dissenting. Although I agree with the majority opinion that the workmen’s compensation insurance carried by Pickens-Bond Construction Company does not immunize it from liability for indemnity as general contractor to Oaklawn Jockey Club as owner, it seems to me that the summary judgment in the case should be affirmed for another reason. Theo A. Tyler sued Oaklawn Jockey Club, alleging negligence on the part of the Jockey Club in the following particulars:
1. Failing to provide plaintiff a safe place in which to work;
2. Failure to request the defendant Arkansas Power and Light Company to discontinue the transmission lines in question;
3. Negligently constructing their building facilities in close proximity to the power line in question thereby creating a dangerous and hazardous condition for workmen on the concrete porch of said building where the defendant Oaklawn Jockey Club, Inc. knew or should have known that plaintiff or other workmen would be working.
As I read the complaint these are allegations of negligence on the part of the Jockey Club itself and not allegations of derivative, vicarious or joint liability with Pickens-Bond Construction Company.
The cross-complaint of Oaklawn Jockey Club against Pickens-Bond seeks indemnity for any liability to the plaintiff to which Oaklawn is subjected. The motion for summary judgment did not make mention of the issue with reference to workmen’s compensation but was in general terms on the grounds that there was no genuine issue as to any material fact and that Pickens-Bond was entitled to judgment as a matter of law.
The summary judgment dismissed the cross-complaint against Pickens-Bond. While the judgment recites a holding that the workmen’s compensation remedy is exclusive and that Oaklawn Jockey Club cannot maintain an action for indemnity against the contractor for that reason, there was also a general finding that the cross-complaint against Pickens-Bond should be dismissed.
It is my view that Oaklawn Jockey Club cannot recover from Pickens-Bond on an implied indemnity for its own acts of negligence which were the .proximate cause of the plaintiff’s injury. We have held that a general contractor cannot recover from a subcontractor under an express agreement for indemnity for active negligence on the part of the general contractor which was the proximate cause of injury to an employee of the subcontractor. Pickens-Bond Construction Co. v. North Little Rock Elec. Co., 249 Ark. 389 (1970), 459 S. W. 2d 549. The same principle of law should apply as between an owner and a general contractor even if there were an express agreement. There is all the more reason for its application if there was no express agreement.
I would affirm the summary judgment.
I am authorized to state that Chief Justice Harris joins in this dissent.