(dissenting).
I respectfully dissent from the opinion of the court. In addition to the issue of negligence, the jury had submitted to it issues involving strict liability and implied warranty of fitness for the purpose. The jury found that the equipment involved here was in a defective condition and unreasonably dangerous to the user when it left the hands of both Gerber and Voldco and that the defective condition was the cause of Tolbert’s injuries. It also found that there was a breach of implied warranty by both defendants and that these breaches were a direct cause of the injury to Tolbert. Thus, it appears that the liability of the defendants here was based not only on negligence, but also on strict liability and breach of implied warranty.
I dissent for two reasons. First, I believe that fundamental fairness and sound economic principles of loss allocation among tortfeasors support indemnity from the manufacturer in the instant case where an installer’s negligence consists only of failure to discover a product defect (1) which is not obvious in the process of installation and (2) which directly results from breaches of contract and implied warranty by the manufacturer to deliver a specified product for a particular known purpose. Second, although there is merit in the policy objective underlying the court’s decision to allocate responsibility among joint tortfeasors based on their comparative negligence, the court would unreasonably extend that decision to remove from the arsenal of a court of equity seeking to do economic and social justice among tortfeasors the flexibility inherent in an appropriate use of common-law indemnity. Indemnity is only one weapon among many. Standing alone it gives the appearance of inflexibility because it is all- or-nothing. However, as one of many equitable and legal remedies, it adds to the flexibility of our judicial system. Indemnity is not the real culprit it is made out to be. Instead, it is our adherence to archaic rules of law that do not permit the use of contribution where fundamental fairness would require it. In doing away with indemnity, we would surrender the equitable powers of the court in virtually all cases and thrust upon the jury an additional and complex task in civil litigation — the task of considering social and economic principles and allocating losses fairly and efficiently. Ironically, the court would effect such a surrender at a time when increasing numbers of legal thinkers are proposing limitations on the functions of the civil jury or even its abolition.1
*369At the outset, I would agree that there is a certain facial attractiveness in the court’s simple premise, that negligent tortfeasors should pay according to their relative culpability. As a general rule, such a premise provides equity and justice in the majority of tort cases. However, there remains a narrow class of cases, including the five categories listed in Hendrickson v. Minnesota Power & Light Co., 258 Minn. 368, 372, 104 N.W.2d 843, 848 (1960), in which fairness demands that liability be shifted entirely from the shoulders of some tort-feasors and onto those of others. I believe the instant case is one of those cases since it falls squarely within the fourth category in Hendrickson v. Minnesota Power & Light Co., 258 Minn. 368, 373,104 N.W.2d 843, 848 (1960):
“Where the one seeking indemnity [the installer] has incurred liability merely because of failure, even though negligent, to discover or prevent the misconduct of the one sought to be charged [the manufacturer].” (Italics supplied.)
The specific facts of this case illustrate the fairness of the “discovery” category. It is undisputed that the injury to plaintiff occurred because Gerber, the manufacturer, sent the wrong part to Voldeo, the installer. Although the part appeared to fit properly in the installation of the loading leg, if Voldeo would have carefully examined the installation when completed, it could have noted the greater elbow angle and, applying principles of physics, could have recognized the greater possibility of disengagement with this angle. Because it is the policy of our laws to protect and compensate innocent persons who are injured by defective products, negligence liability is found against both the installer and the manufacturer. However, this extension of our negligence law to protect a plaintiff should not be dispositive in determining the rights of installer and manufacturer inter se. Thus, while one might infer from the evidence in this case that the experienced installer, Voldeo, should have recognized the danger of a greater elbow angle, such an inference justified only a finding of negligence on the part of Voldeo and its joint and several liability to plaintiff, it does not justify denial of indemnity from Gerber, the manufacturer of the component parts. The record reveals that while Gerber proposed and promised to deliver an elbow with a 35-de-gree angle, the elbow it actually provided had a 47-degree angle. This failure to deliver the correct part was a direct breach of Gerber’s contractual obligation to Voldeo and the natural and proximate cause of all of the damages arising from this action. Thus, while both Voldeo and Gerber may be responsible to plaintiff, as between themselves, Gerber has breached a contractual obligation and should be responsible to Voldeo for the results of that breach, including all the costs and damages of this lawsuit. See, Daly v. Bergstedt, 267 Minn. 244,126 N.W.2d 242 (1964); Fidelity & Cas. Co. v. Northwestern Tel. Exch. Co., 140 Minn. 229, 167 N.W. 800 (1918).
Gerber’s conduct may also be characterized as a breach of its implied warranty that its product is fit for the purpose intended by the parties. Minn.St. 336.2-315. That warranty ran directly to Voldeo and was breached when Gerber provided a product with an incorrect, dangerous elbow angle which was not fit for use as a loading leg. Whether a contract or warranty theory is applied in this case, Gerber breached an obligation running to Voldeo and should be required to indemnify Voldeo for the consequences of that breach. We are not just changing common-law equitable principles, but also statutory enactments involving contract law.
Restatement, Restitution, § 95, which in my view governs this case, provides:
“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 *370made in the discharge of such liability, unless after discovery of the danger, he acquiesced in the continuation of the condition.” (Italics supplied.)
As between an installer and a supplier, it is the duty of the supplier to supply the correct part, and the installer should be able to rely on the supplier’s performance of that duty where the part supplied actually ■fits and appears to be correct in all respects. In such a situation, the installer should be entitled to indemnity.
Indemnification in the instant case is also supported by sound economic and social policies. The loss in an accident situation should fall on the party who can, with the minimum cost, (1) take the precautions necessary to avoid the accident and (2) insure and spread the loss. That party is clearly the manufacturer in the instant case. It is in the best position to have knowledge concerning its own product, which it placed into the stream of commerce in a defective condition. By double cheeking its parts, instructions, and diagrams and perhaps improving employee selection and supervision, it could have avoided this loss with a minimum of cost. The manufacturer, as a larger operation than its installers, distributors, and retailers, is in the best position economically to secure adequate insurance. In contrast, the installer could have prevented this accident only by seeking further knowledge of the manufacturer’s product, by making extra inspections, and by taking extra precautions against the manufacturer’s errors. The installer is less likely to be able to insure against product defects efficiently. In fact, many general liability policies which apply to installers contain products liability exclusions. The installer is not a very efficient insurer of the manufacturer’s defects. The Illinois Supreme Court recently upheld a finding of indemnity in a case somewhat similar to this one. It refuted the rationale used by the majority in this case and explained its rationale in the following terms:
“ * * * [T]he present case involves the question of indemnification between two manufacturers, the producer of the defective component part and the assembler of the finished product, both , of whom could have been sued directly in strict liability by the injured party. Defendant urges that since the compensation of a consumer injured by a defective product or held liable for injury caused by the product is not involved in such a situation, the two manufacturers should simply be treated as joint tortfeasors, with no indemnity allowed unless one’s negligence is active and the other’s passive. We cannot agree. The major purpose of strict liability is to place the loss caused by defective products on those who create the risk and reap the profit by placing a defective product in the stream of commerce, regardless of whether the defect resulted from the ‘negligence’ of the manufacturer. We believe that this purpose is best accomplished by eliminating negligence as an element of any strict liability action, including indemnity actions in which the parties are all manufacturers or sellers of the product. As one authority has observed: ‘In many jurisdictions, the right of contribution between joint tortfeasors is denied if they are at equal fault, but not denied if the tortfeasor seeking contribution was only passively negligent. The difficulty of applying this test to strict liability cases is that negligence is irrelevant for determining liability. It is a liability based upon the placing into commerce of a product which if defective, is likely to be unreasonably dangerous under normal use. There is, therefore, no reason why the responsibility should not trace back to the originally responsible party. Since privity is not relevant in strict liability cases, the injured party could have sued the manufacturer, just as well as the party down the distributive chain who sold the product to the injured user. The manufacturer should not be able to escape liability because of this fortuitous selection of defendants by the injured party, and the immediate seller, if sued by the buyer, should be able to get in*371demnity from the manufacturer.’ 2 L. Frumer and M. Friedman, Products Liability, sec. 16A(4)(b)(i).” (Italics supplied.) Liberty Mutual Ins. Co. v. Williams Machine & Tool Co., 62 I11.2d 77, 81, 338 N.E.2d 857, 859 (1975).
An Illinois appellate court also awarded indemnity in a similar context, making a comment relevant to the instant case:
“ * * * The record makes clear that Harvester placed the defective product in the stream of commerce with knowledge of its intended use. While Woods failed to warn Frisch of the dangers of pressure and vibration and of the importance of securing the cap, this failure merely continued a defect created by Harvester.” (Italics supplied.) Frisch v. International Harvester Co., 33 Ill.App.3d 507, 522, 338 N.E.2d 90, 102 (1975).
Likewise, in the instant case, the installer merely continued a defect created by the manufacturer, which should bear ultimate responsibility for its product.2
Even if one were to concede that the majority opinion presents a somewhat plausible result on the facts of the instant ease, the sweeping nature of the opinion and its direct contravention of both law in the majority of jurisdictions and former Minnesota law are extremely disturbing. The majority opinion discards well-established principles of equity among joint tortfeasors in favor of jury discretion, overruling a long line of Minnesota cases. The remedy of indemnity has long been used in Minnesota3 and elsewhere4 to accomplish justice in a wide variety of factual situations. The majority discounts the collective experience and development of the law in all of these cases in favor of two recent cases — one in New York5 and one in Wisconsin 6 — both of which repudiate active/passive or primary/secondary distinctions but neither of which abolishes “failure to discover” indemnity or deals with a manufacturer/installer or similar products liability situations. It is not clear that the New York court, for example, intended to preclude the possibility of full indemnity in products liability cases. See, Langford v. Chrysler Motors Corp., 373 F.Supp. 1251 (E.D.N.Y.1974), which applied the Dole case to grant full indemnity where a dealer did not create a product defect and could not have discovered it. The majority would use this questionable authority to limit indemnity to a very narrow class of situations and thereby destroy one of its most important attributes — flexibility in securing a fair apportionment of loss among tortfeasors in widely varying circumstances. See, Pros-ser, Torts (4th ed.), § 51, p. 313.
The lack of flexibility in the majority opinion will create problems in future cases. In this case, both the manufacturer and the installer were found liable under theories of negligence, breach of implied warranty, and *372strict liability, and the majority holds that only contribution is allowed. What if the case had been submitted on strict liability alone? What if one or both parties had breached an express warranty? What if breach of an express written contractual provision were involved? Regardless of any problems posed by such questions, the majority would presume to do justice in all future cases by allowing a jury discretion in allocating losses, a result, I predict, which will cause a greater spreading of loss among tortfeasors at the expense of economic and social policies favoring complete shifting of liability.
For the reasons stated above, I would hold that the trial court was correct in granting indemnity to the installer Voldco and thus avoid the possible and probable problems of the majority’s sweeping approach.7
. An interesting article in 59 Judicature, May 1976, p. 478, entitled “Jury Confusion: A Threat to Justice” brings into question the ability of a jury to understand the laws it is expected to apply.
. Such a continuation of a manufacturer’s defect is distinctly different from independent and concurring negligence on the part of the middleman which constitutes an additional cause of plaintiff’s injury, e. g., negligent repair. In such a case, contribution is appropriate because the middleman’s liability does not result solely from a failure to discover the manufacturing defect. Kenyon v. F. M. C. Corporation, 286 Minn. 283, 176 N.W.2d 69 (1970).
. See, e. g., Hillman v. Ellingson, 298 Minn. 346, 215 N.W.2d 810 (1974); Bjorklund v. Hantz, 296 Minn. 298, 208 N.W.2d 722 (1973); Keefer v. Al Johnson Construction Co., 292 Minn. 91, 193 N.W.2d 305 (1971); Kenyon v. F. M. C. Corporation, 286 Minn. 283, 176 N.W.2d 69 (1970); Jack v. Appiebaum’s Food Markets, Inc., 280 Minn. 247, 158 N.W.2d 857 (1968); White v. Johnson, 272 Minn. 363, 137 N.W.2d 674 (1965); Hanson v. Bailey, 249 Minn. 495, 83 N.W.2d 252 (1957); Fidelity & Cas. Co. v. Northwestern Tel. Exch. Co., 140 Minn. 229, 167 N.W. 800 (1918).
. Recent cases from other jurisdictions upholding indemnity in products liability cases analogous to this one include: Tweedy v. Wright Ford Sales, Inc., 31 Ill.App.3d 72, 334 N.E.2d 417 (1975); Hales v. Green Colonial, Inc., 402 F.Supp. 738 (W.D.Mo.1975); Smith Radio Communications, Inc. v. Challenger Equipment Ltd., 270 Or. 322, 527 P.2d 711 (1974).
. See Dole v. Dow Chemical Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 (1972).
. See, Pachowitz v. Milwaukee & Suburban Transport Corp., 56 Wis.2d 383, 202 N.W.2d 268 (1972).
. See, O’Donnell, Implied Indemnity in Modern Analysis, 6 Seton Hall L.Rev. 268. Tort Litigation: The Case for a Public Policy