Hendrickson v. Minnesota Power & Light Co.

Decision Date08 July 1960
Docket NumberNo. 37845,37845
Citation104 N.W.2d 843,258 Minn. 368
CourtMinnesota Supreme Court
PartiesEileen HENDRICKSON, trustee for the heirs of Clayton Hendrickson, Respondent, v. MINNESOTA POWER & LIGHT COMPANY, defendant and third-party plaintiff, Appellant, v. Edward GABRIELSON, third-party defendant, Respondent.

Syllabus by the Court

1. Contribution and indemnity are variant remedies used to secure restitution. Although similar in nature and having a common basis in equity, they differ in the relief provided.

2. At common law concurrent tort-feasors had no right to either contribution or indemnity, but the right of contribution exists in Minnesota where one seeking it is not guilty of intentional wrong and there is a common liability.

3. Indemnity among tortfeasors is allowed only in exceptional situations:

(1) Derivative or vicarious liability;

(2) Action at direction of and for another;

(3) Breach of duty to indemnitee;

(4) Failure to discover negligence of another;

(5) Express contract.

4. In case where employee of house mover was electrocuted by high-power line and recovery for death was had against power company which furnished employees to assist house mover by preventing danger from power lines, claim of power company against house mover for indemnity does not fall within any category permitting such recovery and must fail.

Edward T. Fride, Gilbert W. Harries, Nye, Montague, Sullivan & McMillan, Duluth, for appellant.

Manthey, Manthey, O'Leary & Trenti, Virginia, for respondent.


Plaintiff's decedent was killed by contact with high-voltage electric power lines while engaged in moving a house in the scope of his employment by third-party defendant Gabrielson. Prior to the accident, Gabrielson had made arrangements with appellant power company for two employees of the latter to assist in the moving operation by deenergizing the power lines in the path of the house. The house had passed two sets of power lines successfully. The power company's employees waited by these lines while Gabrielson moved the house ahead and around a corner. The house was then moved under a third set of power lines, at which time the accident occurred.

Decedent's dependents recovered workmen's compensation payments from the employer Gabrielson, and then plaintiff brought this suit under the wrongful-death act against the power company, which brought in Gabrielson as a third-party defendant. At the conclusion of plaintiff's case the power company rested without offering any evidence, and Gabrielson moved to dismiss the action against him. This motion was granted; and the case was then submitted to the jury which returned a verdict in favor of plaintiff against the power company. The power company has appealed the dismissal of its claim against Gabrielson. This appeal does not challenge the verdict for plaintiff but raises issues relating only to the right of the power company to recover contribution or indemnity from third-party defendant Gabrielson.

The principles governing contribution and indemnity are similar both in origin and in character. In modern law these principles comprise the subject that is treated under the general title of restitution. The principles of restitution are derived from the old common-law actions of general assumpsit and those which we now call quasi-contract and from the equitable principles of unjust enrichment. 1 The basis of the right to restitution is the belief that men should restore what comes to them by mistake or at another's expense, and that it is unfair to retain a benefit or advantage which should belong to another. 2 This statement is, however, merely a generalization of the more specific principles underlying the subject. Like most such generalizations, this is too vague to be of much assistance in the determination of specific cases. Although both contribution and indemnity rest upon this common concept, they ary significantly different in specific application.

Contribution is the remedy securing the right of one who has discharged more than his fair share of a common liability or burden to recover from another who is also liable the proportionate share which the other should pay or bear. 3 Contribution rests upon principles of equity. 4 Indemnity is the remedy securing the right of a person to recover reimbursement from another for the discharge of a liability which, as between himself and the other, should have been discharged by the other. 5 Indemnity is generally said to rest upon contract, either express or implied. 6 However, there are numerous exceptions and situations in which a contract is implied by law, 7 and contract, therefore, seems to furnish too narrow a basis. In the modern view, principles of equity furnish a more satisfactory basis for indemnity. 8

Contribution and indemnity are variant remedies used when required by judicial ideas of fairness to secure restitution. Although similar in nature and origin and having a common basis in equitable principles, they differ in the kind and measure of relief provided. Contribution requires the parties to share the liability or burden, whereas indemnity requires one party to reimburse the other entirely. 9 Differing thus in their effect, these remedies are properly applicable in different situations. Contribution is appropriate where there is a common liability among the parties, whereas indemnity is appropriate where one party has a primary or greater liability or duty which justly requires him to bear the whole of the burden as between the parties.

At common law joint or concurrent tortfeasors had no right as against each other to secure either contribution 10 or indemnity. 11 However, Minnesota, and a growing minority of other states, have extended the right of contribution to joint tortfeasors by common law in cases where the one seeking contribution was not guilty of intentional wrong. 12 The basis for contribution, nevertheless, remains the fact that there was a common liability, and that one has discharged more than his just share. 13 Accordingly, a person who discharges a liability for a tort cannot recover contribution from a joint tortfeasor who is immune from action with respect to such tort because of some personal defense. 14 The right does not exist in such circumstances because there is no common liability.

Although the modern view, prevailing in this state, does not preclude indemnity among joint tortfeasors, the situations in which it is allowed are exceptional and limited. 15 A joint tortfeasor may generally recover indemnity only in the following situations:

(1) Where the one seeking indemnity has only a derivative or vicarious liability for damage caused by the one sought to be charged. 16

(2) Where the one seeking indemnity has incurred liability by action at the direction, in the interest of, and in reliance upon the one sought to be charged. 17

(3) Where the one seeking indemnity has incurred liability because of a breach of duty owed to him by the one sought to be charged. 18

(4) Where the one seeking indemnity has incurred liability merely because of failure, even though negligent, to discover or prevent the misconduct of the one sought to be charged. 19

(5) Where there is an express contract between the parties containing an explicit undertaking to reimburse for liability of the character involved. 20

Many cases suggest that indemnity is granted where there is a great disparity in the degree of fault of the parties. 21 This may be a satisfactory rationalization of the results. However, this court has not relied upon such rationale, and the Minnesota cases are equally explicable by the more specific principles stated above.

It is argued on behalf of defendant Gabrielson that having paid workmen's compensation benefits to dependents of decedent he is exonerated by the Workmen's Compensation Act from liability to any other person arising out of the injury or death of his employee. 22 However, this court has long held that the Workmen's Compensation Act is intended to control only the rights between employer and employee and does not by its terms prevent contribution or indemnity where appropriate. 23 This also seems to be the general rule. 24 Nevertheless, the act does affect the right to contribution where the concurrent negligence of the employer and a third party causes injury to an employee. Since workmen's compensation statutes provide that the obligations thereunder are the only liability of the employer to the employee, or his representatives, there is no common liability involving the employer and third party in such situations; and, therefore, there is no grounds for allowing contribution. 25

Apparently recognizing this difficulty, the power company here urges its right to indemnity. It argues that there was an express agreement, constituting a contract, by which Gabrielson undertook a duty to use due care, and that this agreement implies an obligation to indemnify for any damages resulting from a breach of this duty. Whether or not an express agreement to use due care necessarily implies an undertaking to indemnify for all damages resulting in whole or in part from a breach of that duty in circumstances such as those involved here, we need not now decide. By granting defendant Gabrielson's motion for dismissal at the close of the case, the court below held that there was no evidence to support a finding of an express contract. 26 We agree with this conclusion. Defendant power company also argues that the Workmen's Compensation Act does not preclude its recover of indemnity and cites numerous cases in which a third-party tortfeasor has been permitted to recover indemnity from an employer for sums paid on account of the injury or death of an employee. As already noted, the Workmen's Compensation Act of this state does not preclude the recovery of indemnity from an employer by a third party. 27 However, the...

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