(dissenting).
The plaintiff Vidrine sued the defendant Michigan Millers Mutual Insurance Company for damages for injuries resulting from an automobile accident. Vidrine’s employer, Ashy Construction Company, intervened, claiming indemnification for the workmen’s compensation benefits it had paid to Vidrine, and the defendant reconvened against the intervenor for contribution. The plaintiff employee Vidrine withdrew his suit, and the defendant’s counterclaim against the intervenor for contribution fell.1 Only the intervention of the employer for indemnification remains.
The defendant pleaded the “contributory negligence” of the intervenor as a bar to its claim for indemnification, alleging that Vidrine’s co-employee was concurrently negligent with the other driver, who was insured by defendant.
*318The intervenor’s right to recover against this defendant is a statutory right found in R.S. 23:1101-1103, which is a part of the Louisiana Workmen’s Compensation Act. That indemnification is clearly and concisely spelled out. R.S. 23:1101 in pertinent part reads: “Any employer having paid or having become obligated to pay compensation under the provisions of this Chapter may bring suit against such third person [one who is legally liable in damages to the employee for an injury] to recover any amount which he has paid or become obligated to pay as compensation to any injured employee or his dependent.” Under R.S. 23:1102 the employer’s right to indemnification through intervention, here exercised, is granted, and R.S. 23:1103 grants to the employer who has paid compensation benefits a claim for compensation actually paid which takes precedence even over the injured employee’s or his dependent’s claim for recovery.
It can thus be seen that there is no equivocation in the statutes as to the employer’s right of indemnification against any third person who is liable in damages for an injury suffered by the employee for which the employer has paid compensation ■ benefits.
The majority cites Malone, Louisiana Workmen’s Compensation Law and Practice § 367, for the proposition that the principle- underlying Section 7' of the act (R.S. ‘23:1101 — 1103) “is the notion of requiring the wrongdoer to indemnify the-blameless employer”. (Emphasis mine.) It is from this point of departure that the majority finally holds that any legal contributory negligence — imputed, derivative, personal, or independent — on the part of the employer bars his recovery in indemnification for compensation benefits. The initial departure leads to a final conclusion which is totally invalid.
Nothing contained in these statutes qualifies the employer’s right to obtain indemnification. Unless that statutory right is abridged by other statute or is against public policy, it is absolute. The right is not dependent on absence of negligence.
I begin with the premise, then, that an employer has an absolute statutory right to be indemnified by any third party who is liable in damages for the injury to the employee for which the employer has paid workmen’s compensation benefits. Next I point out that although there may be reasons under public policy for a departure from the absolute right to indemnification, that case is not before us. There is an equitable principle of common law that one-who has unclean hands or is himself a wrongdoer should not be able to benefit from the concurrent wrongdoing of another. This is the principle enunciated in a small minority of the states in order to qualify and limit the employer’s right to-indemnification tinder their workmen’s-compensation law. In those jurisdictions, *320that negligence which is a bar to the employer’s recovery in indemnification is termed “independent personal negligence”, which is to distinguish it from derivative or imputed negligence giving rise to vicarious responsibility.
Now to the instant case: No independent personal negligence on the part of the intervenor Ashy is pleaded; only the derivative or imputed negligence of its employee-servant which fixes vicarious responsibility has been urged. The majority has nevertheless held that the negligence of the co-employee is to be here imputed to the employer under the theory of vicarious responsibility so as to constitute concurring contributory negligence which will bar the employer’s right to indemnification for the workmen’s compensation benefits it has paid the injured employee. The employer here was only vicariously liable to third parties for the negligence of the co-employee. The employer was not even vicariously liable in tort for the negligent acts of the co-employee as between that co-employee and another employee.
“ * * * It is incorrect to say that the negligence of a co-employee is the employer’s negligence, when the injured person is also an employee; the principle of vicarious liability simply does not apply. Thus, if claimant C at the time of the accident was riding in the employer’s truck driven by co-employee D, and was- injured in a collision caused by the combined negligence of D and a third party T, one can, of course, say with propriety that, in an action by T against the employer for damages to T himself, the employer is.vicariously liable for the negligence of D. But in an action by the employer against T, based on C’s injuries, one cannot properly say that the injuries were in part imputable to the ‘employer’s’ negligence, because, vis-á-vis his employee C, the employer is not vicariously liable for the negligence of D.
“Accordingly, the better view seems to be that the employer should not be barred by a defense of concurring negligence, when the negligence is only that of a co-employee.
“On the other hand, if the employer’s negligence was not based on vicarious liability, but was direct and personal, the employer’s suit could be barred in those jurisdictions which use the concept of ‘subrogation,’ on the general equitable subrogation principle that the subrogee must not himself be at fault or guilty of contributing to the loss on which he sues.” 2 Larson, The Law of Workmen’s Compensation § 75.23.
A stronger but similar view is expressed by Malone, supra in footnote to the discussion quoted by the majority: “If the employer is not personally negligent, but the carelessness of one of his workers combines zvith the wrongdoing of a third party to cause the injury to the worker, it *322•seems that the employer should not he denied indemnity against the third party wrongdoer. It is familiar law in most states that an employer who is held liable to a third person because of the negligence of his servant is entitled to indemnity from the servant, and by the same token he should be allowed indemnity against the third party. However, none of the cases dealing with the effect of the employer’s fault on his right to indemnity in compensation have distinguished vicarious liability from personal fault." (Fn. 73, p. 476.) (Emphasis supplied.) 2 For additional discussion, see Larson, Workmen’s Compensation : Third Party’s Action Over Against Employer, 65 Nw.U.L.Rev. 351; McCoid, The Third Person in the Compensation Picture, 37 Tex.L.Rev. 389; Comment, 25 U.Chi.L.Rev. 522; Note, 36 Minn.L.Rev. '549; Note, 37 Iowa L.Rev. 84; Note, 42 Ind.L.J. 430; Note, 9 Utah L.Rev. 939; Note, 13 Vand.L.Rev. 772.
While the majority acknowledges in footnote 3 that Malone and Larson hold the view of a limited bar to indemnification, i. e., independent negligence, it concludes that since only in rare cases is the employer’s contributory negligence the re-suit of personal carelessness rather than vicarious fault, that view shoüld not be given credence. Thus with the broad brush of pen the majority has disregarded express and unambiguous statutory language and determined a vital question in the field of workmen’s compensation without giving full consideration to the possible alternatives.
The North Carolina Supreme Court in a series of cases has made the very distinction suggested by Malon.e ,and Larson. The jurisprudence in that state is to the effect that negligence imputable to an. employer under the common law doctrine respondeat superior is not a bar to his recovery for workmen’s compensation against a third party, but that “independent negligence” may be pleaded in bar of his recovery against such a third party. Brown v. Southern Ry. Co., 204 N.C. 668, 169 S.E. 419; Essick v. City of Lexington, 232 N.C. 200, 60 S.E.2d 106; Essick v. City, of Lexington, 233 N.C. 600, 65 S.E.2d 220; Poindexter v. Johnson Motor Lines, 235 N.C. 286, 69 S.E.2d 495; Lovette v. Lloyd, 236 N.C. 663, 73 S.E.2d 886; Hunsucker v. High Point Bending & Chair Co., 237 N.C. 559, 75 S.E.2d 768.3
*324The general rule of law, however, makes no distinction between independent and imputed negligence, and is to the effect that the contributory or concurrent negligence of the employer can never be pleaded as bar to his recovery from a negligent third party "for workmen’s compensation paid to an employee. Nyquist v. Batcher, 235 Minn. 491, 51 N.W.2d 566; case note, 36 Minn.L.Rev. 549; Enghusen v. H. Christiansen & Sons, Inc., 259 Minn. 442, 107 N.W.2d 843; Fidelity & Casualty Co. v. Cedar Valley Electric Co., 187 Iowa 1014, 174 N.W. 709; Williams Bros. Lumber Co. v. Meisel, 85 Ga.App. 72, 68 S.E.2d 384; Houk v. Arrow Drilling Company, 201 Kan. 81, 439 P.2d 146; Liddle v. Collins Construction Company, 283 S.W.2d 474 (Mo.1955); General Box Co. v. Missouri Utilities Co., 331 Mo. 845, 55 S.W.2d 442; Standard Wholesale Phos. & A. Wks. v. Rukert Term. Corp., 193 Md. 20, 65 A.2d 304; Bristol Telephone Co. v. Weaver, 146 Tenn. 511, 243 S.W. 299; Indemnity Insurance Co. of North America v. Odom, 237 S.C. 167, 116 S.E.2d 22; Clark v. Chicago, M., St. P. & P. R. Co., 214 Wis. 295, 252 N.W. 685; Employers Mut. L. Ins. Co. of Wis. v. Refined Syrups Corp., 184 Misc. 941, 53 N.Y.S.2d 835, aff’d, 269 App.Div. 931, 58 N.Y.S.2d 216; Caulfield v. Elmhurst Contracting Co., 268 App.Div. 661, 53 N.Y.S.2d 25, aff’d, 294 N.Y. 803, 62 N.E.2d 237; Royal Indem. Co. v. Southern Cal. Petroleum Corp., 67 N.M. 137, 353 P.2d 358; Graham v. City of Lincoln, 106 Neb. 305, 183 N.W. 569; Utley v. Taylor & Gaskin, 305 Mich. 561, 9 N.W.2d 842; Johnson v. Willoughby, 183 S.W.2d 201 (Tex.Civ.App.1944); Baker v. Traders & General Ins. Co., 199 F.2d 289 (10th Cir. 1952); Texaco, Inc., v. Pruitt, 396 F.2d 237 (10th Cir. 1968); General Electric Co. v. Cuban American Nickel Co., 396 F.2d 89 (5th Cir. 1968); United Gas Corp. v. Guillory, 206 F.2d 49 (5th Cir. 1953); Otis Elevator Co. v. Miller & Paine, 240 F. 376 (8th Cir. 1917); Marciniak v. Pennsylvania Railroad Company, 152 F.Supp. 89 (D.Del.1957); Cyr v. F. S. Payne Co., 112 F.Supp. 526 (D.Conn.1953). See also Anno. 19 A.L.R. 766; supplemented 27 A.L.R. 493, 37 A.L.R. 838, 67 A.L.R. 249, 88 A.L.R. 665, and 106 A.L.R. 1040.
The majority, again in footnote, recognizes a division in the jurisprudence of this country, citing 101 C.J.S. Workmen’s Compensation § 1010(c), and 58 Am.Jur. Workmen’s Compensation § 359, but fails to mention that the division is such that only the most miniscule minority supports the view adopted here. Most of the cases cited in these works stand for the opposite proposition or can be distinguished. The *326North Carolina cases are cited for support, but, as shown by my previous discussion, they are based on the “independent negligence” theory and do not support the broad theory enounced. The same theory is adopted in a federal district court decision from South Carolina which is cited.4 Two cases out of Illinois have been overruled by statutory amendment.5 Another of the cases decided in the federal courts which barred recovery of compensation payments turned on a contractual agreement to assume full responsibility.6 Also cited is a federal district court decision out of Louisiana which deals with liability between employers and has nothing to do with the Issue presented in this instance.7
California cases are also cited for this.8 While some of the cases in the jurisprudence of California do hold in accordance with the view expressed in the majority opinion here, it cannot be said categorically that this is the California rule. These California holdings are based in a large part upon Witt v. Jackson, 57 Cal.2d 57, 17 Cal.Rptr. 369, 366 P.2d 641, which modified prior jurisprudence after finding the North Carolina rule of “independent negligence” persuasive. In adopting the North Carolina rule, however, the California Supreme Court applied it to a factual situation where only vicarious liability was present, and the “independent negligence” theory was inapplicable. Thereafter a *328number of cases in the various appellate courts of California interpreted and applied the Witt decision. In some cases there existed actual independent negligence of the employer, and in others the employer was only vicariously liable.9 The Witt v. Jackson rule with its variations in the appellate courts has presented numerous and most serious problems. See Comment, 17 U.C.L.A.L.Rev. 651, and Note, 21 Hastings L.J. 661.
Our state courts and the federal courts have apparently believed that City of Shreveport v. Southwestern Gas & Electric Co., 145 La. 680, 82 So. 785, was authority in Louisiana for the view that concurrent negligence imputed to the employer was not ,a bar U> recovery from a.third party. Day v. National-U.S. Radiator Corporation, 117 So.2d 104 (La.App. 1st Cir. 1960), reversed on other grounds, 241 La. 288, 128 So.2d 660; Andrus v. Great American Insurance Company, 161 So.2d 113 (La.App. 3rd Cir. 1964), writs refused. See also International Paper Co. v. Arkansas & Louisiana Missouri Ry. Co., 35 So.2d 769 (La.App. 2nd Cir. 1948); United Gas Corp. v. Guillory, supra, and General. Electric Co. v. Cuban American Nickel Co., supra.
The author of the majority opinion here was the author of the opinion in Andrus v. Great American, supra. He said there unequivocally; “Thus, for example, in Louisiana it has been held that the employer’s own independent contributory negligence may not bar the employer’s right to reimbursement from the tortfeasor of compensation paid to the injured employee, since the employer is merely enforcing the injured employee’s cause of action.” I am not sure whether the author used the phrase “independent contributory negligence” advisedly or inadvertently in this statement of law; otherwise I believe the writer of the majority opinion stated in Andrus the correct Louisiana rule as well as the overwhelming majority view jurisprudentially and doctrinally.
I have pointed out that we do not have before us a case where this court can decide whether a public policy consideration should require us to modify our indemnification rule in workmen’s compensation. The. right of indemnification is founded upon, and is part and parcel of, the same *330socio-economic theory that is the basis1 for workmen’s compensation’s replacing the delictual remedy. Only one remedy is given, one recovery, and the financial loss suffered is so fixed that it may be passed dozm to the consumers. It is not founded upon the same principle as is compulsory insurance or upon similar theories which attempt to spread losses horizontally and collaterally among all situated in similar positions. The question may be posed, and it’appears to be in the mind of the majority : Why excuse vicarious fault of a workmen’s compensation payor when the indemnification he seeks will in many cases come from one who is also only vicariously at fault? The answer is very simple: The workmen’s compensation statute has mandated that difference, and the legislative theory and purpose underlying workmen’s compensation are different from the legislative theory and purpose underlying the assignment of vicarious fault. Moreover, first, and. last, ■ regardless of -purpose or theory, -.indemnification is the lazo (La. Civ. Code Art. 1). ...
-The majority reaches without reason or explanation beyond and even contrary to the authorities it appears to recognize and rely upon — Malone and Larson, who' are in fact the eminent authorities in this field.
If the majority opinion in the instant case prevails with all of its broad implications, it"will be contrary to statutory expression' and to the previous jurisprudence of this state, and it will be the antipode of the view adopted by the vast majority of jurisdictions outside this state. Moreover, it poses the threat of all 'the complexities that arise where the minority view exists.
.For the reasons assigned I respectfully dissent.
. The majority here has made some extended comments as to a third party tortfeasor’s right of contribution from an employer wlxo is a joint tortfeasor. We should be very careful about distinguishing contribution between joint tortfeasors and contribution from a vicariously liable employer under worlcmen’s compensation to a tortfeasor. The case of Moak v. Link-Belt Company, 257 La. 281, 242 So.2d 515, did not present for the Louisiana Supreme Court a question of contribution. There the trial court and the Court of Appeal (229 So.2d 395) concluded that the plaintiff employees of both companies had established the right to recover under a finding of negligence on the part of both companies only under the doctrine of res ipsa loquitur, an evidentiary rule which can be invoked only by certain parties under exceptional circumstances. Thus both the Court of Appeal and the trial court concluded that, as between the defendants Link-Belt and American Sugar, neither had carried the burden of proving the negligence of the other. Tort liability as between the parties was not resolved since neither carried the burden of proof, and contribution of a joint tortfeasor was not a proper issue for the appellate court. Each was entitled to recover from the other on the theory of indemnity under workmen’s-compensation. .
. Vicarious responsibility of the employer for the employee’s acts in Louisiana and in common law stems not from the idea of any actual negligence, moral fault, or wrongdoing on the part of the employer, but is based upon the socio-economic theory that one who controls the activities of another and receives the financial benefits of those activities should be re-, sponsible to third parties. See Blanchard v. Ogima, 253 La. 34, 215 So.2d 902 (1968); Barham, Liability Without Fault, XVII No. 4 La.Bar J 271.
. For the further application’ of the “independent negligence” doctrine see Liberty *324Mutual Insurance Company v. Adams, 91 Idaho 151, 417 P.2d 417, and the dissent in Brown v. Arrington Const. Co., 74 Idaho 338, 262 P.2d 789. See also American Casualty Company of Reading, Pa. v. South Carolina Gas Co., 124 F.Supp.30 (W.D.S.C.1954).
. American Casualty Company of Reading, Pa. v. South Carolina Gas Co., supra, at fn. 3.
. The Illinois cases, Hulke v. International Manufacturing Company, 14 Ill.App.2d 5, 142 N.E.2d 717, and Alaimo v. DuPont, 11 Ill.App.2d 238, 136 N.E.2d 542, were decided at a time when the pertinent portions of the Illinois Workmen’s Compensation Law was undergoing constant revision by legislation and jurisprudential interpretation. See Rylander v. Chicago Short Line Railway Company, 17 Ill.2d 618, 161 N.E.2d 812, for discussion. However, with the 1959 amendment to the law there is now a right for an employer who has paid compensation benefits to recover that amount from a negligent third party whether the employer may have been negligent in causing the injuries or not. Reeves v. Tepen, 268 N.E.2d 912 (Ill., 4th Dist. 1971); Blanski v. Aetna Casualty & Surety Company, 287 F.2d 113 (7th Cir. 1961).
. Fireman’s Fund Indemnity Co. v. United States, 110 F.Supp. 937 (N.D.Fla.1953), aff’d, 211 F.2d 773 (5th Cir. 1954), cert. denied, 348 U.S. 855, 75 S.Ct. 79, 99 L.Ed. 673.
. Aetna Casualty & S. Co. v. Manufacturers Cas. Ins. Co., 140 F.Supp. 579 (W.D.La.1956).
. Although not cited by these authorities, Pennsylvania appears not to adhere to the majority rule. There a third party is allowed to secure contribution from a negligent employer which is limited to the amount of the payable compensation. Maio v. Fahs, 339 Pa. 180, 14 A.2d 105; Brown v. Dickey, 397 Pa. 454, 155 A.2d 836; Stark v. Posh Construction Company, 192 Pa.Super. 409, 162 A.2d 9, allocatur denied. Stahl, Workmen’s Compensation, 22 U.Pitt.L.Rev. 381, 402. Cf. Jackson v. Gleason, 320 Pa. 545, 182 A. 498. No case was found holding that a negligent employer was precluded from seeking recovery for paid compensation under the statutory right of subrogation, but such a conclusion would appear to follow from the rationale of the jurisprudence above.
. Chick v. Superior Court, 209 Cal.App.2d 201, 25 Cal.Rptr. 725; Tate v. Superior Court, 213 Cal.App.2d 238, 28 Cal. Rptr. 548; Castro v. Fowler Equipment Co., 233 Cal.App.2d 416, 43 Cal.Rptr. 589; Jones v. McFarland Co-Op Gin, Inc., 237 Cal.App.2d 94, 46 Cal.Rptr. 572; Souza v. Pratico, 245 Cal.App.2d 651, 54 Cal.Rptr. 159; Benwell v. Dean, 249 Cal.App.2d 345, 57 Cal.Rptr. 394; Smith v. Trapp, 249 Cal.App.2d 929, 58 Cal.Rptr. 229; Holliday v. Miles, Inc., 266 Cal.App.2d 396, 72 Cal.Rptr. 96; Slayton v. Wright, 271 Cal.App.2d 219, 76 Cal.Rptr. 494.