*1 vоluntary logically be no and of this can rule and underlying there rationale waiver. intelligent may People Hobson, found in 479, 384 N.Y.2d N.Y.S.2d 348 N.E.2d we find that 4. Nor do the state (1976). Our disposition of this case by made defendant were volun ments adoption per makes of such a se exclu- teered, thus not the of a custo and sionary rule unnecessary, we but direct at- interrogation. It is clear from the rec dial to it so that we may tention underscore our instigated that the conversations were ord disapproval the questioning of an ac- in the first police, ostensibly instance in the absence of his cused retained counsel. bail we obtain information. While need is Defendant $400 allowed attorneys fees. the issue because of reach our determi that statements obtained are nation herein, For the reasons stated the order inadmissible, we note otherwise that Rule district court affirmed. 6.02, Procedure, subd. Rules of Criminal arguably provide independent an ba could given exclusion of the statements
sis
to Culton.3 we our
5. While rest decision on already expressed, considerations our
opinion buttressed that fact no law attempt any was made enforcement TOLBERT, Respondent, Norman insure that defendant’s counsel officer interrogation was notified af INDUSTRIES, INC., GERBER defendant This, opportunity present. to be forded third-party plaintiff, Appellant, spite police of the fact in that defendant had been advised aware expressed no We our make statement. dis VOLDCO, INC., third-par- defendant approval interrogation of an accused ty plaintiff, Respondent, already in the absence of retained counsel Renfrew, 276,280,159 in State (1968),
N.W.2d in we stated: COMPANY, third-par- SCHULER GRAIN “Even where defendant voluntarily ty defendant, Respondent. intelligently waives his constitutional No. 45290. strongly rights, disapprove we of in-cus- interrogations if tody repre- defendant Supreme Court Minnesota. by counsel and counsel has not sented had April to be opportunity present ques- an at the tioning.” disapproval
We today, reiterate strongest urges terms. Defendant us adopt holding a rule no that matter what circumstances, the statements of an ac- counsеl, has retained
cused who made in the counsel, per are se
absence inadmissible. complete persuasive explication
A most 6.02, provides prere- information, 3. Rule subd. which for a rived from such shall not be used investigation background lease an accused’s against the defendant at trial.” This is an ex- in order to determine conditions release ample of the manner which our Rules of “ * * * bail, part: Any provides infor- Criminal Procedure embrace the constitutional mation obtained the defendant in re- guarantees as enunciated in Miranda v. Arizo- sponse inquiry during the course of the See, na, also, supra. 5.01(b). Rule [prerelease] investigation any evidence de-
each tortfeasor. They attributed 100 per
cent of the
to Gerber and Voldco
jointly and did not apportion percentages
сourt,
them. The trial
relying
upon our recent
decisions
Hillman v.
*3
Ellingson,
The issue is one which prompts us to re-evaluate well-established common- light law rules in of recently adopted princi- ples of comparative negligence. Specifical- ly, question the is whether a negligent in- staller of defective equipment is entitled to 100-percent indemnity the from negligent Field, Arvesen, Donoho, Lundeen & Hoff manufacturer because the negligence of the Arvesen, Fergus Falls, Norman D. for and “passive” former was or “secondary,” or appellant. whether the tortfeasors should be re- Pemberton, Rufer, Hefte, Schulze & Sor- sponsible the loss in accordance with Hefte, Fergus Falls, C. lie and Richard Jar- respective degrees their of culpability. dine, O’Brien, Paul, Logan & St. Tol- 1968, Schuler, In a corporation operating bert. grain-and-seed elevator, contracted with Robertson, & Breckenridge, Clemmensen Voldco, corporation engaged in the con- Klimek, Minneapolis, Dosland, Bey, Ochs & grain struction of elevators and the installa- Dosland, Nordhaugen Mickelberg & and J. tion of grain-handling equipment, design Dosland, Moorhead, for Voldco. R. loading and install a leg trackside permit gravity loading grain hopper cars on а Gospodar & Anthony Korbel C. Gos- siding railroad immediately adjacent to one podar, Breckenridge, for Schuler. plants. of Schuler’s OTIS, PETERSON, Heard before Schuler outlined its requirements, JJ.; SCOTT, reheard, considered, and decid- Voldco determined what equipment was ed court en the banc. needed, a supplier, selected and obtained the equipment. and installed
OTIS, Justice. gave Gerber Voldco the basic information brought by is an action This Norman concerning type system required, and against Industries, Tolbert Gerber Inc. Gerber determined specific what compo- manufacturer, (Gerber), Voldco, nents be would needed. prepared Gerber (Voldco), Inc. installer defective showing sketch the height the leg equipment plaintiff’s which caused injury. length spout transfer necessary Company (Schuler), Schuler Grain Tolbert’s to reach the open-top hatches of hopper employer, third-party was made a defend addition, cars. In it determined the angles jury ant. The found that Gerber and Vold- of an A-valve and a metal elbow. Gerber negligent co the negligence were and that all shipped component then parts, separate- each was direct cause of Tolbert’s unassembled, ly and to Voldco and received $60,572. injury and awarded Tolbert Pur payment. comparative suant to our stat ute, 604.01, was Minn.St. instructed The installation consisted of a hollow percеntage attribute tube feet high, some 30 mounted vertically The turnplate designed cars turnhead. was which railroad the track on alongside tube, which in a level mounted horizontal valve to Inside be loaded. it, of the elbow above upright, to hold it base by bracing supported was to which of the A-valve and the had to conveyor angles belt elbow power-driven awas for a level grain raise from installation. If the attached to coincide cups turnplate at not installed in a equipment posi- to other level of the column bottom tion, permitted fed to the hole in transfer Grain was the column. top of turnhead, slip lug off the spout column at bottom belt allowing the entire transfer spout structure. the Schuler storage bins assembly to fall free from point sleeve its grain cups column top .At the ground 30 feet above suspension level. carry which was to into an A-valve emptied sketch, hopper Gerber, preparing toward the car at the man- out grain ufacturer, then determined that the grain angle proper horizontal. angle below *4 degrees. mistake, which A-valve to an elbow was by gravity By of the flowed department descending shipping ver- 47-degree direction to the its sent changed its a result, end the elbow instead. As a the angle turnplate to lower of Bolted the tical. because, turnhead, degrees below so-called was tilted the horizontal metal awas edge the in the center of outer toward the car. hopper motion at its a circular within elbow, Voldco, installer, spe- it was de- the had not ordered to the bolted upperplate component parts Be- but rather had or- degrees in rotation. cific turn 360 to signed turnhead, complete system, leaving a to Gerber turnplate, the dered the circular low as parts sent to what were needed. pipe, a cast-metal the decision consisted of which installing has been in the business angle at an between of downward Voldco grain the as vertical a metal this since or systems and the into the horizontal “quite installed a few” them. It approximately 12 feet had of spout transfеr just equipment by articulating proceeded install sent having segments length, detecting without its potentially to the trans- point of attachment Gerber its below spout propensities. dangerous to the transfer spout. Attached fer extended sleeve which could be a metal was 8,1972, January top Tolbert was on On feet, spout produce a total another for extending the hopper spout car transfer a 24 feet. the turnhead about length sleeve to the west the car its end of by a crank- could be retracted sleeve This loading leg on at base of centered pulley with a ratchet cable and operated In this process, track. an east-west a retract- permit extension from release spout the head of the transfer disen- hole in the crank. operation without position ed suspension point from its on gaged metal, ground, level turnhead and fell lug was its roof of the hopper car The plaintiff top level. off sweeping 15 feet above track being some car, him running causing injuries. roof severe hopper center of the Down three-segment chan- open was a lengthwise safety were no devices on There and its spout transfer into which the nel transfer-spout suspension to prevent three placed were be to fill extension in the falling disengagement. event bins, segment open of the each separate with produced system had never Gerber serving having sepa- one bin channel device, safety Voldco had never any such chan- segment which covered the door rate devices, safety one with and Schu- installed was closed. The car segment when nel had never seen such device or ordered ler and, length spotted 40 feet in when about one. If a installation of safety device loading-leg loading, was centered installed, have the un- it would had grain. which loaded structure making permanent effect wanted portable. was to be segment spout of the intended top transfer designed to move the transfer hooking system turnhead by to the was attached as differ- on the from turnhead to turnhead spout lug spout to a cast-metal hole (Italics were loaded into railroad commodities character involved.” sup- ent Gerber, Yoldco, had no plied.) and Schuler cars. any occurrences of uninten-
knowledge of
The instant case falls within Rule 4
although similar
disengagements,
tional
Hendrickson.
In
situations
covered
grain
been installed in
ele-
had
equipment
2,1,
Rules
the party who seeks
country.
throughout
vators
indemnity has been held liable even though
at
personally
fault.
In cases under
v. Minnesota Power
Hendrickson
Rule
party, seeking
372,104
N.W.2d
Light
&
indemnity
imposed upon
is
him for the con
(1960), we reviewed our decisions
duct of another.2 Indemnity in
such case
concerning indemnity
joint
tort-
supported by
princiрle
fundamental
following
adopted the
rules:
feasors1 and
guilty
one who is
of injurious
miscon
“ * * *
may gen-
A
tortfeasor
is himself liable
duct
therefor.3 In cases
indemnity only in the fol-
erally recover
2, indemnity
granted
Rule
under
to a
lowing situations:
justifiably
who
party
upon represen
relied
seeking
the one
“(1) Where
made
tations
another and thus is with
or vicarious
only a derivative
has
fault,
personal
out
but whose actions are
sought to
caused
the one
damage
nevertheless tortious.4 In cases under Rule
charged.
3, the party seeking indemnity
again
seeking
one
“(2)
Where
fault,5
personal
exposed
without
but is
*5
liability by action at the
has incurred
liability because of the failure of another to
of,
direction,
the interest
and in re-
in
a
perform duty which he
legally
was
or
sought to
charged.
the one
be
upon
liance
contractually obligated
perform.
to
Rule 5
seeking indemnity
one
“(3) Where
deals with contractual
indemnity and is
a
liability because of breach
distinguishable
1, 2,
has incurred
thus
from Rules
and 3
by
duty
sought
to him the one
Rule 4.
of
owed
and from
charged.
be
Cases which fall under Rule 4 are of a
indemnity
“(4)
seeking
the one
Where
very
type
different
from the others. Aside
of
liability merely because
incurred
has
from cases of contractual
indemnity, the
failure,
though negligent,
to dis-
even
parties
rules concern
seeking
other
indemni-
prevent
misconduct
or
cover
personal fault,
who
without
ty
are
but who
charged.
sоught to be
one
4,
nevertheless are liable in tort. Rule how-
ever,
express
is an
“(5)
parties
Where there
contract
concerns
who are themselves
parties containing
explic-
an
culpably negligent
but
who nevertheless
undertaking
liability
to reimburse for
responsibility
seek to avoid
it
for the injury
“joint
it
tortfeasors”
party
1. As we use the term
“voluntarily
innocently
as one who
but
liability
cases where there is
“all
includes
good
and in
faith
at
[does]
the direction of
jointly
tort,
the acts
those
for
whether
person an
ap-
another
act which on its face
concerted,
concurrent,
merely
or
liable were
proper,
pears
but
lawful and
which is in fact
Leflar,
point of
time.”
Con-
even successive
* *
Eckern,
See,
Henderson
tortious
Tortfeasors,
Indemnity Between
tribution and
410,
(1911); Guirney
715
115 Minn.
132 N.W.
130,
131 note 9.
81
Pa.L.Rev.
U.
Paul, Minneapolis
Co.,
Ry.
v. St.
& Manitoba
43
496,
(1890).
Restatement,
96,
Minn.
judgment
unreasonably
would
extend that decision to
for a new trial on the limited
remanded
from the arsenal of a
equi-
remove
court of
apportionment
issue
to do
ty seeking
justice
economic and social
with the
Voldco
accordance
Gerber
among tortfeasors the flexibility inherent
adopt.
we here
rule
appropriate
in an
use of common-law in-
Indemnity
demnity.
only
weapon
one
remanded.
Reversed
among many. Standing alone
gives
it
appearance
inflexibility
it
because
is all-
KELLY,
(dissenting).
Justice
However,
or-nothing.
as one many equi-
opinion
from the
dissent
respectfully
I
remedies,
legal
it
table
adds to the
negli-
to the issue of
In addition
the court.
flexibility
judicial
of our
system.
Indemni-
jury had submitted to it issues
gence,
ty
culprit
is not the real
is made out to
implied war-
liability and
involving strict
Instead, it is
be.
our adherence to archaic
purpose.
jury
for the
ranty of fitness
permit
law that do not
rules of
the use of
equipment
involved here
found
where
fundamental
fairness
and unreasona-
condition
was in a defective
require
doing away
it.
with in-
it left the
to the user when
bly dangerous
we would
demnity,
equitable
surrender the
and Voldco and that
of both Gerber
hands
of the court
рowers
virtually
all cases
condition was the cause of
the defective
upon the
and thrust
additional and
that there
injuries.
It also found
Tolbert’s
task in civil
complex
litigation
task of
—the
*7
implied warranty
of
both
was a breach
considering social
principles
and economic
these breaches were a
and that
allocating
fairly
defendants
losses
and efficiently.
Thus,
injury
to Tolbert.
cause of
Ironically,
direct
the court would effect such a
liability
that the
of the defend-
appears
at a time when increasing
it
surrender
num-
negligence,
only
was based not
legal
proposing
ants here
bers of
thinkers are
limita-
liability and breach of
jury
on strict
tions on the functions of the civil
but also
abolition.1
warranty.
even its
implied
Co.,
Light
adopted
Minnesota Power &
258
Wisconsin have
sim-
drickson v.
York and
11. New
Co.,
368,
(1960) (in part);
Dow
Dole v.
Chemical
30
843
ilar
rules.
N.W.2d
104
Minn.
382,
143,
N.Y.S.2d
369 justified outset, agree only that there is finding I would At on the in the court’s part attractiveness of Voldeo and its facial a certain several liability plaintiff, to negligent that tortfeasors it premise, does not simple justify deni- culpa- Gerber, according to thеir relative al of pay manufac- should rule, component of the premise parts. such a turer general As a bility. record that while justice majority proposed reveals Gerber equity provides to deliver an However, promised elbow with there remains a a 35-de- cases. tort cases, angle, the elbow gree actually provided it including five class narrow 47-degree angle. had This failure to de- in Hendrickson Minneso- categories listed part the correct Co., 372, liver was a direct 368, breach of Minn. Light 258 Power & ta contractual to obligation Gerber’s (1960), in fair- Voldeo which N.W.2d proximate and the natural cause of all be shifted en- demands ness damages arising of the from this tort- actiоn. the shoulders some tirely from Thus, Voldeo while both and Gerber may be those of others. I believe and onto feasors responsible plaintiff, as between them- it is one those cases since case instant selves, has Gerber breached a contractual category within the fourth squarely falls obligation and should responsible Light Power & v. Minnesota Hendrickson results breach, Voldeo of that 373,104 in- N.W.2d Co., Minn. cluding all costs damages of this (1960): See, Daly Bergstedt, lawsuit. seeking indemnity “Where the one [the 244,126 (1964); Fidelity & Cas. liability merely be- has incurred installer] Co. Northwestern Tel. Exch. failure, though negligent, even cause N.W. (1918). Minn. prevent the misconduct of discover or to be sought charged manu- the one [the may conduct Gerber’s also be characteriz- (Italics supplied.) facturer].” as a of its implied ed breach warranty that purpose is fit intended specific facts case of this illustrate parties. Minn.St. That 336.2-315. “discovery” It category. the fairness warranty directly ran to Voldeo and was undisputed injury to plaintiff provided when Gerber a product breached manufacturer, Gerber, the because occurred incorrect, dangerous with an angle elbow Voldeo, wrong part the installer. sent fit for not use as a loading leg. appeared to fit Although part properly or warranty Whether contract theory is loading leg, installation if case, applied this Gerber breached an carefully have exаmined the Voldeo running obligation Voldeo and should be it completed, when could have installation indemnify required Voldeo for the conse- and, greater angle applying elbow noted quences of that breach. We are just physics, have recognized could principles changing equitable common-law principles, possibility of greater disengagement statutory also but enactments involving angle. policy this Because with contract law. protect compensate laws to inno- our are persons injured by Restatement, Restitution, who defective cent which in § case, my governs found view provides: products, both the installer and manufac- against person “Where a has become liable However, *8 neg- this extension of our turer. with another for harm caused to a third protect plaintiff law to should not ligence person because of his negligent failure to in determining rights the dispositive dangerous make safe condition of land Thus, manufacturer inter and se. chattels, which was created by installer the infer the might from evidence one which, misconduct of the other or while as be- installer, two, the experienced that case it duty tween the was the other’s recognized danger safe, have Voldeo, the he is should make entitled to restitution such an angle, inference the for expenditures elbow other greater properly aof manufacturers, twо discharge liability, of such producer the the made in of the discovery danger, of the he component part after defective unless and the assem- , continuation of con- in the the bler finished acquiesced product, both (Italics supplied.) could have dition.” whom been directly sued liability by injured strict party. the De- supplier, installer and a As between urges fendant that since the compensa- the supplier supply duty of is of a injured by tion consumer a defective and the installer should be able part, correct or held product liable for injury caused supplier’s performance of on the rely by product is not involved in such a actually part supplied duty where situation, the two manufacturers should n fits respects. all to be correct in appears simply joint be treated as tortfeasors, situation, the installer should be In with no allowed unless one’s indemnity. entitled is active pas- the other’s instant case is also in the Indemnification agree. sive. We cannot major pur- pol- and social by sound economic supported liability place of strict is to pose the loss in an accident situation The loss icies. by products caused defective on those can, party on the who with the fall should reap who create risk and profit by cost, (1) precautions take the nec- minimum placing product a defective in the stream (2) the accident and insure essary to avoid commerce, regardless of whether the party clearly loss. That is spread the resulted from defect the ‘negligence’ of in the instant case. It is manufacturer the manufacturer. We believe that this knowledge to have con- position best is best purpose accomplished by eliminat- product, placed own which it cerning its ing negligence as an element of any strict of commerce a defective into the stream action, liability including indemnity ac- cheeking parts, double By condition. tions in which the parties are all manu- instructions, diagrams perhaps im- facturers or sellers of product. As supervision, selection and employee proving authority one has observed: ‘In many have avoided this loss with a mini- it could jurisdictions, right of contribution be- manufacturer, larg- mum of cost. as tween tortfeasors is denied if they installers, distributors, than its operation er fault, equal are at but not denied if the retailers, position in the best is econom- seeking tortfeasor only ically adequate to secure insurance. In con- negligent. passively The difficulty of ap- trast, installer could have prevented plying this test to strict liability cases is only seeking this accident further knowl- for deter- irrelevant edge the manufacturer’s product, by mining liability. It is a liability based inspections, making by taking extra upon placing into commerce of a precautions against extra the manufаctur- defective, if product which likely to be likely er’s errors. The installer is less to be dangerous unreasonably under normal against product able to insure defects effi- is, therefore, use. There why no reason fact, ciently. many general poli- responsibility should not trace back to installers apply prod- cies which contain originally responsible party. Since ucts exclusions. The installer privity is not relevant in strict liability very not a efficient insurer of the manufac- cases, injured party could have sued Supreme The Illinois turer’s defects. Court manufacturer, just as well as the recently upheld finding in a party down the distributive chain who similar to this one. It refut- case somewhat injured sold user. The majоrity in this ed the rationale used manufacturer should not be able to es- explained its rationale in the fol- case and cape liability because of this fortuitous lowing terms: injured selection of defendants “ * * * present party, seller, case involves and the immediate if sued [T]he *9 question of indemnification buyer, get should be able to in-
371
2 L.
line of Minnesota
the manufacturer.’
cases. The
demnity
remedy
from
Friedman, Products Lia-
indemnity
long
and M.
has
Frumer
been
used in
(Italics sup-
16A(4)(b)(i).”
bility, sec.
Minnesota3 and elsewhere4 to accomplish
v. Wil-
Mutual Ins. Co.
Liberty
plied.)
variety
in a wide
justice
factual situa
77, 81,
Co., 62 I11.2d
& Tool
Machine
liams
majority
The
tions.
discounts the collective
857,
(1975).
859
N.E.2d
338
experience and development of the law in
of these cases in
all
favor of two recent
awarded
court also
appellate
An Illinois
in New York5
cases—one
and one in Wis
context, making a
a similar
indemnity in
6—both
which repudiate
consin
ac
case:
to the instant
relevant
comment
tive/passive
“
or
* *
primary/secondary
*
distinc
makes clear that
record
but neither of which
tions
abolishes “failure
product the defective
placed
Harvester
indemnity or
to discover”
deals with a man
knowledge
commerce with
stream of
products
ufacturer/installer
similar
lia
Woods failed
use. While
of its intended
It
bility situations.
is not clear that
pressure
dangers
warn Frisch
court,
example,
York
New
intended to
importance of
and of the
vibration
possibility
of full
preclude
indemnity in
merely
this failure
con-
securing
cap,
See,
products
Langford
cases.
v.
by Harvester.”
a defect created
tinued
Motors
Chrysler
Corp.,
F.Supp.
373
1251
International
Frisch v.
(Italics supplied.)
(E.D.N.Y.1974),
applied
the Dole case
507, 522, 338
Co.,
Ill.App.3d
33
Harvester
grant
full
where a dealer did
90,
(1975).
102
N.E.2d
not create a
defect and could not
case,
Likewise,
instant
the installer
it. The majority
have discovered
would use
a defect created
merely continued
questionable authority
to limit indem
manufacturer, which should bear ultimate
narrow
nity
very
to a
class of situations and
product.2
for its
responsibility
destroy one of
thereby
important
its most
were to concede
Even if one
flexibility in securing
ap
a fair
attributes —
plau
a somewhat
majority opinion presents
among
of loss
portionment
tortfeasors in
ease,
on the facts of the instant
result
sible
See,
widely varying circumstances.
Pros-
sweeping
opinion
nature of the
51,
ser,
(4th ed.),
p.
Torts
313.
§
of both law in the ma
contravention
direct
flexibility in the majority
The lack of
former Minnesota
jurisdictions
jority
problems
will create
in future
majori
opinion
cases.
extremely disturbing.
law are
case,
In this
both
princi
discards well-established
manufacturer and the
ty opinion
equity among
tortfeasors
installer
found liable under theories of
ples of
discretion,
overruling
long
negligence,
implied warranty,
breach of
favor
(1957); Fidelity
of a manufacturer’s de-
2. Such a continuation
based causal Mr. Rogosheske. Justice gence of a manufacturer and a retailer or installer, I agree with the majority apportionment should allowed un- YETKA, Justice (dissenting). policy our comparative
der the embodied in join I Kelly dissents of Mr. Justice statute, 604.01, negligence Minn.St. Rogosheske. Mr. Justice Hendrickson Minnesota & Power Light N.W.2d
(1960), should be modified accordingly.
Since manufacturer was also based on findings case of strict and breach of implied warranty, to escape
should be able full responsibil-
ity damages caused its defective solely fortuity because of allegation
plaintiff’s and the
jury’s finding additional expressed by my so well reasons brother assume, I
Kelly. majority opinion, ap- See, O’Donnell, Implied Litigation: Indemnity Policy for a Case Public in Modern Tort Analysis, 6 Seton Hall L.Rev. 268.