Highway Engineering & Construction Co. v. Lowe ( 1933 )

OPINION

BAILEY, J.

I think that it is clear that the defendant has filed three pleas by reason of the language: “And for a further plea to plaintiff’s declaration.”

However, the second plea avers that the accident complained of occurred solely as a result of the negligence of plaintiff’s employee, and this is in substance a good plea. The demurrer to this plea should be overruled.

As to the third plea the statute in force here does not make the employer’s right of action against a third party one for indemnification merely, but provides that any sum secured in addition to the compensation paid by the employer shall go to the employee. For this reason the contributory negligence of the employer is not a defense to this action. See Otis Elevator Co. v. Miller, 240 Fed. 276. The demurrer to this plea therefore should be sustained.