Plaintiff, Minster Machine Company (hereinafter Minster), brings this appeal seeking to reverse a summary judgment granted by the Wayne County Circuit Court in favor of defendant Diamond Stamping Company (hereinafter Diamond), because of plaintiff’s alleged failure to state a claim upon which relief can be granted. GCR 1963, 117.2(1).
Briefly, the present controversy grew out of the *60 following facts: On January 27, 1973, Roland Yost, a temporary employee of Diamond, was injured on the premises of Diamond while operating a press manufactured by Minster.
As a result of the accident and the serious injuries which he allegedly incurred, Yost initiated suit against Minster, Chrysler Corporation (the manufacturer and designer of the die being used in the press) and United States Fidelity & Guarantee, Inc., Diamond’s Workmen’s Compensation carrier, which allegedly inspected Diamond’s plant.
Yost’s specific averments against Minster included, among others, failure to instruct on proper usage of the press, failure to warn of the dangerous features of the press and failure to install adequate guards on the press.
After answering the complaint, Minster sought to add Diamond as a third-party defendant. The third-party complaint asserted, in essence, that the duties purportedly breached by Minster were in actuality primarily the duties of plaintiffs employer. In accordance with this theory, the complaint stated that in the event Minster should be found liable to Yost, Minster would be entitled to complete indemnification and a judgment against Diamond, based upon Diamond’s active and primary negligence. The trial court was not persuaded by this reasoning and denied the motion.
Subsequently, Minster brought the present separate action against Diamond. The allegations contained therein were virtually identical to those asserted by Minster in its proposed third-party complaint.
Diamond moved for a summary judgment arguing that no theory of indemnification adhered to in Michigan supported Minster’s claim. Minster strenuously opposed this motion and again as *61 serted that liability may be found against Minster on grounds which, as opposed to the active and primary negligence of Diamond, would constitute only passive or secondary negligence. As noted previously, the trial court failed to agree with Minster and granted summary judgment to Diamond.
Before turning to our analysis of the propriety of this judgment, we initially note the standard of review which must be employed in determining the correctness of a GCR 1963, 117.2(1) motion for summary judgment, succinctly stated in
Borman’s, Inc v Lake State Development Co,
"A motion based solely on subsection 1, challenges the legal sufficiency of a plaintiffs claim and is to be considered by an examination of the pleadings alone.
Todd v Biglow,
Coming directly to the concrete problem before us, this Court in
Provencal v Parker,
"Indemnification rests upon the equitable principle of a right to restitution.
Dale v Whiteman,
[
Against this background certain underlying principles emerge, applicable to the instant case, which manifest deep convictions reflected by a solid body of judicial opinion in this state which we are bound to follow. The first of these is the strong policy requirement that the indemnitee be without personal fault for the harm that has occurred. 1 Thus, the indemnitee must be able to show "he did not participate in the commission of the tort; and his liability arises only by operation of law”. 2 The second, and intimately related principle, is that "liability should fall upon the party best situated to adopt preventive measures”. 3 No doubt the insistence on this second principle goes *63 hand in hand with the first. If one party is without personal fault in the resultant harm, logic dictates he will not be the best suited to ensure that preventive measures are adopted; hence, he may recover. However, where both have actively caused the injury, it is impossible for courts to theorize on who was the proper party to adopt proper precautions.
With this body of precedent and principles in mind, we come then to the thorny question before us: whether, where, as here, a product is allegedly negligently designed, the manufacturer of that product, who claims he is at most passively or secondarily negligent, can recover indemnity from the original plaintiff’s employer on the basis of the employer’s alleged active negligence in causing the injury. Minster submits that in light of the language concerning "active” and "passive” negligence found in Dale, supra, at 705, it is irrefutable that we are compelled to conclude that Minster states a cause of action cognizable under a recognized theory of indemnity. But this analysis is faulty.
Concededly, Dale explicitly recognized the active and passive negligence basis of recovery. See also Provencal v Parker, supra. However, we must be assured that plaintiff alleges a factual setting which properly invokes the application of this theory of indemnity.
Minster does not assert passive negligence of the type imposed by operation of law. Clearly, Minster’s claim amounts to the assertion that his negligence, if any, was not the proximate cause of the accident; therefore, he should be entitled to indemnification from Diamond. Evidencing the reasoning we deem persuasive in rejecting a claim for indemnity under these circumstances, is the *64 view taken by the Illinois courts on this same question:
"all of the charges in the complaint of plaintiff against * * * [the manufacturer] are of active negligence. Thus, if plaintiff recovers a judgment against * * * [the manufacturer], it would necessarily be predicated upon active negligence. This being true, it follows inevitably that * * * [the manufacturer] would not be entitled to indemnity as against * * * [the employer].”
Burke v Sky Climber, Inc,
13 Ill App 3d 498, 503;
On appeal to the Illinois Supreme Court, this view was sustained where the Court stated:
"had * * * [the manufacturer’s] position been sustained by the evidence, it would have presented a successful defense in the Burke action and no indemnity action would have been necessary. In effect, the third-party complaint has alleged a defense and has not established the requisite relationship which would permit consideration of the propriety of an indemnity action under the circumstances.”
Burke v Sky Climber, Inc,
57 Ill 2d 542, 546;
These cases were quoted approvingly in
Prosky v National Acme Co,
Thus, in line with this reasoning, the only way that Minster could be held liable in the action by Yost is for his active negligence. He then fails to meet one of the essential requisites of indemnity: being without personal fault. Moreover, his allegations against Diamond are more akin to an action for contribution between joint tortfeasors, which *65 is, of course, precluded by the exclusive remedy provision of the Workmen’s Compensation Act, MCLA 418.131; MSA 17.237 (131), Hasted v Consumers Power Co, supra, Dale, supra. Hence, this action cannot be sustained.
Affirmed. Costs to defendant.