O'Donnell v. Baker Ice Mach. Co.
| Citation | 205 N.W. 561,114 Neb. 9 |
| Decision Date | 26 October 1925 |
| Docket Number | No. 23048.,23048. |
| Parties | O'DONNELL v. BAKER ICE MACH. CO. ET AL. |
| Court | Supreme Court of Nebraska |
O'DONNELL
v.
BAKER ICE MACH. CO. ET AL.
No. 23048.
Supreme Court of Nebraska.
Oct. 26, 1925.
Section 18 of the Workmen's Compensation Act, being section 3041, Comp. St. 1922, construed, and held, that the right to bring an action against the third party rests with the employer until such time as the employee can allege and prove that his employer has neglected or refused to institute the action.
Appeal from District Court, Douglas County; Wakeley, Judge.
On rehearing. Former opinion withdrawn, and judgment of district court, dismissing action, affirmed.
For former opinion, see 203 N. W. 635.
Good, J., dissenting.
Bigelow & La Violette, of Omaha, for appellant.
Kennedy, Holland, De Lacy & McLaughlin, Brogan, Ellick & Raymond, Byron G. Burbank,
[205 N.W. 562]
and Dressler & Neely, all of Omaha, for appellee Omaha Steel Works.
Heard before MORRISSEY, C. J., and DEAN, DAY, GOOD, THOMPSON, and EBERLY, JJ.
THOMPSON, J.
This case was considered by us and opinion rendered. Motion for rehearing filed and hearing had thereon. The action is one brought in the district court for Douglas county against the answering defendants, jointly, to recover damages for an injury received by the plaintiff in the course of his employment while working for the defendant Omaha Steel Works, hereinafter called the Steel Works, which injury is alleged to have been caused by the joint negligence of the other defendants. At the close of plaintiff's case, motions were interposed by the answering defendants for an instructed verdict in their favor, or that the court discharge the jury and enter judgment in their behalf of dismissal of the action at plaintiff's costs, which motion, together with the challenge to the petition lodged in the respective answers, were considered by the court and sustained, and the case dismissed. Motion for a new trial overruled, and case appealed.
The undisputed facts as disclosed by the record are, in substance, that the Baker Ice Machine Company, hereinafter called the Machine Company, desiring to erect a building in the city of Omaha, entered into a contract with defendant Busk for the erection thereof, requiring Busk to take out workmen's compensation insurance; that Busk sublet a portion of the work to the Steel Works, requiring it to provide itself with such insurance, and thereafter the Steel Works employed plaintiff as a day laborer to assist it in the furtherance of such enterprise; that he entered...
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