The rules governing contribution between tort-feasors (ante, Sec. Sec. 255, 256) apply, mutatis mutandis, to cases of indemnity. Thus, whether an agent who has committed a tort under the direction of his principal may recover indemnity from the principal depends upon the moral responsibility of the agent. If he knew or ought to have known that his act was wrongful he will not be allowed indemnity.2 But if he acted in good faith and without any intention of violating another's rights, he will be permitted to shift the consequences of the tort to the shoulders of his principal, where as between the two it should justly fall.3 Again, while
N. H. 247; 46 Atl. 26; Andrews v. Murray, 1861, 33 Barb. (N. Y. Sup. Ct.) 354; Galveston, etc., R. Co. v. Nass, 1900, 94 Tex. 255; 59 S. W. 870; Texas, etc., R. Co. v. Corr, 1910, Tex. Civ. App. 130 S. W. 185; Walton, Witten, & Graham v. Miller's Admx., 1909, 109 Va. 210; 63 S. E. 458; 132 Am. St. Rep. 908; Tacoma v. Bon-nell, 1911, 65 Wash. 505; 118 Pac. 642; 36 L. R. A. (N. S.) 582.
1 See article by T. W. Reath, "Contribution between Persons jointly charged for Negligence - Merryweather v. Nixan," 12 Harv. Law Rev. 176.
2 See Nelson v. Cork, 1856, 17 111. 443; Sutton v. Morris, 1898, 102 Ky. 611; 19 Ky. Law Rep. 1654; 44 S. W. 127; Coventry v. Barton, 1819, 17 Johns. (N. Y.) 142; 8 Am. Dec. 376; Culmer v. Wilson, 1896, 13 Utah 129; 44 Pac. 833 ; 57 Am. St. Rep. 713.
3 Adamson v. Jarvis, 1827, 4 Bing. 66, (conversion of goods by plaintiff, an auctioneer, under order of defendant); Betts v. Gibbons, one who has actually authorized the commission of a tort by his agent or servant is obviously not entitled to indemnity, one who has not authorized a wrongful act but is held liable to the persons injured merely because of his relationship to the agent or servant who committed it, will be allowed to seek indemnity.1 It should be added that indemnity is frequently sought where the relation of principal and agent or master and servant does not exist, but where, nevertheless, as between the tort-feasors, one is primarily responsible for the wrong and ought to bear the consequences. The case of injuries resulting from a negligently maintained sidewalk is typical. Both the property owner and the municipality are legally responsible to the person injured, but as between the two the blame lies at the door of the owner. In this and similar cases, if the party who is not actually or primarily at fault is compelled to respond in damages, he may have indemnity from the other.2 So far is this principle carried 1834, 2 Ad. & E. 57, (conversion of goods by agent under order of principal); Moore v. Appleton, 1855, 26 Ala. 633, (plaintiff dispossessed third person under authority of defendant); Gower v. Emory, 1841, 18 Me. 79, (attachment of goods by deputy sheriff); Culmer v. Wilson, 1896, 13 Utah 129; 44 Pac. 833; 57 Am. St. Rep. 713, (trespass by agent or trustee) ; Hoggan v. Cahoon, 1903, 26 Utah 444; 73 Pac. 512; 99 Am. St. Rep. 837, (trespass by agent in seizing goods upon which defendant claimed to have a chattel mortgage).
1 Bradley v. Rosenthal, 1908, 154 Cal. 420; 97 Pac. 875; 129 Am. St. Rep. 171, (negligence of defendant Rosenthal in selecting telephone poles); Bailey v. Bussing, 1859, 28 Conn. 455, (negligence of stage driver); Georgia, etc., R. Co. v. Jossey, 1898, 105 Ga. 271; 31 S. E. 179, (negligence of baggage master in delivering trunk at wrong station); Grand Trunk R. Co. v. Latham, 1874, 63 Me. 177, (misconduct of conductor to passenger); Costa v. Yochim, 1900, 104 La. 170; 28 So. 992, (negligence of driver); Lane v. Fenn, 1909, 65 Misc. R. 336; 120 N. Y. Supp. 237; San Antonio v. Smith, 1900, 94 Tex. 266; 59 S. W. 1109, (tenants of city sewer farm improperly diverting sewage into creek); Kampmann v. Rothwell, 1908, 101 Tex. 535; 109 S. W. 1089; 17 L. R. A. (N. S.) 758, (negligence of contractor in building sidewalk); Gaffner v. Johnson, 1905, 39 Wash. 437; 81 Pac. 859; Glover v. Richardson & Elmer Co., 1911, 64 Wash. 403; 116 Pac. 861.
2 Washington Gas Light Co. v. District of Columbia, 1896, 161 U. S. 316; 16 S. Ct. 564, (municipality obliged to pay damages resulting from defective sidewalk); Schneiders. Augusta, 1903, 118 Ga. 610; 45 S. E. 459, (municipality v. property owner); Gridley v. City of that it is declared that "as to the two negligent parties, if the negligence of one was merely passive, or was such as only to produce the occasion, and the other negligent party was the another, may recover indemnity, although but for his own negligence the injury would not have happened, if at the time it occurred he could not, and the defendant could, have prevented it by ordinary care. Cf. Union Stock Yards Co. v. Chicago, etc., R. Co., 1905, 196 U. S. 217; 25 S. Ct. 226; Wilhelm v. Defiance, 1898, 58 Ohio St. 56; 50 N. E. 18; 40 L. R. A. 294; 65 Am. St. Rep. 745.
Bloomington, 1873, 68 111. 47, (city was compelled to pay damages resulting from defective sidewalk); Canton v. Torrance, 1909, 151 111. App. 129, (municipality v. property owner); McNaughton v. Elkhart, 1882, 85 Ind. 384, (city v. abutting owner); Veazie v. Penobscot R. Co., 1860, 49 Me. 119, (city v. railroad for injuries resulting from obstructing highway); Baltimore, etc., R. Co. v. Howard County, 1909, 111 Md. 176; 73 Atl. 656, aff. on second appeal 1910, 113 Md. 404; 77 Atl. 930, (railroad had rendered highway dangerous by relocating tracks; held liable though county commrs. knew of facts); Gray v. Boston Gas Light Co., 1873, 114 Mass. 149; 19 Am. Rep. 324, (defendant, without permission of plaintiff, attached to plaintiff's chimney a wire which ultimately caused it to fall and injure a horse and wagon; plaintiff was obliged to pay damage and brought action for indemnity); Churchill v. Holt, 1879, 127 Mass. 165; 34 Am. Rep. 355, (occupant of building compelled to pay damages resulting from open hatchway left open by defendant's servant); Boston v. Coon, 1900, 175 Mass. 283; 56 N. E. 287, (municipality v. contractors building on lot abutting on city street); City of Detroit v. Chaffee, 1888, 70 Mich. 80; 37 N. W. 882, (city v. property owner); Minneapolis Mill Co. v. Wheeler, 1883, 31 Minn. 121; 16 N. W. 698, (plaintiff as owner of premises obliged to pay damages resulting from defective bridge which defendant should have kept in repair); Independence v. Missouri, etc., R. Co., 1901, 86 Mo. App. 585, (municipality v. railroad : defective crossing); Oceanic Steam Nav. Co. v. Compania Transatlantica Espanola, 1892, 134 N. Y. 461; 31 N. E. 987; 30 Am. St. Rep. 685, (lessee of pier obliged to pay damages resulting from defective door which sub-lessee should have repaired) ; Phoenix Bridge Co. v. Creem, 1905, 102 App. Div. 354; 92 N. Y. Supp. 855, (contractor v. subcontractor); New York v. Corn, 1909, 133 App. Div. 1; 1 117 N. Y. Supp. 514, (city v. property owner); New York v. Hearst, 1911, 142 App. Div. 343; 126 N. Y. Supp. 917, (city v. campaign comm. for negligent discharge of fireworks); Gregg v. Wilmington, 1911, 155 N. C. 18; 70 S. E. 1070, (city v. contractor using street) ; Grand Forks v. Paulsness, 1909, 19 N. D. 293; 123 N. W. 878, (city v. contractor using street); Ashley v. Lehigh, etc., Coal Co., 1911, 232 Pa. 425; 81 Atl. 442, (city v. abutting owner); Corsicana v. Tobin, 1900, 23 Tex. Civ. App. 492; 57 S. W. 319, (city v. abutting owner); Pullman Co. v. Hoyle, 1909, 52 Tex. Civ. App. 534; 115 S. W. 315, (R. Co. v. Pullman Co., for causing passenger to alight before arrival at station); Seattle v. Puget Sound Imp. Co., 1907, 47 Wash. 22; 91 Pac. 255, (city v. abutting owner). See Nashua Iron & Steel Co. v. Worcester, etc., R. Co., 1882, 62 N. H. 159, where it was held that a plaintiff who by reason of his and the defendant's negligence has been compelled to pay damages to active perpetrator of the wrong, the former may recover over against the latter."1