O'Donnell v. Baker Ice Machine Company

• Decision Date: 26 October 1925
• Docket Number: 23048
• Citation: 205 N.W. 561,114 Neb. 9
• Parties: STEPHEN O'DONNELL, APPELLANT, v. BAKER ICE MACHINE COMPANY ET AL., APPELLEES
• Court: Nebraska Supreme Court

205 N.W. 561

114 Neb. 9

STEPHEN O'DONNELL, APPELLANT, v. BAKER ICE MACHINE COMPANY ET AL., APPELLEES

No. 23048

Supreme Court of Nebraska

October 26, 1925

APPEAL from the district court for Douglas county: ARTHUR C WAKELEY, JUDGE. Affirmed.

AFFIRMED.

Bigelow & LaViolette, for appellant.

Kennedy Holland, DeLacy & McLaughlin, Brogan, Ellick & Raymond, Byron G. Burbank and Dressler & Neely, contra.

Heard before MORRISSEY, C. J., DEAN, DAY, GOOD, THOMPSON and EBERLY, JJ. GOOD, J., dissents.

OPINION

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 in the furtherance of such enterprise; that he entered upon such employment; that defendant Power Company owned and operated a system of electric lines in such city generally, and especially along an alley in such city, where, in the furtherance of such construction, defendant Steel Works and its employees, including plaintiff, were, with machinery and men, at a point upon such alley adjoining the premises where the building was being constructed; that while thus employed, and in the line of his duty, plaintiff received a severe electric shock which seriously injured and disabled him, to his great damage; that for such injury he sought and received, and was continuing to receive, compensation from the defendant Steel Works, as by the workmen's compensation act provided, and this without opposition from it or the other defendants, or either thereof.

The petition is rather voluminous, and it would not serve the purposes of this opinion to set it out at length. However, in it plaintiff nowhere alleges facts showing his right to maintain this action under section 18 of the workmen's compensation act, which is section 3041, Comp. St. 1922, in that he does not allege that his employer, the Steel Works, has refused or neglected to bring the action. This defect in the petition is challenged by the answers as follows:

"Plaintiff's petition does not state facts sufficient to constitute a cause of action. * * * If any one has a right to bring an action against this defendant by reason of said injury so sustained it is plaintiff's employer, the said Omaha Steel Works; that under and by virtue of the workmen's compensation act of the state of Nebraska the right to maintain said action is wholly and exclusively in the Omaha Steel Works; that said Omaha Steel Works has not refused to bring said action, nor has it assigned to any one its rights therein and thereto, but on the contrary said Omaha Steel Works has brought an action against this defendant in the district court of the United States for the district of Nebraska, Omaha division, to recover for the same identical injury for which damages are sought to be recovered in this action, and that by reason of the...