Appeal from an order vacating and setting aside a previous order granting defendant Hogenson Construction Company's motion for summary judgment and the summary judgment based thereon. We affirm.
Lloyd Domier, an employee of appellant Hogenson Construction Company (Hogenson), was injured in the course and scope of his employment on January 20, 1966. Hogenson was performing a construction contract for the Keister Cooperative Elevator Company (Keister) of Keister, Minnesota. Domier made the requisite claims for and received workmen's compensation benefits from his employer, Hogenson. Domier then commenced an action in the United States District Court for personal injuries arising out of the same accident against V. C. Zentz, d. b. a. Zentz Electric Company, the plaintiff in the present action, and Keister. Domier alleged defective or improper installation of power service wires installed by the subcontractor, Zentz, in the building owned by Keister. Defendant Zentz joined ITT Blackburn Corporation and Hogenson as third-party defendants, alleging that if Domier were to recover from Zentz, Zentz was entitled to either indemnity or contribution from these third-party defendants. The parties subsequently settled when Zentz made a payment of $25,000 to Domier.
The action with which we are concerned was instituted by Zentz against ITT Blackburn and Hogenson for indemnity or contribution for all or part of the $25,000 settlement paid to Domier. Zentz claimed that ITT Blackburn was negligent in the design and manufacture of the device used to connect and support an overhead cable in the building owned by Keister. It was the failure of this cable that had allegedly caused the injuries to Domier and precipitated Zentz' claim under the theory of strict liability. The claim against Hogenson was for negligently and unlawfully failing to provide a safe place of employment and the necessary safety devices.
Defendant Hogenson served upon Zentz a request for admissions that the following statements were true: That Hogenson was insured under the Workmen's Compensation Act; that Domier was injured in the scope and course of his employment; and that Domier's claim for compensation was accepted and the benefits were paid under the Workmen's Compensation Act. Upon a positive return of the request for admissions by Zentz, defendant Hogenson moved for summary judgment based upon Minn. St. 176.061, subd. 10.
Hogenson contends that the matter is easily settled under Rule 104, Rules of Civil Appellate Procedure, which controls the time for taking an appeal and the effect of entry of judgment. The rule provides in part:
As the judgment was entered on October 1, 1970, Hogenson contends that the 90-day time limitation has expired and the judgment has become final.
We cannot accept that contention, for the controlling principles are set forth in Rule 54.02, Rules of Civil Procedure, which provides:
Under this rule, there are two criteria which must be satisfied before the court may direct the entry of a final judgment as to any claims or parties less than all of the multiple claims or multiple parties in an action. The lower court did expressly direct that judgment be entered, but failed to expressly determine that there was no just reason for delay in entering that judgment.
The lower court therefore properly vacated the previous order and summary judgment upon this basis, pursuant to Rule
SHERAN, C. J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.