John W. Jiles filed this action against Quality Homes Company, who manufactured the mobile home Jiles had purchased from Circle South (a mobile home retailer); against Circle South; against Empiregas of Daleville, a propane gas supplier; and against certain fictitious defendants, for damages based on an explosion that occurred in Jiles's mobile home on January 13, 1983. Jiles purchased the mobile home on December 21, 1982, and he alleged that the explosion was caused by the gas supply line not being properly connected to a gas range. Jiles brought this action against the defendants under the theories of (a) breach of express or implied warranty; (b) breach of warranty of merchantability; (c) negligence and wantonness; (d) the Alabama Extended Manufacturer's Liability Doctrine; and (e) fraud (false and fraudulent representations).
Quality Homes filed a motion to bring in a third-party defendant, Sears, Roebuck and Company, the manufacturer of the gas range; and the motion was granted. Quality Homes' third-party complaint alleged that if Quality Homes was liable to Jiles, Sears was liable to Quality Homes because Sears manufactured the gas range involved in the explosion and (1) Sears failed to properly service the gas range as required in its written or implied agreement or warranty; (2) Sears expressly and impliedly warranted fitness and merchantability to Quality Homes and Jiles; (3) Sears was obligated to make indemnification due to its breach of warranty and contract; and (4) Sears negligently or wantonly repaired or serviced the range.
Sears filed a motion to dismiss the third-party complaint, which was granted. The trial court made that dismissal final by a Rule 54(b), Ala.R.Civ.P., order. Quality Homes appeals. We reverse and remand.
Nothing was considered by the trial court in this case except the third-party complaint and the motion to dismiss; clearly, the motion was not treated as a motion for summary judgment, with all parties being given an opportunity to present all pertinent material as provided by the last sentence of Rule 12(b). Therefore, this Court must test the action of the trial court under the standard of review applicable to
Rule 14, Ala.R.Civ.P. ("Third-Party Practice"), is procedural only, see 1 C. Lyons, Alabama Rules of Civil Procedure Annotated 238 (1986); it permits the defendant to cause a summons and complaint to be served upon a person who is not a party to the action but is or may be liable to the defendant for all or part of the plaintiffs claim against the defendant. "[T]hird-party practice cannot undermine the Alabama law which denies contribution among joint tortfeasors. Thus a defendant cannot use Rule 14 as the vehicle for tendering to the plaintiff a defendant which the plaintiff has elected not to sue." 1 C. Lyons, supra, at 238.
If in the third-party complaint Quality Homes, as an alleged tortfeasor, seeks only to obtain contribution from Sears, as a joint tortfeasor, then the trial court did not err in granting the motion to dismiss, for in that case Quality Homes could prove no set of facts in support of the claim which would entitle it to relief.
REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, ALMON and BEATTY, JJ., concur.