Theo Tyler, an employee of appellee Pickens-Bond Construction Co., was injured on the premises of Oaklawn Jockey Club while in the scope of his employment when the handle of a bull float came in contact with some electrical power lines owned and operated by Arkansas Power & Light Company. Admittedly he is being paid Workmen’s Compensation benefits. Tyler brought suit against Arkansas Power & Light Co. and the Oaklawn Jockey Club, Inc., alleging that the Oaklawn Jockey Club was negligent in failing to provide him with a safe place in which to work; in failing to request Arkansas Power & Light Co. to dis-con tinue the lines and in constructing its facilities too close to the power line. After answer and cross-complaint of A. P. & L. and Oaklawn Jockey Club against each other, Oaklawn Jockey Club, then filed a cross-complaint against Pickens-Bond Construction Co. in which it alleged:
“1. Oaklawn, as the owner, contracted with Pick-ens-Bond as the contractor, to build a new building in Hot Springs, Arkansas, which is the construction that was underway at the time of the alleged accident and injury which is the subject matter of this lawsuit. The construction was entirely under the supervision and control of Pickens-Bond, was only partially completed at the time of the injury on August 15, 1968, and had not yet been turned over to or accepted by Oaklawn.
2. There was implied in the contract between the owner and the contractor an obligation on the part of the contractor to perform the work in a safe manner, to provide safe working conditions for its employees, to refrain from creating hazardous conditions which could cause injury to the contractor’s employees and thereby subject Oaklawn to liability to such employees; and to comply with all laws, regulations and building codes pertaining to safety on the job and manner of doing the work. The plaintiff was at the time of the incident an employee of Pickens-Bond.”
Upon motion of Pickens-Bond, the trial court dismissed Oaklawn’s cross-complaint for implied indemnity on the basis that Pickens-Bond’s liability was limited by the Workmen’s Compensation law, Ark. Stat. Ann; § 81-1804.
Those courts dealing with implied and contractual indemnity, Moroni v. Intrusion-Prepakt, Inc., 24 Ill. App. 2d 534, 165 N. E. 2d 346 (1960), American District Telegraph Co. v. Kittleson, 179 Fed. 946 (8th Cir. 1958) and C. L. Rural Electric Coop. v. Kincaid, 221 Ark. 450, 256 S. W. 2d 337 (1953), ordinarily recognize that the contractor’s duty to indemnify the owner, under such circumstances, is not controlled by the Workmen’s Compensation law. In C. & L. Rural Elec. Coop. v. Kincaid, we were dealing with an express indemnity. The grounds for implied indemnity were stated in the Moroni case in this language:
“The . . . general principle is announced, however, in many cases, that where one does the act which produces the injury and the other does not join in the act but is thereby exposed to liability and suffers damage the latter may recover against the principal delinquent, and the law will inquire into the real delinquency and place the ultimate liability upon him whose fault was the primary cause of the injury.”
The justification for applying the theory of implied indemnity is amply demonstrated by the alleged facts. Should Tyler recover damages against Oaklawn, then under our Workmen’s Compensation law, Pickens-Bond would be reimbursed its Workmen’s Compensation expenditures for an injury that allegedly was caused by and occurred under the control of Pickens-Bond and for which Oaklawn was only secondarily liable.
In holding that the Workmen’s Compensation Act did not abolish the right of a third party to be indemnified the court in the Moroni case said:
“Plaintiff does not sue for damages ‘on account of’ Haviland’s death. Plaintiff asserts its own right of recovery for breach of an alleged independent duty or obligation owed to it by the defendant.
“It may be admitted that if the defendant is held to answer to the plaintiff in this action the result . . . is that an employer is made liable indirectly in an amount which could not be recovered directly. This consequence, we think, does not decide the issue against the plaintiff. Recovery over against the employer is an unusual case like this need not be rested upon any theory of subrogation. An independent duty or obligation owed by the employer to the third party is a sufficient basis for the action.”
The annotation in 53 ALR 2d 977 relied upon by Pickens-Bond as authority for the proposition that an employer is protected by the Workmen’s Compensation law from an action by a third party for contribution deals only with claims of third persons having a common liability such as joint tort feasors. By express provision, the annotation excluded a discussion of those cases, such as this, where the third party’s action is for a duty owed to it by the employer.
It follows that the trial court erred in dismissing Oaklawn’s cross-complaint in so far as it stated a cause of action for implied indemnity.
Reversed and remanded.
Harris, C. J., and Fogleman, J., dissent.