dissenting:
On numerous prior occasions this Court has pronounced the law regarding indemnification, yet today that precedent is not followed. Just last year, in Borchard v. Wefco, Inc., 112 Idaho 555, 558, 733 P.2d 776, 779 (1987), we unanimously stated that “a retailer [indemnitee] must be free of liability in order to receive indemnity either under a general indemnity agreement or under implied indemnity.” (Emphasis added.) Again, in May Trucking Co. v. International Harvester Co., 97 Idaho 319, 321, 543 P.2d 1159, 1161 (1975), we stated:
“The common law right of indemnity, on the other hand, refers to those situations, where a person who without fault on his part is compelled to pay damages occasioned by the negligence of another.” (Emphasis added.)
Finally, in Industrial Indemnity Co. v. Columbia Basin Steel & Iron, Inc., 93 *290Idaho 719, 723, 471 P.2d 574, 578 (1970), we stated:
“It is well established that under the common law, a person who without fault on his part is compelled to pay damages occasioned by the negligence of another is entitled to indemnity.” (Emphasis added.)
Even though the majority acknowledges that “Agri-Lines ... relies on common law principles of indemnity,” ante at 4, the majority fails to acknowledge that the Borchard, May Trucking and Industrial Indemnity cases require that the negligence of the indemnitee be submitted to the jury to determine whether the indemni-tee is “without fault on his part.” May Trucking, supra at 321; Industrial Indemnity, supra at 723. Layne requested three negligence instructions that would have allowed the jury to decide whether Agri-Lines was “free of liability” or “without fault on [its] part.” Layne’s three requested negligence instructions were as follows:
“THIRD-PARTY DEFENDANTS’ REQUESTED INSTRUCTION NO. 21
“It was the duty of the Third-Party Plaintiff and of the Third-Party Defendant, before and at the time of the occurrence, to use ordinary care for the safety of themselves and for the safety of each other and of each other’s property.”
“THIRD-PARTY DEFENDANTS’ REQUESTED INSTRUCTION NO. 22
“You are instructed that contributory negligence is the failure by the Third-Party Plaintiff to use reasonable care for its own safety, which failure proximately contributes to cause the damages of which it complains.”
“THIRD-PARTY DEFENDANTS’ REQUESTED INSTRUCTION NO. 23
“You are instructed that when it is said in these instructions that the Third-Party Plaintiff was required to use reasonable care to avoid damage to another’s property, it is meant that Third-Party Plaintiff was required to use that degree of care which an ordinarily careful person would have used under the same or similar circumstances.”
However, the trial court refused to give the jury these instructions. This constitutes reversible error. As this Court unanimously stated just one year ago in Garrett Freightlines, Inc. v. Bannock Paving Co., Inc., 112 Idaho 722, 730-31, 735 P.2d 1033, 1041-42 (1987):
“Litigants have a right to have the jury instructed on every reasonable theory presenting a basis of a claim or relief, or defense thereto, where such theory finds support in the pleadings and evidence. [Citations omitted.] Failure to instruct upon a party’s theory of the case constitutes reversible error.” (Emphasis added.)
Layne had a right to have the jury instructed on every reasonable theory presenting a defense to Agri-Lines’ claims. Under our prior cases, the negligence of Agri-Lines is one such theory and, since Layne’s instructions regarding that theory were rejected by the trial court, “[f]ailure to instruct upon [Layne’s] theory of the case constitutes reversible error.” Garrett Freightlines, Inc. v. Bannock Paving Co., Inc., supra at 730-731, 735 P.2d 1033.
Under Garrett Freightlines, in order to have the jury instructed regarding its theory, a litigant’s theory must “find[] support in the pleadings and evidence.” Id. Layne’s theory regarding Agri-Lines’ negligence finds support in both. In its answer to Agri-Lines’ third party complaint, Layne pleaded as follows:
“THIRD DEFENSE
“The Third-Party Plaintiff was guilty of negligent and careless misconduct at the time of and in connection with the matters and damages alleged in the Third-Party Complaint and the Complaints of the Plaintiffs William P. Chenery, David C. Spencer and Lois N. Spencer, which misconduct proximately caused and contributed to said events and resultant damages, if any.”
*291Again, in its motion for a new trial, Layne argued as follows:
“Uncontroverted and controverted evidence at trial clearly established that Agri-Lines was negligent by failing to use due care in lifting the pump owned by Mr. Chenery and Mr. Spencer. Evidence established that Agri-Lines did not ascertain the purpose of the lift plate placed beneath the pump head and that, because Agri-Lines lacked information, the lift crew was unable to achieve a smooth lift. Accordingly, Agri-Lines breached a duty owed to Mr. Chenery and Mr. Spencer.
“.... Additionally, it was an error of law to not instruct on Layne Pump’s primary defense, i.e., that Agri-Lines breached a duty of care owed to Mr. Spencer and Mr. Chenery.”
Thus, Layne’s theory regarding Agri-Lines’ negligence was clearly stated in the pleadings.
The evidence presented, too, strongly supported Layne’s theory. First, plaintiff David Spencer testified that he knew that the lift plates in question were installed for the purpose of pulling the pumps, and that they had been used for that purpose on previous occasions. He testified as follows:
“Q BY MR. McCURDY: Mr. Spencer, the question was if on July 29 or July 30, 1975, someone had asked you what this piece of steel under the discharge head is for, what would you have told them? A I would have told them that was the lifting plate to pull the pump well.”
Plaintiff David Spencer also testified specifically concerning his reaction to the lifting method used by Agri-Lines as follows:
“Q Okay. Sometime after the pump was dropped, did you learn about the way Agri-Lines was lifting the pump”
“A Yes, I did.
“Q What did you learn?
“A That they had used the ears instead of the lifting plate.
“Q What was your reaction to that?
“A Why did they do it?
“Q Why did you have that reaction?
“THE WITNESS: Because they had always used the lifting plate, that’s what we bought them for.
“Q BY MR. McCURDY: Prior to July of ’75, had you seen the lifting plate used to lift the well?
“A Yes.
“Q Pardon me?
“A Yes.
“Q To your knowledge, was there any other reason for that plate to be under the discharge head on your well?
“A No.
“Q If someone had asked you what that plate was for what would you have said?
“A To pull the pump.
“Q In what way?
“A To hook up four cable slings onto the lifting plate and lift the pump.”
Ron Hiddleston, president of the entity that originally drilled the well in question and ultimately retrieved the column after the incident resulting in this litigation, testified as follows:
“Q Now, in the course of that type of work, the lifting that you did occasionally, did you ever have occasion to be involved in lifts of pumps that had lift plates under them?
“A Yes.
“Q Can you tell me where that would have been?
“A Right underneath the pump base.
“Q I asked you on the lift that you had accomplished, what your practice was on whether to use or not use the available lift plate.
“A Well, there was no question whether we’d use it or not; if it was there that’s what you tied onto, was onto the lift plate.
“Q Why is that?
“A Evidently when they installed the pump they figured the weight was great enough that they needed a lift plate.
“Q What advantage could the lift plate give you over what else might be available to latch onto?
*292“A Well, a lift plate is a very thick piece of steel and very strong and that’s what they’re used for.
“Q BY MR. McCURDY: What I need to know, Ron, or what I’m asking, is whether you have an opinion as to what the custom in your business is in this area as to whether available lift plates are used to lift the pump.
“A Yes.
“Q And what is your opinion?
“A My opinion is that if it’s there you use it. Is that what you’re asking?
“Q I’m asking what your opinion is about the custom in your business in this area, not just what you do but. the custom in your business.
“A The custom in this area, that is if you have a deep pump, a deep-setting, or maybe it doesn’t have to be that deep if we’re talking 12-, 14-inch column, you use a lift plate when you install it, and when you go to pull it you use it, or to put it back.
“Q And why is that?
“A Because of the weight and the ears that are on these pump bases aren’t designed to pick those pumps up.”
In addition to the testimonies of David Spencer and Ron Hiddleston, the testimony of two other witnesses supports Layne’s claim that Agri-Lines was negligent. Jimmy Brock, a witness for Layne employed in the irrigation drilling business for 35 years, testified that the industry custom calls for the use of lift plates when they are available. Further, Robert A. Spencer, an employee of Agri-Lines at the time of the incident resulting in this litigation, visited the site and became aware of the lift plate on the pump in question. He testified that he discussed the use of the lift plate with members of the work crew before the work was initiated:
“Q Can you tell me what was said?
“A Yes. At that time I told both Floyd [Stutheit, the service manager] and Mike [Ward, the rig operator] that we had a lifting plate and we would require two slings to lift the pump, and Floyd said that was no problem, they had broken the discharge head in Parma and they were familiar with the use of lifting plates. But he also informed me that they might not have two slings of identical size which might be required, but he would be able to get them from Layne in Nampa as they had borrowed identical slings from the same company before.
“Q Backing up for a second to the conversation you related a few minutes ago between Mr. Stutheit, Mr. Ward and yourself regarding the lift plate, did either one of those people tell you that they knew what a lift plate was?
“A Yes, both.”
Robert A. Spencer further testified regarding the industry standard as follows:
“Q Based upon your knowledge in the industry and your experience in the industry, would a primary guideline in repair work be if you have a deep well, as you previously defined it, and you have a lift plate in place, is the primary guideline to use that lift plate?
“A Yes. The accepted practice would be to utilize the lift plate, and if the lift plate were not present on a deep well setting, I would safety tie the shaft as well.”
In addition to this testimony from Agri-Lines’ own employee, there was testimony potentially demonstrating Agri-Lines’ negligence in operating the rig used to lift the pump in question. Mike Ward, operator of the rig, testified that pertinent inquiries were not made before the lifting job began. Further, he testified that the throttle on the pump rig had to be set at three progressively higher settings during the first few feet of the lift, potentially indicating that a smooth lift was not being accomplished.
Thus, Layne’s theory regarding Agri-Lines’ negligence was strongly supported in both the pleadings and the evidence. Accordingly, under Garrett Freightlines, Layne had a right to have the jury instructed on this particular theory of its case. Because “[fjailure to instruct upon a party’s theory of the case constitutes reversible error,” we should reverse and remand *293for a new trial. Garrett Freightlines, Inc. v. Bannock Paving Co., Inc., supra.