United Materials, Inc. v. Landreth, 40526
| Decision Date | 14 July 1976 |
| Docket Number | No. 40526,40526 |
| Citation | 244 N.W.2d 164,196 Neb. 525 |
| Parties | UNITED MATERIALS, INC., a corporation, Appellant, v. Albert L. LANDRETH, Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Under the Workmen's Compensation Act, an employer, to the extent of his liability for compensation, is subrogated to the rights of the employee and the dependents and may bring and prosecute an action against a third person for the latter's negligence where it resulted in personal injury to, but not in the death of, the employee.
2. An action against a wrongdoer for negligence resulting in the death of another person must be brought in the name of the latter's personal representative who is the administrator of decedent's estate.
3. The Workmen's Compensation Act does not create a new, or any, cause of action against a wrongdoer for negligently causing the death of another person, nor authorize the widow of a deceased workman nor the dependents nor the administrator nor the employer to bring or prosecute such an action.
4. A wrongful death action cannot be maintained under the provisions of sections 30--809 and 30--810, R.R.S.1943, unless commenced within 2 years of the death.
Michael V. Smith, of Smith & King, Gordon, Harry R. Henatsch, of Katskee & Henatsch, Omaha, for appellant.
Charles F. Fisher, of Fisher & Fisher, Chadron, for appellee.
Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ.
The plaintiff employer filed its petition on August 23, 1974. One cause of action sought to recover amounts paid and to be paid as death benefits under the Workmen's Compensation Act for the death of an employee on April 10, 1972, resulting from an automobile accident allegedly caused by the negligence of the defendant. The District Court sustained defendant's demurrer and dismissed the cause of action.
The parties have agreed to a case stated, duly certified by the trial court. On April 10, 1972, a truck owned by the plaintiff, United Materials, Inc., a corporation, and operated by Joseph L. Westman, an employee of the plaintiff, was involved in an accident with the defendant, Albert L. Landreth, the owner and operator of a pickup truck, on State Highway No. 87 in Sheridan County, Nebraska. As a result of that accident, Joseph L. Westman died. No administration of the estate of Joseph L. Westman was initiated in any court, and no personal representative was appointed to represent Elizabeth Westman, his surviving spouse, or any of his next of kin. No action for wrongful death was filed by any party at any time.
Under the provisions of the Nebraska Workmen's Compensation Act, plaintiff became obligated to, and did, pay benefits to the widow of Joseph L. Westman, which obligation continues throughout her lifetime.
The plaintiff's first cause of action was for the damages to its truck, and the second cause of action was for the death benefits paid and to be paid under the Nebraska Workmen's Compensation Act. The defendant demurred upon grounds inter alia that the petition did not state facts sufficient to constitute a cause of action, and that the plaintiff had no legal capacity to sue. The District Court sustained the demurrer as to the second cause of action, holding that the type of action which may be initiated by an employer pursuant to section 48--118, R.R.S.1943, for recovery of death benefits paid pursuant to the Workmen's Compensation Act by subrogation to the right of the deceased employee or his dependents, could not be maintained unless a personal representative of the deceased employee had first filed a wrongful death action within 2 years of the death of the deceased employee.
The plaintiff contends that section 48--118, R.R.S.1943, provides for a separate action by an employer against a third party for death benefits paid to the family of a deceased employee, and that such an action is not dependent upon a...
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...Casualty Co. v. J.T. Construction Co., 106 N.M. 195, 197, 740 P.2d 1179, 1181 (Ct.App.1987). See also United Materials, Inc. v. Landreth, 196 Neb. 525, 528-29, 244 N.W.2d 164, 166 (1976); Reliance Ins. Co. v. Richmond Mach. Co., 309 Pa.Super. 430, 437-38, 455 A.2d 686, 690 It is undisputed ......
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Miers v. Central Mine Equipment Co.
...of the widow or widower and next of kin of the decedent. Neb.Rev.Stat. § 30-810. Rhein, 314 N.W.2d at 22; United Materials, Inc. v. Landreth, 196 Neb. 525, 244 N.W.2d 164 (1976). The Wrongful Death Action includes several limitations relevant to this case. First, the decedent's death must h......
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Rhein v. Caterpillar Tractor Co.
...the date of the death of the decedent on behalf of anyone other than the widow, widower, or next of kin. See United Materials, Inc. v. Landreth, 196 Neb. 525, 244 N.W.2d 164 (1976). The survival statute, on the other hand, does not create a new cause of action but merely preserves whatever ......