Boyd v. Humphreys

• Decision Date: 16 January 1929
• Docket Number: 26600
• Parties: EARL E. BOYD, ADMINISTRATOR, APPELLEE, v. WALTER G. HUMPHREYS ET AL., APPELLANTS: TRENMORE CONE, APPELLEE
• Court: Nebraska Supreme Court

223 N.W. 658

117 Neb. 799

EARL E. BOYD, ADMINISTRATOR, APPELLEE, v. WALTER G. HUMPHREYS ET AL., APPELLANTS:

TRENMORE CONE, APPELLEE

No. 26600

Supreme Court of Nebraska

January 16, 1929

APPEAL from the district court for Douglas county: CHARLES LESLIE JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

Where an owner enters into a construction contract with another and the latter sublets a segregated part thereof, and such subcontractor employs another to aid him in his part of the construction (each party having comphed with the compensation statutes), and while such employee is engaged in the line of his duties he is injured to his damage, without fault on his part or on the part of his employer, but by and through the actionable negligence of the original contractor, the latter is a " third" party as defined by such statutes, and is liable to such employee for all damages by him sustained by reason of such negligent act.

Under the record the subcontractor is the only employer of the injured party; further, such employer and his employees engaged in the enterprise are the only ones grouped, all others being " third" parties.

Evidence examined and found to support the recovery had.

Appeal from District Court, Douglas County; Leslie, Judge.

Suit by Earl E. Boyd, administrator of the estate of Henry Ray Peterson, deceased, against Walter G. Humphreys and another, doing business under the firm name of the Humphreys & Thomson Company, and another. Judgment for plaintiff, and defendants named appeal. Affirmed.

Brogan, Ellick & Raymond, for appellants.

Mullen & Morrissey, Robert R. Mullen, C. J. Endres and James H. Hanley, contra.

Heard before GOSS, C. J., DEAN, GOOD, THOMPSON and EBERLY, JJ., and REDICK, District Judge.

OPINION

THOMPSON, J.

This is an action wherein the appellee, Earl E. Boyd (hereinafter called plaintiff), as administrator of the estate of Henry Ray Peterson, deceased, seeks recovery of appellants, original contractors, hereinafter called defendants, for negligently causing the death of such Peterson. Trial was had, verdict and judgment rendered in favor of plaintiff for $ 6,500, to reverse which defendants appeal. Cone, subcontractor of the defendants, and employer of Peterson, is not complaining.

From the record we conclude: That all parties concerned in this case were, at the times involved, operating under our compensation statutes; that the owners of the property were desirous of excavating a certain lake, and, in pursuance of such purpose, let the contract to the defendants herein, who sublet a segregated part thereof to Cone; that Cone employed Peterson, then 19 years old, and under our statutes a minor, which minority, however, in no manner affects the questions here presented, other than as such minority would have bearing on the amount of plaintiff's recovery on behalf of Peterson's dependents; that, in the course of such excavation by Cone, through the actionable negligence of defendants and without fault on the part of Peterson or Cone, Peterson was killed while at work in the course of his employment, leaving as dependents his father, mother, and minor brothers and sisters; that plaintiff was duly appointed administrator, made application for compensation on behalf of such dependents, and, as Cone the employer refused and neglected to institute this action, it was lodged, as is usual in such cases, by such administrator; that recovery was had as hereinbefore stated, and the same is not reversibly excessive.

While there are several claimed errors urged, each thereof is answered by the foregoing except the following question, to this court novel: Are defendants "third" parties under the provisions of chapter 28, Comp. St. 1922, known as our compensation statutes?

The holdings of the courts of last resort of many different states are cited by the respective parties in their briefs, which show extended research and close analysis on the part of their attorneys. However, the compensation statutes of the respective states which form the basis of the opinions thus cited are so dissimilar, and especially from that of our own, as to render the conclusions reached in no manner controlling. Thus, we are left to glean the intent of our legislative body from the context of the act itself.

Section 3041, Comp. St. 1922 (chapter 28), provides: "Where a third person is liable to the employee or to the dependents for the injury or death, the employer shall be subrogated to the right of the employee or to the dependents against such third person, and the recovery by such employer shall not be limited to the amount payable as compensation to such employee or dependents, but such employer may recover...