Nothing in the repeal of contribution indicates that implied indemnity was also "repealed." The court also disagrees with Rissler McMurry Company's assertion that Convoy Company v. Dana, 359 P.2d 885, 887 (Wyo. 1961), precludes recovery under a theory of implied indemnity. Even so, the court is convinced that the Schneider defendants are not entitled to assert implied indemnity in this case.
The right of contribution between joint tort-feasors is dependent upon statute. Convoy Co. v. Dana, 359 P.2d 885 (Wyo. 1961); Denneler v. Aubel Ditching Service, Inc., 203 Kan. 117, 453 P.2d 88 (1969). Cf. Stein v. Whitehead, 40 A.D.2d 89, 337 N YS.2d 821 (1972), considering Dole v. Dow Chemical Co., 30 N Y2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 (1972) and Kelly v. Long Island Lighting Co., 31 N.Y.2d 25, 334 N.Y.S.2d 851, 286 N.E.2d 241 (1972), which introduced comparative negligence and right of contribution into New York law by court decision for application to joint tort-feasors.
Defendant's second claim as a basis for impleader is subject to facile disposition. The rule is well-established, see Merryweather v. Nixan, 8 Term.Rep. 186 (1799), and was repeated in Convoy Company v. Dana, 359 P.2d 885, at 887 (Wyo.Sup.Ct.1961), where the Court declared, ‘ [I]t is stated that if both parties are joint tort-feasors or are in paridelicto, as where each of the parties contributes to cause an injury, no right of indemnity exists in either party. A like rule applies, in the absence of a statute, to the rule of contribution.
In Chrysler Corporation v. Todorovich, Wyo., 580 P.2d 1123 (1978), this court relied upon some of the rules of causation set forth in Restatement (Second) of Torts. We there indicated that the definition found in Restatement (Second) of Torts, § 431, p. 428 (1965), expressed the essence of this court's conclusion in Convoy Company v. Dana, Wyo., 359 P.2d 885 (1961). As we understand the findings of fact and conclusions of law entered by the trial court in this case, it was using a dual approach in accommodating to the precedents articulated by this court, as well as the rules of causation set forth in the Restatement (Second) of Torts in deciding the case.
The record discloses negligent conduct on the part of each of them which respective conduct in each instance constituted a legal cause of the harm to Todorovich because it was a substantial factor in bringing about the harm. While not expressed in precisely this way, this is the essence of the conclusion of this court in Convoy Company v. Dana, Wyo., 359 P.2d 885, 887 (1961), at which point in its opinion the Court discusses joint tort feasors. See also Pure Gas Chemical Company v. Cook, Wyo., 526 P.2d 986 (1974).
Although the question has never arisen in this state, it is not unique and has often been considered in various states when juries have returned verdicts attempting to apportion damages in face of this rule. Convoy Company v. Dana, Wyo., 359 P.2d 885, 887; Miller v. New York Oil Co., 34 Wyo. 272, 243 P. 118, 121. Natrona Power Co. v. Clark, 31 Wyo. 284, 225 P. 586, 587.