights of contribution are substantive rights. In fact, Aherron v. St. John's Mercy Hospital, 713 S.W.2d 498, 502, (Mo. banc 1986), in discussing the statute and distinguishing itself from Whitehead & Kales (and Safeway) states: “[sjince the statute in question facially contemplates its application to releases executed following enactment and since such an effect does not alter substantive rights, the statute is properly applicable in the present circumstances.”
“Whitehead & Kales in our opinion, placed new concrete substantive rights of contribution of parties defendant when it stated:
Concurrent or joint tort feasors not sued by plaintiff, however, may now be brought in by third party practice for a determination in due course of their relative part of the responsibility, if such is the case, for the overall injury and damage to the plaintiff. A jury in the same or separate trial at the discretion of the court, ... should be charged with the responsibility for determining a relative distribution of fault and liability for the damages flowing from a tort, which damages will be, along with a finding of negligence, the predicate to apportionment.8
Whitehead & Kales, 566 S.W.2d at 474.
“Footnote ‘8’ to the above quotation adds “[wjhether or not a separate trial is required of the issues between the third parly plaintiff and the third party defendant necessarily depends upon the particular case.” Id. at 474 n. 8.
*899“Section 537.060, as amended in 1983 clearly intended to exempt and cut off all rights of contribution had by a co-defendant. While the covenants herein are fully binding between each defendant and the plaintiffs, they have no binding effect on the third-party plaintiff herein and its right to claim contribution from the third-party defendants.
“The 1983 amendment to § 537.060 dealt with substantive rights and had no retroactive application to the releases and covenants executed by plaintiff and the three third-party defendants.
Ill
“In the interest of clarity we outline and set forth the following significant dates.
June 15, 1978 — Whitehead & Kales
January 10, 1979 — The Spill in question
March 15, 1982 — Covenants of settlement executed
September 28, 1983 — § 537.060 passed by legislature, became effective
“We would point out that no question of plaintiffs’ right to covenant with any defendant or defendants he chooses is involved in this appeal, the only question here involved being whether a covenanting or releasing plaintiff and a defendant can cut off rights of contribution of a co-defendant who is not a party to the covenant or release following Whitehead & Kales and before passage of the amendment to § 537.060. Pre-Whitehead & Kales, a general release released all tortfeasors. Pre-Whitehead & Kales a plaintiff simply covenanted not to sue certain specified parties defendant in consideration of payment of a specified sum of money which was required to be deducted from any general verdict which might follow. The first thing in the law granting a plaintiff and one or more co-defendants the right to cut off the remaining codefendants' right of contribution following Whitehead and Kales was and is § 537.060, as amended in 1983.
“In this background, it was generally accepted at the time relative or comparative fault of defendants created by Whitehead & Kales rendered any attempted settlement in multi-defendant cases to be extremely dangerous, if not in fact impossible to accomplish during the gap period between Whitehead & Kales and passage of the settlement statute by the legislature in 1983.
“Safeway points out that:
The language in Whitehead & Kales indicating that the right to apportionment can be exercised by way of cross claim or third party practice is in answer to the question there presented; whether the entire matter may be decided in one suit, by one jury. The case, however, does not limit the right to contribution to the procedural vehicles there mentioned. To the contrary, the decision necessarily recognized the existence of a substantive right to contribution before it determined that Rule 52.11 afforded an appropriate method of exercising it.
In Whitehead & Kales this Court held: “A principled right to indemnity should rest on relative responsibility and should be determined by the facts as applied to that issue.”; that if a “third party defendant did certain acts or omissions and was thereby negligent and that the same directly contributed to cause the injuries and damage to the original plaintiff, then the jury should award the third party plaintiff such proportion of the total sum paid by it to plaintiff as corresponds to the degree of fault of the third party defendant. The two concurrent tort-feasors should be treated according to their respective fault or responsibility.” Id. at 472. In recognizing that the “essential thing is the attempt to be fair as between persons subjected to a common legal liability,” this decision abrogated the former common law rule that “there is no right to indemnity or contribution between concurrent or joint tortfeasors in pari delicto, except as provided by statute.” Id. at 469, 472 (citations omitted). Under Whitehead & Ka-les the principle of contribution based *900on relative fault replaced the “primary-secondary” and “active-passive” indemnity distinctions became the latter yielded the illogical result of finding one of two concurrent tortfeasors totally liable although both were to some degree responsible for the injury earned. Id. at 470-74. The present rule in Missouri is what it was prior to misapplication of the no-contribution rule. Id. at 469; Note, Contribution Between Persons Jointly Charged for Negligence—Merriweather v. Nixon, 12 Harv.L.Rev. 176 (1898). The right to contribution is based upon the “principle of fairness” and was historically a remedy afforded in equity, although subsequently enforced at law under a variety of theories such as assumpsit and quasi contract to rectify unjmt enrichment. Whitehead & Kales, 566 S.W.2d at 469. See generally, Note, supra, 12 Harv.L. Rev. at 178; R. Leflar, Contribution and Indemnity Between Tortfeasors, 81 U.Pa. L.Rev. 130 (1932); 18 C.J.S., Contribution § 2, p. 3.
It is true that the decision in Whitehead & Kales recognized that the right to contribution “presupposes actionable negligence.” Id. at 468. This does not mean, however, as respondents suggest, that a joint judgment of liability against two defendants is a necessary prerequisite to an action for contribution. The defendant against whom contribution is sought must be a tortfeasor, originally liable to the plaintiff-injured party. W. Prosser, Law of Torts, § 50, at 309 (4th ed. 1971). As explained in the Restatement of Torts, Second, § 896A(1) “When two or more persons become liable in tort to the same person for the same harm, there is a right of contribution among them, even though judgment has not been recovered against all or any of them.” It is joint liability and not joint judgment which is prerequisite to contribution. Whitehead & Kales, 566 S.W.2d at 469. See, Stephenson v. McClure, 606 S.W.2d 208, 213 (Mo.App.1980); Martinez v. Lankster, 595 S.W.2d 316 (Mo.App.1980).
Safeway, 633 S.W.2d at 729-30 (footnotes omitted) (emphasis added).
“In this case, the $7,000,000 stipulated in settlement by the third-party co-defendants together with the $15,750,000 stipulated in settlement by Norfolk, represents the total liability of all defendants. As we indicated in Safeway, “[i]t is joint liability and not joint judgment which is prerequisite to contribution.” When the dismissals of the three third-party co-defendants have been vacated and set aside, all that remains to be done is to compare and apportion the relative fault of all of the defendants, crediting and setting off the sums already paid by each of the parties.
“Issues regarding liability for contractual indemnity being unnecessary for determination of this appeal, the same may be presented to the trial court on remand.
“The statute having no retroactive application to these causes of action, there is no issue of “good faith” to be determined.
“We would reiterate and join in these additional words from Safeway:
None of the foregoing is intended to indicate a preference for separate actions. The purpose of Rule 52.11 and Rule 14 [Federal Rule] is to avoid two actions which should be tried together to save time and cost of duplicative litigation, to reach the same result from the same or similar evidence, and to avoid any handicap to parties which results from a time difference between judgments. 3 Moore’s Federal Practice § 14.04 (2d ed. 1952).
Safeway, 633 S.W.2d at 731.
“Judgment of the trial court dismissing the three third-party defendants is reversed and the cause remanded for further proceedings consistent with this opinion.”
For the reasons stated in the foregoing rejected draft, I have no choice but to dissent against the slow painful dismemberment of the comparative fault created by Whitehead and Kales and Gustafson v. *901Benda, 661 S.W.2d 11 (Mo. banc 1983),1 and to attempt a last defense of the “principle of fairness” enunciated therein and referred to by Donnelly, J. in his separate dissenting opinion in which I also concur.
. See Lippard v. Houdaille, 715 S.W.2d 491, 500 (Welliver, J. dissenting).