Dobesh v. Associated Asphalt Contractors, Inc.

• Decision Date: 10 May 1940
• Docket Number: 30741.
• Citation: 292 N.W. 59,138 Neb. 117
• Parties: DOBESH v. ASSOCIATED ASPHALT CONTRACTORS, INC., ET AL.
• Court: Nebraska Supreme Court

292 N.W. 59

138 Neb. 117

DOBESH v. ASSOCIATED ASPHALT CONTRACTORS, INC., ET AL.

No. 30741.

Supreme Court of Nebraska.

May 10, 1940

Syllabus by the Court.

1. The liability of a governmental agency of the state, under section 48-116, Comp. St.1929, where it fails to require a contractor to carry compensation insurance, as declared in Standish v. Larsen-Merryweather Co., 124 Neb. 197, 245 N.W. 606, reexamined and reaffirmed.

2. Where an injured workman has duly made claim for compensation against his employer, he is not required to make a separate claim against a third party to fix the latter's liability, under section 48-116, Comp. St.1929, for failing to require such contractor to carry compensation insurance.

Appeal from District Court, Custer County; Hostetler, Judge.

Proceeding under the Workmen's Compensation Act, Comp.St.1929, § 48-101 et seq., by Melvin Dobesh, a minor of the age of seventeen years, by Cleo Dobesh, his mother and next friend against the Associated Asphalt Contractors, Inc., employer and others. Presumably on discovering that the employer was without compensation insurance, the claimant filed another petition joining the Village of Ansley, Custer county, Neb and its insurance carrier, the Travelers Insurance Company, for failure to require claimant's employer to carry compensation insurance. The compensation court made an award in claimant's favor. On appeal to the district court, in the nature of an error proceeding, the award was affirmed, and the Village of Ansley, Custer county, Neb., and its insurance carrier, the Travelers Insurance Company, appeal.

Affirmed.

Evans & Lee, of Broken Bow, Chambers, Holland & Locke and T. J. Kiesselbach, all of Lincoln, for appellants.

Allan F. Black, of Broken Bow, and Perry VanPelt & Marti, of Lincoln, for appellee.

Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER, MESSMORE, and JOHNSEN, JJ.

JOHNSEN, Justice.

This appeal presents two questions: (1) Is a municipal corporation liable for compensation under section 48-116, Comp.St. 1929, to an employee of a contractor, where it has not required the contractor to carry compensation insurance? (2) If so, is the employee's right to compensation barred, unless he makes a claim against the municipal corporation within six months after the injury, where he has duly made claim against the contractor?

The controversy is between an employee of Associated Asphalt Contractors, Inc., and the village of Ansley. The village made a contract with plaintiff's employer to do some paving work, but failed to require it to carry compensation insurance. Plaintiff lost the sight of his right eye while he was engaged in the paving work. The accident occurred on June 16, 1937. He duly made claim for compensation against his employer, and, on November 3, 1937, instituted proceedings under the workmen's compensation law. On January 24, 1938, presumably upon discovering that his employer was without compensation insurance, he filed another petition joining the village and its compensation insurance carrier with the contractor as defendants. The com pensation court, first on a trial before an individual judge, and again on a rehearing before the full court, made an award in plaintiff's favor. On an appeal to the district court, in the nature of an error proceeding, the award was affirmed, and the village and its insurance carrier have appealed.

The liability of a state governmental agency under section 48-116, Comp.St.1929, where it fails to require a contractor to carry compensation insurance, has already been declared in Standish v. Larsen-Merryweather Co., 124 Neb. 197 245 N.W. 606.We are asked to reexamine that decision. It is pointed out that, while section 48-114, Comp.St.1929, makes the general provisions of the compensation law applicable to " the state and every governmental agency created by it," as well as " every person, firm or corporation, including any public service corporation, who is engaged in any trade, occupation, business, or profession," section 48-116 merely uses the language " any person, firm or corporation." It is argued that the state and its...