' 'Contribution and Indemnity among Tortfeasors,' Hodges, 26 Tex.L.R. 150, 162. Among cases examined in this article were Wheeler v. Glazer, 137 Tex. 341, 153 S.W.2d 449, 140 A.L.R. 1301; Otis Elevator Co v. Cameron, 205 S.W. 852 (Tex.Civ.App., Dallas, writ ref.), Dallas Ry. and Terminal Co. v. Harmon, 200 S.W.2d 854 (Tex.Civ.App., Dallas, writ ref.), and Texas Power and Light Co. v. Stone, 84 S.W.2d 738 (Tex.Civ.App., Eastland, writ ref.). Development of the law pertaining to the rights and duties of tortfeasors among themselves has been attended with striking want of complete accord except in results.

On Mallory's appeal, the Alabama Court of Appeals held: Where there is a bailment for the mutual benefit of the parties, as for hire, there is imposed on the bailor, in the absence of a special contract or representation, an obligation that the thing or property bailed for use shall be reasonably fit for the purpose or capable of the use known to be intended. 6 C.J. 1117, § 52. It has been held that the manufacturer and seller of an elevator impliedly warrants that the elevator would be suitable and safe for use. Otis Elevator Co. v. Cameron (Tex.Civ.App.) 205 S.W. 852. Therefore, in furnishing the derrick and block under the circumstances of this case, the defendant impliedly warranted that they would be suitable for the purpose for which they were furnished. This warranty was found to have been violated by the defendant, and this finding will not be disturbed.

This collision of policy is for Texas to decide. See Otis Elevator Co. v. Cameron, Tex. Civ.App., 205 S.W. 852. If the right, because of this assumed impediment, did not exist at common law, then the statute, Art. 2212, comes into play and Wheeler v. Glazer, supra, not the impediment, supplies the answer.

The action was sent back for the trial on that issue and is authority for submitting that question in this case at bar to a jury, its verdict being final. Accord: Otis Elevator Co. v. Cameron, Tex. Civ. App. 205 S.W. 852, where the court held Otis, the manufacturer of a defective elevator, "was the original and active perpetrator of the wrong for which R.L. Cameron was held responsible * * * and that the negligence of * * * Cameron * * * was only passive." In VanderVeer v. Tyrrell, 27 A.D.2d 958, 278 N.Y.S.2d 916, cited in the opinion, appears this statement of an operator's (Bayman's) duty:

Restatement of the Law of Torts, Sec. 425, p. 1145; 15-B Tex.Jur. 711-712, 'ELEVATORS', Sec. 10; 21 Tex.Jur.2d 550, 'ELEVATORS AND ESCALATORS', Sec. 9; Otis Elevator Co. v. Cameron, Tex.Civ.App., 205 S.W. 852, err. ref."

(a) The decided cases permit recovery by the purchaser from the manufacturer where the manufacturer's breach of warranty has subjected the purchaser to legal liability by reason of injuries to third persons. Mark v. Cooperage Co., 204 Mo. 242; Mayfield v. Richardson Mach. Co., 208 Mo. App. 206; Wood Preserve Co. v. Gas Elec. Co., 243 S.W. 239; Linen Thread Co. v. Shaw, 9 F.2d 17; Shipbuilding Corp. v. Gutradt, 10 F.2d 769; Dushane v. Benedict, 120 U.S. 630; Busch Latta Co. v. Const. Co., 310 Mo. 419; Boston Rubber Co. v. Kendall, 178 Mass. 232; Mowbray v. Merryweather (1895), 2 Q.B. 640; Vogan v. Oulton, 81 L.T. (N.S.) 435; Otis Elevator Co. v. Cameron (Tex. Civ. App.), 205 S.W. 852; Mallory S.S. Co. v. Druhan (Ala.), 84 So. 874; Alaska S.S. Co. v. Gypsum Co., 71 Wn. 379; John Wanamaker v. Otis Elevator Co., 175 N.Y.S. 78; Lord Taylor, Inc., v. Mfg. Co., 230 N.Y. 132; Dayton Power Co. v. Elec. Mfg. Co., 287 F. 439; London Guarantee Co. v. Elevator Co. (Ind.), 155 N.E. 182; Tyler v. Moody, 111 Ky. 191. (b) The evidence adduced by plaintiff is amply sufficient to bring the case at bar within the application of the above authorities. The loss being the proximate result of the breach of warranty, the purchaser (or one standing in its place) is entitled to recover indemnity therefor, in an action sounding in breach of warranty.

It has been stated that a purchaser of a defective appliance or machine which causes injuries to another for which he is liable may recover indemnity from the manufacturer or vendor. 41 Am.Jur.2d, Indemnity, § 25; First National Bank of Arizona v. Otis Elevator Co., 1966, 2 Ariz. App. 596, 411 P.2d 34; John Wanamaker, New York, Inc. v. Otis Elevator Co., 1920, 228 N.Y. 192, 126 N.E. 718; Otis Elevator Co. v. Cameron, Tex.Civ.App. 1918, 205 S.W. 852; Liberty Mut. Ins. Co. v. J.R. Clark Co., 1953, 239 Minn. 511, 59 N.W.2d 899; Frank R. Jelleff, Inc., to Use of Liberty Mut. Ins. Co. v. Pollak Bros., Inc., U.S.D.C. N.D.Ind. 1957, 171 F. Supp. 467; McDonald v. Blue Jeans Corp., U.S.D.C.S.D.N.Y. 1960, 183 F. Supp. 149, unless the party making payment is barred by the wrongful nature of his conduct, Florida Power Light Co. v. General Safety Equip. Co., Fla.App. 1968, 213 So.2d 486. The so-called active-passive tortfeasor principle is recognized in Florida, Great A. P. Tea Co. v. Federal Detective Agency, Inc., Fla.App. 1963, 157 So.2d 148; Winn-Dixie Stores, Inc. v. Fellows, Fla.App. 1963, 153 So.2d 45; Fincher Motor Sales, Inc. v. Lakin, Fla.App. 1963, 156 So.2d 672; Olin's Rent-A-Car Sys., Inc. v. Royal Continental Hotels, Inc., Fla.App. 1966, 187 So.2d 349. As stated in Florida Power Light Co. v. Hercules Concrete Pile Co., U.S.D.C. S.D. Fla. 1967, 275 F. Supp. 427, 429: "Under this principle one who is considered a `passive'

The Building's duty, which it owed to all who would reasonably be expected to use the elevators, to maintain the elevators in reasonably safe condition cannot be delegated to an independent contractor so as to relieve the Building of responsibility. Restatement of the Law of Torts, Sec. 425, p. 1145; 15-B Tex.Jur. 711-712, 'ELEVATORS', Sec. 10; 21 Tex.Jur.2d 550, 'ELEVATORS AND ESCALATORS', Sec. 9; Otis Elevator Co. v. Cameron, Tex.Civ.App., 205 S.W. 852, err. ref. The fourth point, complaining of the jury finding that the Building had exclusive control of the elevator, as being so contrary to the preponderance of the evidence as to require it to be set aside, is without merit and is overruled.

What duty, express or implied, does an employer owe an independent contractor in reference to apparatus furnished him to be used in carrying out the particular work contracted for? Where there is a bailment for the mutual benefit of the parties, as for hire, there is imposed on the bailor, in the absence of a special contract or representation, an obligation that the thing or property bailed for use shall be reasonably fit for the purpose or capable of the use known to be intended. 6 C. J. 1117, § 52. It has been held that the manufacturer and seller of an elevator impliedly warrants that the elevator would be suitable and safe for use. Otis Elevator Co. v. Cameron (Tex.Civ.App.) 205 S.W. 852. Therefore, in furnishing the derrick and block under the circumstances of this case, the defendant impliedly warranted that they would be suitable for the purpose for which they were furnished. This warranty was found to have been violated by the defendant, and this finding will not be disturbed.