                                    No. 13861
                  IN THE SUPREME COURT OF THE STATE OF MONTANA
                                        1979


RUTH ROGERS,
                                Plaintiff and Respondent,
     -vs-
WESTERN AIRLINE, a Corporation,
                   Defendant and Appellant,
      and
WESTERN AIRLINE a Corporation,
                   Third-Party Plaintiff,
      -vs-
CITY OF GREAT FALLS, MONTANA, a
Municipal Corporation,
                   Third-Party Defendant.


Appeal from:           District Court ofthe Eighth Judicial District,
                       Honorable Joel G. Roth, Judge presiding.
Counsel of Record:
    For Appellant:
             Church, Harris, Johnson & Williams, Great Falls,
              Montana
             Cresap S. McCracken argued, Great Falls, Montana
    For Respondent:
             Smith, Emmons, Baillie & Walsh, Great Falls, Montana
             Robert Emmons argued, Great Falls, Montana
             Marra, Wenz, Iwen and Johnson, Great Falls, Montana

                                          Submitted:    June 15, 1979
                                           Decided :   GP.,J
         .:                                                    1979
Filed:   '
          .  7-
             *
                  ,'
                  .    .   -3
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.

     In the above-captioned causes, Northwest Airlines and
Western Airlines each appeal from the separate summary
judgments entered against them in favor of the City of Great
Falls in the District Court, Eighth Judicial District, Cascade
County.     Since the cases involve common legal questions,
they were consolidated on appeal to this Court.
     In the Western Airlines case, Ruth M. Rogers, a Los
Angeles resident, had traveled to Montana for a Christmas
vacation visit with her family at the town of Lothair. On
                                             airport
January 4, 1972, she came to the Great Falls/to board a
Western Airlines flight for her return to Los Angeles.
Generally wintry conditions had prevailed for several days,
leaving the outside terminal area at the airport in a
snowy and icy condition.    To board her airplane, Mrs. Rogers
had to walk from the terminal building at the airport to the
waiting aircraft.    As she reached the airplane and attempted
to step on the stairway leading into the craft, her foot,
still on the airport ramp or apron, slipped, causing her to
lurch and strike her right foot on some part of the airplane
stairway.    She caught herself before falling completely.    She
then went into the airplane and flew therein to Los Angeles.
Later, it appears that her right foot was amputated above
her ankle.    She filed suit in the Cascade County District
Court against Western Airlines and the City of Great Falls
based on her claim that the slip and resulting impact to her
right foot caused the ultimate injuries.
        Western filed its answer including several affirmative
defenses as to contributory negligence and assumption of
risk.     Its answer also included a third-party complaint
against the City of Great Falls, Montana, claiming the right
to indemnity from the City for all costs, attorney fees and
expenses incurred in connection with the Rogers claim.
Great Falls filed its answer to the third-party complaint,
setting out several defenses to any liability for indemnity
to Western.
     Thereafter, Great Falls moved for summary judgment in
its favor against Western.
     On May 2, 1977, District Judge Joel G. Roth granted
summary judgment in favor of Great Falls and against Western
on the third-party claim, upon the basis that former section
1-502, R.C.M.    1947, controlled.   We shall discuss the statute
hereunder.
        In cause No. 14027, it appears that AnneBuscher had
returned to her Great Falls home on a Northwest Airlines
airplane on March 25, 1972.       She debarked from the plane at
the Great Falls airport, and on walking to the terminal,
slipped and fell on the apron or ramp where there were
conditions of snow and ice.       She and her husband Walter J.
Buscher filed a complaint against Northwest Airlines and the
City of Great Falls, she alleging permanent injuries and
damages from her fall, and the husband alleging loss of
consortium.
     Northwest filed its answer against plaintiffs' claim;
the City of Great Falls filed its answer and included a
cross-claim against Northwest Airlines for indemnity.
Northwest answered the cross-claim of the City of Great
Falls and in return, cross-claimed against the City of Great
Falls for indemnity.     Thereafter, the City of Great ~ a l l s
                            -3-
moved for summary judgment against the plaintiffs1 claim.
Judge Truman G. Bradford on January 20, 1977, entered summary
judgment in favor of the City of Great Falls and against the
plaintiffs Anne Buscher and Walter J. Buscher.     On August 26,
1977, the City of Great Falls further moved for summary judgment
against Northwest Airlines on its cross-claim for indemnity.
On September 21, 1977, Judge Bradford granted summary judgment

in favor of the City of Great Falls and against Northwest
Airlines on its cross-claim.   Again, the District Court
decided that former section 1-502, R.C.M.   1947, controlled.

     Subsequent to the entry of summary judgment in favor of
the City of Great Falls, Northwest settled and compromised the
Buscher claim against it for the sum of $25,000.

     It is from the summary judgments against the airlines
that each respectively appeals in this case.
     What we say hereafter applies equally to each airline,
unless the airline is specifically designated.
     Great Falls International Airport, including its terminal
and airport facilities, is operated by the City of Great
Falls.   At each pertinent time there was in effect between
the City and each airline an agreement relating to the use

of the airport facilities, of which the following are the
relevant parts for these cases:
    "This Agreement is made, effective January
    1, 1971, between the City of Great Falls,
    Montana (City), acting through its duly
    appointed and acting Great Falls Airport
    Commission (Commission), and [airline]
    with reference to the Great Falls International
    Airport (Airport), described on Exhibit A
    attached hereto.
     "SUBJECT MATTER. (A) - -- Airport. The
                            Use of
     City licenses [airline] (i) - -
                                 to use, in common
     with others authorized - - - -
                            so to do, allrunways,
     taxiways - aprons which are or may hereafter
              and
     be provided at the Airport, and (ii) to use
     all-other facilities, improvements, equipment
     and services which are or may hereafter be
     provided at the Airport, except those under
     lease to another..  .."
     " (C) Public Space in Administration
     Building. The City licenses [airline],
     its employees and invitees, to use, in
     common with others and solely in connection
     with [airline's] air transportation business,
     all public space and facilities in and adjacent
     to the Administration Building, as designated on
     Exhibit B attached hereto. Such space and
     facilities will be adequate for reasonably
     uncongested and unobstructed use by [airline's]
     employees and invitees.


     "(E) Right of Access. The City will permit full
     and unrestricted access by [airline], its employees
     and invitees, without charge, to and from the
     Airport and the premises and facilities referred
     to in Paragraphs 1 (A), 1 (B), 1(C), 1 ( G ) and 1 (F)
     (including direct access between the Administration
     Building and [airline's] aircraft parked upon
     the adjacent apron) for all purposes contemplated
     by this agreement.


                      -
     "4. MAINTENANCE AND OPERATION OF AIRPORT. (A)
     The ~ i - . t ~ ~ o maintainandloperate the
                              ~ e r        ~
     Airport (including all buildings and facilities
     thereon) for the safe convenient and proper use
     thereof by [airline], and in accordance with all
     rules and regulations of any competent government
     authority.


     "12. INDEMNITY. [Airline] will indemnify and
     hold the City harmless from any loss, liability
     or expense for injury to or death of any person
     or damage to or destruction of any property
     caused by [airline's] negligent use or occupancy
     of the Airport, except - -
                            a loss, liability or
     expense caused b~ the negligence of - city,
                                      - the
     its agents or employees. The City will give
     [airline], and [airline] will have the right to
     compromise and defend same to the extent of its
     own interest." (Emphasis added.)
     The airlines raised the following contentions:
     1.   The indemnity provision of the airport agreement,
which runs to the City of Great Falls, creates an implied
right of indemnity in favor of the airlines against Great
Falls.
     2.   The sovereign immunity provisions of former section
1-502, R.C.M.   1947, do not operate against an implied right
of indemnity.
     3.   The subsequent repeal of section 1-502, R.C.M.
1947, removes any claim of right of sovereign immunity in
the City of Great Falls from claims of indemnity.
      These cases come hard on the heels of our opinion in
 cause no. 14676, Consolidated Freightways Corporation of
 Delaware v. June Osier and Margaret Collins, decided October
 12, 1979, 36 St.Rep. 1810.      In that case, we held that in
 Montana there is no substantive right of contribution between
 joint tortfeasors except in comparative negligence cases,

 and no substantive right to indemnity, except for those
 cases exemplified by Crosby v. Billings Deaconess Hospital
 (1967), 149 Mont. 314, 426 P.2d 217, and Great Northern
 Railway Company v. United States (D. Mont., 1960), 187 F.Supp.
 690, where the alleged tortfeasors are not in pari delicto.
      Both of the cases involved here were filed before the
 comparative negligence statute, section 27-1-702 MCA, came
 into effect.   Under Dunham v. Southside National Bank of
Missoula (1976), 169 Mont. 466, 548 P.2d 1383, the statute
does not have a retroactive effect.
      The first paragraph of section 1-502, R.C.M. 1947,
which figured so prominently in the decisions of the District
Courts to grant summary judgments, provides for the acquisition
 and operation of airports by municipal corporations as "public
 and governmental functions."     The second paragraph of that

 statute, on the dates of these incidents and injuries, provided
t h a t no action or suit sounding in tort could be brought
 against the state or a municipal corporation arising out of
 the operation and maintenance of airport facilities.
      As can be seen from the issues framed by the airlines,
 it is their theory that the agreements between the city and
 the airlines gave rise to an implied, not express, contract
 of indemnity for any injuries sustained by airline passengers
 that could be ascribed to the failure of the City to maintain
 the airport "for the safe,convenient and proper use thereof."
 The airlines further contend that the implied right to indemnity
                           -6-
is contractual, and is not barred by the immunity statute,
section 1-502, R.C.M. 1947, which is limited to actions
"sounding in tort."
     It is not necessary for us to examine in detail these
contentions of the parties.       We find and hold that the District
Courts in each case reached the correct result, whether or
not they properly construed the effect of the immunity statute.
     It is the intrinsic nature of the legal right to in-
demnity that brings us to this result.      In Consolidated
Freiqhtways v Osier and Collins, supra, we stated that
             .
indemnity "shifts the entire loss from one party compelled
                                                  --
to bear it to the shoulders of another who should bear it
instead."     (Emphasis added.)   A party claiming a right to
indemnity must be able to show that its liability to a third
party arises only because of the relationship between the
first party indemnitee and the second party indemnitor,
Crosby v. Billings Deaconess Hospital (1967), 149 Mont. 314,
426 P.2d 217, and not due to any negligence on the part of
the first party claiming indemnity.      See Fletcher v. City of
Helena (1973), 163 Mont. 337, 517 P.2d 365.      The airlines
necessarily fail this test in these cases.
     To demonstrate this result fully, we must refer to the
original complaints against airlines in each case.      In Rogers
v. Western Airlines, the plaintiff claims that the airline
was negligent in "carelessly [maintaining] its airport premises
and [failing] to warn plaintiff of the dangerous and defective
condition."    In Buscher v. Northwest Airlines, it is averred
that "Plaintiff slipped on the hazardous surface as it then
existed due to the negligence, fault and want of due care"
of the airline.    It is plain that in each case, the plaintiffs
can be successful against airlines only if plaintiffs establish
                            -7-
active negligence proximately causing the respective plaintiffs'
injuries.       If such active negligence is established against
the airlines, then airlines have no right to claim indemnity
against another claimed joint tortfeasor such as the City.
On the other hand, if plaintiffs fail to establish such
negligence of airlines as a proximate cause, then airlines
have no liability to plaintiffs and no claim for indemnity
arises against the City.      In either case, the result is the
same:   no indemnity liability to the airlines on the part
of the City.      Judge William J. Jameson, United States District
Judge, was particularly cognizant of this no-win situation
in Panasuk v. Seaton (D. Mont. 1968), 277 F.Supp. 979, 985,
where he noted:
            .
     ". . The plaintiff in this action in order
     to recover from the defendants must of course
     prove that the defendants were negligent and
     that their negligence was a proximate cause of
     plaintiff's injury. If this is not established,
     there is no liability, and no question of possible
     indemnity could arise. It is my conclusion that
     this is not a case where the principles of indemnity
     are applicable." Panasuk v. Seaton (19681, 277
     F.Supp. 979, 985.
     Of special significance in considering what might result
in each case here where both the city and the airline are
defendants is the disparity of the duty of care that exists
between plaintiffs and the airlines, in contrast to the duty
that exists between the plaintiffs and the City.      Because
the airlines are air common carriers, they owe a high degree
of care (some courts say the highest degree of care) to the
safe passage of their passengers.      This standard of care
extends to passengers embarking and debarking and while they
are passing back and forth to and from the terminal. 2A
       389
C.J.S./Aeronautics and Aerospace, S255. The duty of the City
to such passengers is expressed as the exercise of ordinary

care under the circumstances to an invitee.      See, Tigh v.
College Park Realty Co. (1967), 149 Mont. 358, 365, 427 P.2d
    57.   Indeed, it may well be that the City has no liability
    for accumulations of snow and ice, see Luebeck v. Safeway
    Stores, Inc., (1968), 152 Mont. 88, 93, 446 P.2d 921.
          It cannot be said that the airport agreements between
    the City and the respective airlines operated to shift their
    burden of high degree of care from the airlines to the City.
    This would be carrying the doctrine of implied contractual
    indemnity beyond the perimeters of any cases we have found.
          Because of our view of the cases, and their proper
    result, it is not necessary to discuss the other contentions
    of the parties.    The summary judgment in each case is affirmed.


                                                Justice


   We Concur:


    ..............................
           ,Chief Justice
             j




   Mr. Chief Justice Frank I. Haswell, specially concurring.
    I concur in the result reached by the majority but not all
that is said therein.
