DAUGHERTY, District Judge.
Sears as Third-Party Plaintiff alleges alternative causes of action against Westinghouse, the Third-Party Defendant in the Third-Party Complaint. Westinghouse has moved to Dismiss the Third-Party Complaint. In the first cause of action, apparently under a theory of indemnity, Sears states that any injury to Plaintiff was caused by the sole negligence of Westinghouse, and if Plaintiff recovers a judgment from Sears because of such negligence, then Westinghouse is liable to Sears. The second cause of action is based on Westinghouse's alleged breach of its contract of maintenance which it had with Sears at the time of the accident.
Westinghouse takes the position in its Motion to Dismiss that Sears has failed to state a claim against it. It is axiomatic that the Court must take Sears' allegations against Westinghouse as true in the disposition of the Motion to Dismiss. See Tomko v. City Bank Farmers Trust Co., 3 F.R.D. 31 (D.C.N. Y.1943), a case very similar to the instant one.
The rule regarding indemnity has been most recently stated in Porter v. Norton-Stuart Pontiac-Cadillac of Enid, 405 P.2d 109 (Okl.1965), where the court quoted from 27 Am.Jur. Indemnity § 18 (repeated in substance in 41 Am.Jur.2d Indemnity § 20, p. 707-708):
This rule has been long recognized by the Tenth Circuit. Staples v. Central Surety & Ins. Corporation, 62 F.2d 650 (10 Cir. 1932). It was stated:
Thus, it is clear that Sears has a properly stated claim for indemnity under its first cause of action against Westinghouse.
As to the second cause of action, it appears to the Court that Sears has properly stated a claim for breach of contract. Westinghouse argues that Sears has no proof of a breach of contract by reason of any negligence of Westinghouse. This is immaterial. The function of a motion to dismiss is to test the law of a claim, not the facts which support it. The facts will be tested at trial.
Westinghouse further claims that as Sears has not incurred a judgment, it has suffered no damages and thus has no claim against Westinghouse. This contention ignores the express language of the impleader rule, Rule 14(a), F.R.Civ.P., 28 U.S.C.A.:
It is not necessary that a third-party plaintiff wait until judgment be rendered against him in order to implead a third-party defendant. Chamberlain v. McCleary, 217 F.Supp. 591 (D.C.Tenn. 1963); Huggins v. Graves, 210 F.Supp. 98 (D.C.Tenn.1962); La Ferry v. Ajax Truck Rentals, 161 F.Supp. 707 (D.C. Tenn.1958). The contingent right, if any, of a third-party plaintiff for recovery against a third-party defendant arises at the same time plaintiff's right of recovery arises, and the method of enforcing that right is procedural. La Ferry v. Ajax Truck Rentals, supra. In addition, the Court has power to order separate trials for the protection of Westinghouse should circumstances warrant. Rule 42(b), F.R.Civ.P., 28 U.S.C. A.
It follows that Third-Party Defendant's Motion to Dismiss Third-Party Plaintiff's Complaint is not well taken and the same is hereby denied.