Sloan v. Harrington
| Decision Date | 21 February 1929 |
| Docket Number | 26719 |
| Citation | 223 N.W. 663,117 Neb. 809 |
| Parties | JAMES SLOAN, APPELLEE, v. J. S. HARRINGTON, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: ALEXANDER C TROUP, JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
Under the record in this case, the surrender, covered by our compensation statutes, of the right to prosecute an action at common law for damages arising from the actionable negligence of another applies solely to the Keystone Company and its injured employee Sloan.
The term " third person," as used in section 3041 Comp. St. 1922, and applied herein, signifies persons other than such Keystone Company and its injured employee.
In a personal injury action, it is permissible, under the rule promulgated in Jessup v. Davis, 115 Neb. 1, 211 N.W. 190, 56 A.L.R. 1403, for the plaintiff to inquire of the defendant on cross-examination as to whether or not he carries liability insurance, and whether he personally employed the attorneys for the defense.
The purpose of such inquiries is to inform the court, jury, attorneys, and litigants as to the true status and actual interest of the parties concerned as well as those participating in the litigation.
Further, if requested so to do, the court should, by an appropriate instruction, limit the jury's consideration of such elicited testimony to the purpose permitting its reception in evidence.
Boyd v. Humphreys, 117 Neb. 799, 223 N.W. 658, Peterson v. Humphreys, 117 Neb. 804, 223 N.W. 660, and Matthews v. Crancer Co., 117 Neb. 805, 223 N.W. 661, approved and followed.
The question of whether or not the term " third person" can be applied to employees of an immediate employer, as between themselves, is left undetermined in this case, as it was in each of the cases noted in the preceding paragraph.
Appeal from District Court, Douglas County; Troup, Judge.
Action by James Sloan against J. S. Harrington and others. Judgment for plaintiff was reduced on the hearing of motion for new trial, and defendants appeal, and plaintiff cross-appeals. Affirmed.
Dressler & Neely and Amos Henely, for appellant.
Kennedy, Holland, DeLacy & McLaughlin, contra.
Heard before GOSS, C. J., DEAN, GOOD, THOMPSON and EBERLY, JJ., and REDICK, District Judge.
In this action a judgment was recovered by appellee Sloan against appellant Harrington for the sum of $ 15,000, which on hearing of motion for new trial was, by the court, reduced to $ 10,000, to reverse which judgment Harrington appeals, and as to the reduction of the amount of recovery from $ 15,000 to $ 10,000 Sloan files a cross-appeal.
The city of Omaha was desirous of constructing a storm sewer, and in pursuance thereof let the contract for such construction to the Keystone Pipe & Construction Company, hereinafter called the Keystone Company, and at the same time required it to take out compensation insurance as by the compensation statutes of this state provided. The Keystone Company then sublet a segregated part of the enterprise to Harrington, and as a part of such subletting required him to provide himself with compensation insurance. In furtherance of that part of the enterprise retained by the original contractor, it employed Sloan, appellee, to lay pipe in trenches excavated and conditioned by Harrington and his employees. As Sloan, in the course of his employment, was so placing a section of pipe, through the negligence of Harrington and his employees, and without fault on the part of the Keystone Company or Sloan, the latter was seriously and permanently injured to his great damage.
It will be seen that all parties involved herein were, so far as their respective contracts are concerned, proceeding under our compensation statutes. The petition is in usual form in actions brought by an employee damaged as charged in this case, by a "third person" as that term is used in section 3041, Comp. St. 1922. Sloan, in his petition, claims in substance that Harrington is, as to him, such a "third person," and thus liable to him at common law for all the damage caused by the negligence of Harrington personally, or by and through his employees. Thus, there is this question, among others, presented: Is Harrington a "third person" within the meaning of section 3041 aforesaid as to Sloan, and indirectly as to the Keystone Company?
It is the contention of Harrington that, as the...
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