This matter came on for trial before the Court without a jury and was tried April 26 and April 29, 1963. Firestone, Fink, Krawetz, Miley and O’Neill, by Messrs. James P. Miley and Israel E. Krawetz, appeared on behalf of the plaintiff Whirlpool Corporation; Altman, Geraghty & Mullaly, by Mr. James Geraghty, appeared on behalf of the de-' fendant Morse Tuekpointing Co. The Court having heard the evidence and having considered the oral and written arguments of counsel, and being fully advised in the premises, now makes the following Findings of Fact, Conclusions of Law and Order for Judgment.
FINDINGS OF FACT
I.
Plaintiff is a Delaware corporation, having its principal place of business in Chicago, Illinois, and is engaged in the manufacturing business. The plaintiff operates a manufacturing plant in St. Paul, Minnesota. The defendant is a Minnesota corporation, having its principal place of business in St. Paul, Minnesota, and is engaged in building restoration and repair work.
II.
This Court has jurisdiction under 28 U.S.C. § 1332 by reason of the diversity *647 of citizenship between the parties and the fact that the amount in controversy exceeds the sum of $10,000 exclusive of costs and interest.
III.
On or about August 24,1956, the plaintiff decided to have certain sandblasting done on exterior masonry elevations on one of its buildings in St. Paul, Building Number 17, and upon completion of the sandblasting, to have the masonry repaired and waterproofing applied to all the outside masonry surfaces which were to be sandblasted.
IV.
The matter was discussed with the defendant Morse Tuckpointing Company and thereafter the Morse Tuckpointing Company did submit an offer in writing to perform the work. In the written offer, the price was quoted and the work to be done described. The offer contained also the following: “The above quoted prices include all operations; complete insurance coverage, wages, material, taxes, equipment, power tools, and any other expense necessary to complete a first class job. Water and electricity to be furnished by the building owner. The cleaning of windows is not included in this proposal. * * * Work to be executed in a neat and workmanlike manner. All work to be done by men fully insured, thoroughly experienced and specializing in this particular type of work. * * * This is highly specialized work and if desired, we will provide a safe and easy way for you or anyone representing you to inspect this work as it progresses.” The offer had a space typed in for signature and acceptance by the plaintiff.
V.
The defendant’s proposal to the plaintiff was not signed and accepted by the plaintiff in the space provided on the proposal. Instead, the plaintiff submitted a purchase order to the defendant, which the defendant accepted. This document constitutes the written contract between the parties with regard to the cost of the work. The purchase order did not contain any of the above mentioned terms and conditions as to the work being done in a neat and workmanlike manner by experienced workmen, but the parties probably still felt and the Court finds that the defendant was bound by these warranties in its proposal. The purchase order did provide, inter alia, as follows:
“14. COMPLIANCE WITH LAWS —The seller agrees to comply with all applicable state, federal and local laws and executive orders and regulations issued pursuant thereto.”
VI.
The defendant’s insurance policies did not contemplate defense of third parties against suits such as brought by defendant’s employee Kruezkemper against the plaintiff here. With that exception, the defendant’s policies in force on April 10, 1957, provided complete insurance coverage. Prior to submitting the purchase order to the defendant, the plaintiff requested that the defendant submit all of its insurance policies to the plaintiff for examination. The plaintiff was fully aware at the letting of the contract that the defendant’s insurance policies did not include provision for defense of suits such as was brought by Mr. Kruez-kemper.
VII.
The work was to be done on Building No. 17, attached to the side of which is a conveyor housing. The roof of this conveyor housing is about 60 feet above the ground. Below this conveyor housing is another conveyor roof. The upper conveyor roof was pitched. For the apparent purpose of facilitating walking along the pitched roof, there were 2 x 4’s running the entire length of the roof near its center. These 2x4’s were attached to the roof by metal cleats held in position by %, inch steel bolts. The roof was made of corrugated steel.
VIII.
The contract was dated October 9,1956, and some work was done by the defendant *648 in the fall by some of the same employees who returned in the spring of 1957 to complete the work. On April 10, 1957, a crew of three of the defendant’s employees came to Building No. 17 to engage in the work, one of whom was Eugene L. Kruezkemper. Mr. Kruez-kemper had been at the building the previous fall and had walked along the roof in question then and, in fact, had walked along the roof in question the day before. Mr. Kruezkemper was experienced in working in high places, having been engaged in this general type of work for eight years.
IX.
In doing the waterproofing work the men worked from a stage swing which was suspended from the roof of the building. They would start working at the top of the building and gradually work down. From their position on the swing the men were able to waterproof a width of about twenty feet of the wall and then the swing would have to be moved over. The men had begun waterproofing on the east side of the south wall of the building and by about 11:30 A.M. on April 10, 1957, had moved the swing from right to left (east to west) about four times. To accomplish each move Mr. Kruezkemper had gotten off the swing, walked along the 2x4’s to the west to a window, gained access to the building interior, and proceeded to the roof where he performed the necessary adjustments to the boom equipment which held the swing in place. About 11:30 A.M. Mr. Kruezkemper planned to leave the swing and proceed down the conveyor housing roof to the window, either because the snow which had begun to fall was forcing the termination of the work or because it was again time to move the swing. Mr. Kruezkemper was wearing shoes with Neolite soles. He stepped off of the stage and took one step on the 2x4’s, when one of them broke and caused him to lose his footing and fall to the ground about sixty feet below. Mr. Kruezkemper suffered severe injuries ?,nd was in the hospital for three and one-half months.
X.
Mr. Kruezkemper received the benefits of Workmen’s Compensation and some four years later filed a suit in tort against the Whirlpool Corporation, the plaintiff here, pursuant to the third-party provisions of the Minnesota Workmen’s Compensation statutes. The present plaintiff notified the present defendant of the commencement of the action and tendered the defense of the action to the defendant, stating that the plaintiff would look to the defendant for indemnity of attorneys’ fees if defendant declined the defense of the suit. The defendant refused to defend the action. Both Mr. Kruezkemper and the Whirlpool Corporation were represented by competent and able counsel. The counsel for Whirlpool found it necessary to spend some four hundred hours in preparation of the defense as “the trail was cold.” Counsel’s diligence uncovered some rather damaging evidence as to liability on Whirlpool’s part (which evidence Mr. Kruez-kemper’s counsel never became aware of) but also came up with some good evidence with which to combat Mr. Kruezkemper’s claim for $225,000. Though Mr. Kruez-kemper’s counsel had demanded $150,000 to settle the case, Whirlpool’s local counsel was able to effectuate a settlement for $40,000. The Whirlpool Corporation then brought this action against the Morse Tuckpointing Co., alleging that the latter should indemnify the former for the $40,000 and the counsel fees and other expense which it had expended as a result of Mr. Kruezkemper’s suit.
XI.
The 2 x 4’s which were attached to the plaintiff’s corrugated tin roof were approximately ten years old and were quite rotten on the inside, which was the reason that one of them broke on April 10, 1957, when Mr. Kruezkemper stepped on it. The age and condition of the 2 x 4’s was not apparent to cursory examination as they had been painted over twice, the second time having been in 1956. The man who was in charge of the defendant’s employees on that day testified that *649 he had inspected the roof and the 2 x 4’s for danger on numerous occasions in 1956 and the spring of 1957. He weighed 215 pounds (“heavier than the other boys”) and he tested the boards by walking on them — while holding onto a fall line — -as well as looking at them. He did not examine them “closely.” Mr. Kruezkem-per felt confident in walking on the 2 x 4’s at the time of the accident for he had traversed the ill-fated 2x4 on three or four previous occasions that same day without any trouble.
XII.
The State Industrial Commission had issued at the time of this accident a Construction Safety Code which did not have the force and effect of law. This Code provides that for Painters’ or Tuck-pointers’ Scaffolds safety lines shall be provided “between each pair of hangers or falls.” Section 56. Falls are the ropes on each end of the swing or scaffold that;provide support from the roof for the swing or scaffold. Section 62 provides that:
“Roofers working on steep-pitched roofs shall be furnished with a safety belt and have a % inch number one grade untreated manila rope for a life line securely fastened to building and safety belt.”
The foregoing provisions are applicable to employers. The last sentence of M.S.A. § 182.12 provides:
“Persons employed upon swinging scaffolds shall use a life line securely fastened to their persons and to some support other than the swinging scaffold.”
Mr. Kruezkemper testified that he was, at the time of the accident, aware of the Construction Safety Code and that he knew about the requirement of life lines. Safety or life lines were not in use on Building No. 17 on April 10, 1957.
XIII.
The defendant Morse Tuckpointing Co. had the requisite safety equipment in its possession and available for use by its employees. The latter seem to have been generally indifferent to life lines and safety belts. The man who was working alongside Mr. Kruezkemper on the scaffold moments before the accident testified that he would not want to use a safety line and that he felt no need to use one. Mr. Kruezkemper testified that he could have used a life line in walking along the roof from the scaffold to the window, but at the specific time of the accident he probably would not have used a life line if it had been there, in view of the fact that he had walked along the 2 x 4’s previously on that day.
XIV.
A plant engineer at the plaintiff’s St. Paul plant had specific knowledge that the 2x4’s in question were rotten. When the plaintiff had the roofs (and consequently the 2x4’s) of its Building No. 17 painted in 1956, the foreman for the painting contractor told the plaintiff’s plant engineer that the 2x4’s on the conveyor roof “were rotten and should be replaced.” The plant engineer notified his supervisor in the maintenance department of this condition, but nothing was done about it.
XV.
The failure of the plaintiff Whirlpool Corporation to use reasonable care to maintain its premises in a safe condition was a proximate cause of the injury to Mr. Kruezkemper.
XVI.
The failure of the defendant to assure that safety lines and other safety equipment were taken from its warehouse to Building No. 17 and installed and continually used by Mr. Kruezkemper and his fellow employees on April 10, 1957, if a breach of the contract between the plaintiff and defendant, was not a proximate cause of the injury to Mr. Kruezkemper on that date.
XVII.
The knowing failure of Mr. Kruez-kemper to comply with the last sen *650 tence of M.S.A. § 182.12 was a proximate cause of the injuries he sustained on April 10, 1957.
CONCLUSIONS OF LAW
I.
Negligence on the part of the plaintiff in failing to correct a dangerous condition of which its employees had specific knowledge was the primary and proximate cause of the injury to Mr. Kruezkemper on April 10, 1957.
II.
The failure of the defendant to ensure that a life line was in use on Building No. 17 on April 10, 1957, if a breach of the contract between the parties, was not a proximate cause of the injuries to Mr. Kruezkemper and does not confer a contractual right of indemnity on the plaintiff.
III.
The defendant did not breach its contract insofar as “complete insurance coverage” is concerned nor with regard to the replacement of the rotten 2x4’s on the plaintiff’s roof.
IV.
The failure of Mr. Kruezkemper to avail himself of the safety equipment which was provided at the warehouse for his use by the defendant was a proximate cause of his injuries on April 10, 1957.
V.
The defendant is entitled to judgment against the plaintiff ordering that the plaintiff is not entitled to indemnity or contribution against the defendant for sums expended for settlement and attorneys’ fees and other expense in the action against the plaintiff by Mr. Kruezkemper.
Let judgment for defendants be entered accordingly.
MEMORANDUM
This is an action for indemnity or contribution, but the latter theory has not been pressed as forcefully as the former. The definitive decision on indemnity in Minnesota is Hendrickson v. Minnesota Power & Light,
“ [W] here the parties are not in pari delicto and the injury results from the acts of one whose negligence is the primary, dominant cause of the injury, and if such negligence exposes another to liability, the former is liable to the latter in the full amount of the damages incurred by such act. The teachings of Minneapolis Mill Co. v. Wheeler,31 Minn. 121 ,16 N.W. 698 , and Fidelity & Casualty Co. v. Northwestern Telephone Exchange Co.,140 Minn. 229 ,167 N.W. 800 , fully sustain this view. Here, these parties were not in pari delicto. The railway company had no control over the construction of this bridge or of the workmen who were employed thereon. The railway company was required to operate its trains under the bridge and to direct *651 its trainmen to perform their duties in and about the bridge. The repeated instances of timbers and debris falling from the bridge, which rendered the railway company liable under the Federal Employers’ Liability Act, was a condition which the railway company did not create. Its liability arose because of the non-delegable duty which rested upon it to exercise reasonable care to furnish Lawrence a safe place to work. Any negligence attributed to it so as to render it liable to Lawrence arose by the wrongdoing of those in charge of the construction of this bridge. The primary duty rested upon Waylander-Peterson Company to perform its work on the bridge so as not to endanger the workmen who were required to work in proximity thereto. Its neglect was the primary, active cause of Lawrence’s injuries. The railroad company’s negligence, as between the parties, was secondary and passive.”
The Lawrence case is mentioned merely to put the instant case in its proper context. Here the plaintiff admits what it describes as “concurrent” negligence, which, of course, takes the case out of the purview of Lawrence v. Great Northern Ry., supra, and the Minnesota cases cited therein. The plaintiff relies solely on the contract between it and the defendant, and the duties and obligations which it wishes this Court to imply into that contract.
There was some argument at the trial whether the defendant’s proposal or the plaintiff’s purchase order constituted the written agreement between the parties. The Court has found that the defendant’s warranty to do the work in a neat and workmanlike manner was part of their agreement.
The plaintiff’s chief argument is that the defendant owed a contractual duty to the plaintiff to ensure that life lines were in use on Building No. 17 on April 10, 1957. The plaintiff urges that this duty arises principally from the terminology in the purchase order, which stipulated that the defendant would comply with “all applicable state, federal and local laws and executive orders and regulations issued pursuant thereto.” The plaintiff argues that the Construction Safety Code which was promulgated by the Minnesota Industrial Commission had the force and effect of law. The plaintiff relies on M.S.A. § 15.042, subd. 1, which provides:
“Subdivision 1. For the purpose of carrying out the duties and powers imposed upon and granted to administrative agencies, each agency may promulgate reasonable rules and regulations and may amend, modify, or annul the same, and may prescribe methods and procedure in connection therewith. They shall prescribe reasonable notice, a fair hearing, findings of fact based upon substantial evidence, and shall not exceed the powers vested by statute.”
Subdivision 3 goes on to provide that every rule which is properly filed shall have the force and effect of law. The defendant argues that subdivision 1 of M.S.A. 15.042 merely gives the Commission the power to promulgate regulations to enforce the powers given it by statute. In other words, the Commission’s authority is limited to enforcing laws and does not extend to making laws or otherwise exercising a general regulatory authority. The defendant’s argument seems the better one, for subdivision 1 of M.S.A. § 15.042 seems to contemplate merely the making of rules by the Commission to govern its px-oceedings. M.S.A. § 175.17, which deals with the powers and duties of the Industrial Commission does not seem to enlarge this rule-making power. The pertinent subsections of that section are as follows:
“(1) To exercise such powers and perform such duties concerning the administration of the workmen’s compensation laws of the state as may be conferred and imposed on it by such laws;
“(2) To exercise all powers and perform all duties now conferred and *652 ■ imposed on the department of labor and industry as heretofore constituted, and the bureaus of such department, so far as consistent with the provisions of this chapter;
“(3) To adopt reasonable and proper rales and regulations relative to the exercise of its powers and duties, and proper rales to govern its proceedings and to regulate the mode and manner of all investigations and hearings, which shall not be effective until ten days after their adoption, and a copy of these rules and regulations shall be delivered to every citizen making application therefor; ”
In short, the Commission seems to have only the powers (1) which have been otherwise conferred upon it by statute and (2) to make rules which are necessary for the exercise of the above powers and for the regulation of its investigations and hearings.
It would thus seem that the Construction Safety Code cannot be incorporated into the pax-ties’ contract. It is possible that M.S.A. § 132.12 is part of the contract. The last sentence of this section provides:
“Persons employed upon swinging scaffolds shall use a life line securely fastened to their persons and to some support other than the swinging scaffold.”
As will be pointed out later, there is some doubt that this section is applicable here, but it can be assumed to be part of the contract. Reading the contract even more broadly, a further contractual duty can be founded upon the warranty to do a neat and workmanlike job. It is arguable that this terminology imposes a duty to use due care, Ryan Stevedoring Co. v. Pan-Atlantic S.S. Co.,
There is little doubt (as the plaintiff has admitted) that the plaintiff breached its duty toward defendant’s employee Kruezkemper with regard to the 2x4’s that were attached to the roof of the conveyor housing alongside plaintiff’s Building No. 17. There is pei'haps some doubt (which need not be resolved in this case) as to just how this duty should be phrased. In the leading case of Nash v. Minneapolis Mill Co.,
“ " * * [T]he owner or occupant [of land] is bound to use ordinary care and diligence to keep the premises in a safe condition for the access of persons who come thereon by his invitation, express or implied, for the transaction of business, or for any other purpose beneficial to him.”
In that case the plaintiff had been injured by falling through a platform which had negligently been allowed to become rotten. Likewise, in Marsh v. Minneapolis Brewing Co.,
The facts of the case leave some doubt that, even if the defendant had taken great pains to see that his employees had taken life lines to Building No. 17 and properly installed them, this accident would have been prevented. The plaintiff had painted over rotten 2 x 4’s on its roof, and there seems to be no doubt that this was the primary cause of Kruezkem-per’s injuries. Even if the life lines had been installed on the building, early in the morning of April 10, 1957, there is considerable doubt that Kruezkemper would have been using a life line at the time of the accident. It is far from clear that this requirement of life lines was intended to apply to situations in which the employees were traveling considerable distances away from the swinging scaffold. The statute seems designed to protect the worker if the swinging scaffold should fall. But assuming the safety or life line had been there, Kruezkemper’s testimony was to the effect that he had been lulled into a feeling of safety after traversing the 2 x 4’s three or four times on the morning of the accident and that he probably would not have used a safety line even if one had been there. Viewing the case in this light, the defendant’s breach of contractual duty, if any, can not be said to have been the proximate cause of Kruezkemper’s injuries. It is clear that the accident would not have happened but for the rotten 2x4’s having been painted over and left upon the roof. It is not clear that a safety line hanging between the fall lines would have prevented the accident. And finally, and most important, it is not clear that the contract relied upon is sufficient to sustain the plaintiff’s claim to indemnity under any reasonable view of this case.
*654
It would seem that the most accurate view of this case is as one in which the plaintiff’s breach of duty was the proximate cause of the accident. It cannot be said with reasonable certainty that if the defendant’s employees had installed the lifelines on Building No. 17 on April 10, 1957, that Kruezkemper would have used it to traverse the 2x4’s for the fourth or fifth time. The case in this posture is one in which the plaintiff is seeking to interpret this contract to mean that a company whose fault did not contribute to the accident should indemnify one whose fault was the sole cause of the accident. It is not only somewhat difficult to think that one who promised to obey applicable laws and do a neat and workmanlike job intended such a result to flow from those words, but — and more important — the case law suggests that these words cannot be stretched that far. Even where the parties have had an express contract of indemnity, the courts have not construed it to be applicable where the accident was proximately caused by the sole negligence of the indemnitee (which is probably the situation here). See Mustas v. Inland Construction Co.,
“To imply such a promise would mean that the employer agreed to protect the shipowner against liability arising out of the shipowner’s own negligence. In the absence of an express promise, such an implication would be utterly unreasonable. Hence we can find no contractual basis for indemnity * *
This case and the Mayer case, which will be discussed in more detail later, suggest that the Minnesota Court would not invoke an implied warranty to indemnify the owner from the results of its own negligence.
On the other hand, if this case is viewed as one in which the lack of a life line contributed to the injury of Kruezkemper on April 10,1957, the plaintiff’s case is no stronger and is perhaps considerably weaker. Even where the parties have had an express contract of indemnity, some courts have been reluctant to hold it applicable where the in-demnitor and indemnitee were concurrently negligent. See
There is no need, however, to continue to recast the facts and needlessly prolong this memorandum. It is enough to say that the theory of the plaintiff’s present action, a right of contractual indemnity, is fraught with doubt which, considering that the plaintiff has the burden of persuasion, requires the judgment to be for the defendant. The reason, as far as the
express
contract is concerned, is found in the law of contracts and not in the common law doctrines of indemnity and contribution. See Anthony v. Louisiana & Ark. Ry.,
The plaintiff, however, argues that this Court should
imply
an agreement by the defendant to indemnify the plaintiff, citing Ryan Stevedoring Co. v. Pan-Atlantic S.S. Co.,
“We think the improper stowage the primary and active cause of the accident. Under our holdings in Lo Bue v. United States, 2 Cir.,188 F.2d 800 , and Rich v. United States, 2 Cir.,177 F.2d 688 , indemnity over is recoverable where, as here, the employer’s negligence was the ‘sole’ ‘active’ or ‘primary’ cause of the accident. Nor does the absence of a formal contract bar indemnity. McFall v. Compagnie Maritime Belge (Lloyd Royal) S.A.,304 N.Y. 314 ,107 N.E.2d 463 ; Rich v. United States, 2 Cir.,177 F.2d 688 . Ryan was obligated by implied contract to perform the work in a reasonably safe manner. This duty Ryan breached; accordingly, Pan-Atlantic is entitled to indemnity.”
Taking the case to resolve conflicting views on Federal questions not relevant here, the Supreme Court affirmed the decision of the Court of Appeals, phrasing the theory of recovery solely in terms of breach of an implied warranty of workmanlike service. (This slight change in terminology, which has perhaps caused some difficulty in this case, will be shown to have no different legal effect than the terminology employed by the Court of Appeals.)
There is no quarrel with Ryan here; the facts of this case are simply considerably different from those in that case. That case turned on the rationale that the negligence of the employer (the in-demnitor) “was the ‘sole’ ‘active’ or ‘primary’ cause of the accident.”
In none of the previous cases was the negligence of the person seeking indemnity the primary or active cause of the injury for which it had responded iu damages. Most if not all of those cases involved an indemnitee who had been held constructively liable for breach of a non-delegable duty. The indemnitee then proceeded against the party who had actually caused the accident or who had a contractual duty of care which had been breached. See also Seaboard Air Line Ry. Co. v. American Dist. Elec. Protective Co.,
“Probably, as is so often the case in the law of torts, no one explanation can be found which will cover all of the cases; and the duty to indemnify, like so many other duties, arises where community opinion would consider that in justice the responsibility should rest upon one tort feasor rather than another.”
It has naturally followed from this equitable premise that indemnity should not be allowed where the parties were in equal fault or where — speaking broadly— there was no good reason to wholly shift the loss from one to another.
One of the leading cases as to when indemnity is
not
allowed is Builders’ Supply Co. v. McCabe,
The Cahill Bros, case supra is fairly close to the facts of this case, but the Mayer ease is even more persuasive. In the Mayer case an invitee in the owner’s building desired to go outside to “get a breath of air.” He was instructed by one of the owner’s employees to go out an unlocked door which had an “exit” sign above it. It was dark outside. He took a couple of steps and fell into an unguarded stairwell under construction by a contractor. He sustained substantial injuries and sued the owner, who cross-claimed against the contractor for indemnity. The owner relied on the following provision in its contract:
“PROTECTION OF WORK, PROPERTY AND PERSONS—
“The contractor shall adequately protect the work, adjacent property and the public and shall be responsible for any damage or injury due to his act or neglect.” (Emphasis supplied.)
It is to be observed that the contract in the Mayer case gives much more protection to the owner of the premises than does the contract in this case. The contractor there promises to indemnify the owner for
any
damage due to his act or neglect; the contractor here has only promised to obey applicable laws and do a workmanlike job. The trial court entered judgment against the owner on its claim for indemnity and the intermediate appellate court in New Jersey affirmed this decision.
“If, * * *, the invitor (contrac-tee) is himself guilty of separate and independent active negligence which concurs with that of the contractor in producing the invitee’s injury, there can be no recovery inter se on the ‘protection of work’ clause in the contract. The reason is obvious. The theme of the contract is that the contractor will not perform the construction work in such negligent fashion as to create dangerous conditions on the premises and thereby expose third persons to harm. Protection of such persons against independent negligent acts of commission of the contractee must be considered beyond the scope of that undertaking in the absence of language clearly establishing such a broad obligation.”
This language as well as the ensuing discussion in Mayer makes it clear that where an owner wishes to be indemnified by a contractor in a situation where the owner has been guilty of something
more
than a mere failure to inspect, detect, .and correct the unsafe condition, then the owner must say so in fairly plain language in the contract. This is what the parties did in the cases cited in the Hendrickson ease at footnote 20, 104 "N.W.2d at 848. See e. g., Minneapolis Moline Co. v. Chicago, M., St. P. & P. R.,
In those same stevedoring accident cases the Supreme Court has frowned upon the application of theories of active or passive and primary or secondary negligence to cases of contractual indemnity. Weyerhaeuser S.S. Co. v. Nacirema Co.,
Other less important issues require only brief mention. Plaintiff argues that the defendant was bound by virtue of its proposal to provide its men with a safe place to work and that it breached this, duty to the plaintiff by not removing the plaintiff’s own boards and replacing them with safe 2x4’s. Assuming the defendant to be bound by its proposal in this. *660 regard, the evidence is not persuasive that the defendant should have replaced the 2 x 4’s. Another contractor said that he would have replaced them, but the defendant’s employees were not going to work on the conveyor housing roof — they were working on the scaffold. It is far from clear that the defendant had the duty — or the right — to rip up 2x4’s on the plaintiff’s roof and temporarily substitute its own. But even assuming that the defendant did have this duty, it is doubtful that the plaintiff can complain of the defendant not replacing the rotten — and freshly painted — boards of which it had specific knowledge. In Restatement, Restitution § 95 (1937) it is said:
“Where a person has become liable with another for harm caused to a third person because of his negligent failure to make safe a dangerous condition of land or chattels, which was created by the misconduct of the other or which, as between the two, it was the other’s duty to make safe, he is entitled to restitution from the other for expenditures properly made in the discharge of such liability, unless after discovery of the danger, he acquiesced in the continuation of the condition.” [Emphasis supplied.]
The emphasized words suggest that the plaintiff’s continued acquiescence in the condition of the boards makes it a joint participant in the tortious conduct of the defendant, if any, and bars it from indemnity. See Comment a, p. 417. It is one thing when one has relied on the warranties of another and has been held constructively liable to a third party because those warranties were breached. Boston Woven Hose & Rubber Co. v. Kendall,
The plaintiff also urges that the defendant was obligated to insure the plaintiff against suits such as brought by Kruezkemper. The plaintiff bases this argument on the fact that the defendant’s proposal said, inter alia, that “complete insurance coverage” would be provided. The defendant’s president testified earlier (in the discovery process in Kruezkem-per’s suit) that the plaintiff’s personnel requested that the defendant send them its certificates of insurance before it commenced the operation. This suggests that at the time the purchase order was issued the plaintiff was cognizant of the defendant’s precise insurance coverage. An expert insurance agent testified that the defendant’s insurance policies complied with the insurance conditions of the plaintiff’s purchase order but not with the defendant’s own proposal. In view of the testimony of the defendant’s president, however, there is no need to decide whether the proposal’s language regarding insurance was superseded by the purchase order’s insurance provisions.
The plaintiff’s pleadings in this case seek indemnity or contribution. The latter theory was not strongly pressed. Contribution arises out of a situation in which two tort-feasors had a common liability towards a third party and one tort-feasor paid more than his fair share. See Hendrickson v. Minnesota Power & Light Co.,
“ * * * [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. The right does not exist in such circumstances because there is no common liability.” 258 Minn, at 372.
The defendant here was insured under the Workmen’s Compensation law and thus immune from suit in tort by Kruez-kemper. The absence of a common liability between the plaintiff and the defendant compels the conclusion that the plaintiff does not have a right of contribution in this case.