(dissenting).
I have great difficulty in understanding how the claim asserted by Roy E. Johnson against the city for his own injuries is sufficient under Minn. St. 1961, § 465.09, to constitute notice of entirely different causes of action arising out of injuries to Alfred White, Eva White, and Mary Lou Urman, none of whose claims is remotely suggested in the notice which the city received. If the purpose of the statute is to be served, it seems to me that within the prescribed 30 days it was the duty of Roy Johnson to alert the city to the derivative claims which might be asserted against it, however tentative they might have been at the time the notice was served. The fact that the third-party action for indemnity or contribution had not yet matured does not remove the prejudice which *374accrues to the city in failing to be apprised of the likelihood of three additional claims against it, concerning which the notice is silent. The fact that these claims might have been contingent and unasserted is not an unsurmountable impediment to notice but is consistent with our practice of permitting third-party plaintiffs to litigate their right to indemnity or contribution in the main action before such causes of action are actually ripe.
A more serious obstacle to recovery, I believe, is the fact that the majority opinion authorizes an action for indemnity or contribution against a party who cannot under any circumstances be held liable to the principal plaintiffs. This holding directly contravenes the rules heretofore enunciated by this court as I construe them. All of the cases dealing with indemnity involve third-party defendants who themselves were initially liable to the principal plaintiffs.11 find no case which permits recovery for indemnity in the absence of such liability, albeit some involve barring of recovery by virtue of the running of the statute of limitations or the execution of a covenant not to sue.
In the instant case I respectfully submit that under Minnesota law no cause of action ever arose against the city. Szroka v. Northwestern Bell Tel. Co. 171 Minn. 57, 59, 213 N. W. 557, 558, 59 A. L. R. 404, disposes of this question in the following language:
“When a statute or charter requires that a notice of injury be given the municipality the giving of such notice is an essential part of the cause of action. Without it there is no cause of action. * * * [Citations omitted.] The notice is not a statute of limitation.” (Italics supplied.)
The majority opinion takes the position that contribution against the city is justified since there was “a right and a duty preexisting the injury” which distinguishes it from other contribution cases where recovery was denied because the third-party defendant was at no time liable to the principal plaintiffs. We have expressly rejected this contention, however, *375in Koenigs v. Travis, 246 Minn. 466, 479, 75 N. W. (2d) 478, 487, where under almost exactly the same circumstances the original defendant was initially liable to the original plaintiff at the time of the accident but the plaintiff was ultimately barred from recovering because after the accident she married the principal defendant. This is a precise parallel to the instant case, even as viewed in the majority opinion which takes the position that the city was initially liable and only insulated from ultimate liability by the principal plaintiff’s failure to serve notice. In my judgment the Koenigs case is indistinguishable although, as I have indicated, under the Szroka decision I am of the opinion there was no liability on the part of the city at any stage of the proceedings in the absence of timely notice by the principal plaintiffs.
Finally, as I construe American Auto. Ins. Co. v. City of Minneapolis, 259 Minn. 294, 296, 107 N. W. (2d) 320, 322, we have passed on the identical question at hand where the principal defendant sought indemnity against the city but the principal plaintiff had neglected to serve notice or file a claim against the city. With the insertion of the bracketed material to indicate what I understand that opinion to mean, it reads as follows (259 Minn. 298, 107 N. W. [2d] 323):
“* * * In the instant case failure [of Mrs. Nelson] to serve notice on the city within 30 days after the injury to Mrs. Nelson prevented any liability [to her] on the part of the city from existing. It follows that the city cannot be held liable to the party who has paid her since no liability [to her] exists from which indemnity may flow.”
I submit that no other construction of the American Automobile holding is possible without rendering the second sentence of the quotation wholly redundant.
For the foregoing reasons I respectfully submit that the trial court was correct in granting summary judgment to the city, and I would therefore affirm.
"* * * Contribution is appropriate where there is a common liability among the parties, whereas indemnity is appropriate where one party has a primary or greater liability or duty which justly requires him to bear the whole of the burden as between the parties.” Hendrickson v. Minnesota Power & Light Co. 258 Minn. 368, 371, 104 N. W. (2d) 843, 847.