dissenting:
I must respectfully dissent from the final conclusion reached by the court. While I concur in that part of the opinion holding Okla.Stat.Ann. tit. 63, § 984 (West 1984) is not affected by the state’s adoption of subsequent statutes relating to contribution and comparative negligence, I cannot agree with the broad reading the majority gives § 984 itself. In my opinion, both the Oklahoma legislature and its courts have made clear that it is the public policy of the state to provide to its power companies the absolute right of indemnification for damages sustained by someone coming into contact with their power lines. I further believe that if that public policy is to be changed, this case is not the appropriate vehicle for that purpose.
The basis of my principal concern with the holding reached by the court is the quantum leap negotiated between the conclusion that the Oklahoma contribution statute, Okla.Stat.Ann. tit. 12, § 832(E) (West Supp.1984), does not abrogate existing rights of indemnification, such as the right provided by § 984, to the conclusion that § 984 cannot apply in a situation in which a utility company is a “joint tort-fea-sor.” The court reaches this result by reading into § 984 a limitation on the right of recovery provided in that section. The court concludes that when an injury may be attributed to an alleged negligent act of the power company unrelated to the violation of § 981, the § 984 right of indemnification must be reduced. No such limitation was enacted by the Oklahoma legislature, however, and the notion that the statute should be read in this fashion is not consistent with the interpretation of the Oklahoma Supreme Court.
In Kimery v. Public Service Co. of Oklahoma, 622 P.2d 1066 (Okla.1980), the court .stated Oklahoma’s public policy as determined by its legislature:
[I]t is far more effective and in the public interest to impose this burden [of reducing injuries involving electricity] on those persons who engage in activities near power lines than to require the utilities to maintain constant surveillance over the thousands of miles of power lines which it maintains.
Id. at 1071. It is particularly noteworthy that this statement was made by the court in a case in which the plaintiff claimed the utility was negligent in locating its lines (a claim not unlike that of the defendant in this case). This claim of negligence was ignored by the Kimery court in its decision upholding the right of the utility company to the § 984 indemnity. Accordingly, it must follow that the Oklahoma court interprets its statute to apply even in situations in which the utility company is alleged to be negligent.
It also strikes me that this court’s conclusion nullifies specific statutory language requiring indemnification. As East Central pointed out, § 984 states:
[T]he person, firm, corporation or association violating the provisions of this Act shall be liable to the owner or operator of such high voltage line or conductor for all damage incurred by such owner or *665operator as a result of any such accidental contact.
(Emphasis added.) The effect of this court’s opinion is to alter this provision by referentially substituting the word “all” with the word “some” and by eliminating the underscored phrase. I find nothing in reason or in the cited references that would justify this surgery.
Another matter concerns me here. The court has concluded the jury found the injury was caused 80% by East Central’s failure to comply with the National Electric Code. The record does not justify this conclusion. First, even though the trial judge concluded the application of § 984 required the entry of a directed verdict in favor of East Central, he perceived the possibility that this court might otherwise interpret § 984 and allow consideration of comparative negligence. Therefore, over the strong objections of East Central, made before and after submission to the jury, the judge decided sua sponte to ask the jury to decide whether any act of East Central contributed to the death of Robert Gordon’s employee.
Assuming the jury had something before it to consider, an assumption I find unsupportable, the jury was not instructed how East Central might have been negligent. While there were instructions on the general theories of negligence, there were none which related a violation of the National Electric Code to an act of negligence. Accordingly, I cannot agree from the record presently before us that the jury made a finding that 80% of the fault of the injury resulted from East Central’s negligent construction or maintenance of its power line.1
Finally, I believe this result is contrary to Oklahoma law established in Porter v. Norton-Stuart Pontiac-Cadillac, 405 P.2d 109 (Okla.1965). In that case, the Oklahoma court held a tortfeasor could recover indemnification when it “ ‘was only technically or constructively at fault, as from failure to perform some legal duty, and the negligent or wrongful act of the party from whom indemnity was sought was the primary or proximate cause of the injury.’ ” Porter v. Norton-Stuart Pontiac-Cadillac, supra, at 113 (citing 42 C.J.S. § 27b). The court elaborated: “ ‘if the negligence complained of merely furnishes a condition by which the injury was possible and a subsequent act caused the injury, the existence of such condition is not the proximate cause of the injury (emphasis supplied).’ ” Porter v. Norton-Stuart Pontiac-Cadillac, supra, at 114 (citing Cheatham v. Van Dalsem, 350 P.2d 593, 595 (Okla.1960). Thus, as in this case, where the only fault was in failing to construct or maintain the power line at a particular height — thus making the injury possible —the fault was only constructive. At the same time, the proximate cause of the injury was the negligent act of coming into contact with the power line — thus making the injury actual. In such a case, Oklahoma law would permit contribution by Robert Gordon to East Central. Accordingly, I would affirm the judgment of the district court.
. I have intentionally equivocated between negligent construction and negligent maintenance. Although the court has stated the jury found East Central was negligent in the construction of its line, that understates the case somewhat. Throughout the case, from pleading to proof, Robert Gordon always contended that East Central was negligent in both the construction and the maintenance of its line. Indeed, its only witness concluded but for East Central's failure to conduct required tri-annual inspections of the line, this accident would not have occurred. Moreover, the interrogatory submitted to the jury only required it to determine the “percentages of the parties’ respective acts of actionable negligence.” Thus, it made no findings at all relative to either the erection or maintenance of the line. While East Central never denied the line was too low for safety at the time of the accident, it made no other concessions.