specially concurring.
The elements of an action for common law indemnity are stated in Restatement of Restitution, § 76, as follows:
“A person who, in whole or in part, has discharged a duty which is owed by him but which as between himself and another should have been discharged by the other, is entitled to indemnity from the other, unless the payor is barred by the wrongful nature of his conduct.”
Recovery under the foregoing rule was approved in a line of Oregon cases beginning with Astoria v. Astoria & Columbia River R. Co., 67 Or 538, 548-549, 136 P 645 (1913), and including U. S. Fire Ins. Co. v. Chrysler Motors, 264 Or 362, 505 P2d 1137 (1973); Owings v. Rose, 262 Or 247, 497 P2d 1183 (1972); Citizens Ins. Co. v. Signal Ins. Co., 261 Or 294, 493 P2d 46 (1972); Fulton Ins. Co. v. White Motor Corp., 261 Or 206, 493 P2d 138 (1972); General Ins. Co. v. P. S. Lord, 258 Or 332, 335-336, 482 P2d 709 (1971).
Although plaintiff, in its brief, repeatedly describes its cause of action as one for common law indemnity, plaintiff also repeatedly declares with greater emphasis that the rules entitling a person to common law indemnity, as stated in Restatement >of Restitution, § 76, and the cases cited above, do not apply to his case. I quote only two of several similar statements contained in plaintiff’s brief.
In his opening brief plaintiff quotes verbatim Restatement of Restitution, § 76, and this court’s interpretation of that section in Fulton Ins. Co. v. White Motor Corp., supra, at 210, as follows:
“In an action for indemnity, the claimant must plead and prove that (1) he has discharged a legal obligation owed to a third party;- (2) the defendant *139was also liable to the third party; and (3) as between the claimant and the defendant, the obligation ought to be discharged by the latter. * * ®”
He then states:
“Plaintiff in no way questions the soundness of this rule. Plaintiff contends, however, that the rule finds no application in the instant case. Fulton, supra, and virtually every other recent common law indemnity case considered by this Court have involved the situation where passively negligent tortfeasor A has attempted to recover indemnity from tortfeasor B, whose active negligence has been the basis of a recovery of damages by C against A. * * * (Italics added.)
“By comparison, in the instant case the pleadings reflect a non-negligent party A who is attempting to recover indemnity from tortfeasor B whose sole negligence has caused A to defend an action by C against A.
“The distinction is important because, while fairness and justice require indemnity in the instant case (see Prosser, supra, and Restatement, §76, supra) it would be incongruous in the extreme to apply the rule of Fulton and other similar cases to the decidedly different factual situation now before this Court. * * *”
In his reply brief plaintiff contends with equal emphasis that the rules governing a cause of action in common law indemnity do not apply to his case as follows:
“Defendant’s analysis of Restatement, Restitution §76 as construed by this Court in cases such as United States Fire Insurance Co. v. Chrysler Corp., 264 Or 362, 493 P2d 138 (1972) [sic], similarly lacks merit because the present case is simply without the scope of the holdings of U.S. Fire and Fulton. Only by transforming the present case into something *140which it is not, can defendant contend that U.S. Fire and Fulton are controlling herein.”
The complaint in this case alleges that the sole cause of the injury sustained by Frank Weber was the negligence of Boise Cascade in selecting, installing and operating a flash liquor pump in its paper plant at St. Helens. The complaint further implies, if it does not expressly allege, that plaintiff Kamyr, Inc., was not responsible either in contract or tort for the injuries sustained by Weber, but, on the contrary, alleges that:
“* * * The negligence of defendant Boise Cascade Corporation was the proximate efficient, primary and active canse of injury and damages to said Frank C. Weber.”
It is apparent from a reading of plaintiff’s brief as a whole that plaintiff was attempting to state a cause of action under the rule adopted in Bestatement of Torts, § 914, reading as follows:
“A person who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover compensation for the reasonably necessary loss of time, attorney fees and other expenditures thereby suffered or incurred.”
The same rule is stated in 25 CJS 788, Damages § 50e (1966) and quoted in the majority opinion.
I agree with the majority opinion that plaintiff’s complaint does not state a cause of action because it does not allege any facts from which it can be inferred that Boise Cascade Corporation caused Weber to bring an action against plaintiff Kamyr, Inc., who, as far as plaintiff’s complaint alleges, was a completely innocent party who had no connection with Weber’s injuries. I *141agree with the following conclusion in the majority opinion:
“* * * In this case plaintiff has not alleged facts which make it appear that it could have been reasonably anticipated that Weber would sue plaintiff. It appears to the contrary. Plaintiff’s complaint does not state an action in negligence against defendant because there is no basis upon which to find that defendant’s negligence was the legal cause of plaintiff’s financial injury.”
As I stated at the outset, this is not an action for common law indemnity and plaintiff did not intend it to be. Plaintiff expressly argues that the elements of an action for common law indemnity, as stated in Restatement of Restitution, § 76, and restated in Fulton Ins. Co. v. White Motor Corp., supra, are not present in its case. Under these circumstances, all the discussion in the majority opinion about actions for common law indemnity is surplusage and should be deleted. However, for the reasons stated herein, I agree with the result.