Muncaster v. Graham Ice Cream Co. , 103 Neb. 379 ( 1919 )

Aldrich, J.

Plaintiff commenced an action against defendant to recover damages for personal injuries received growing out of the alleged negligence of the Graham Ice Cream Company. Plaintiff was an employee of the Baker Ice Machine Company, who had contracted to install some machinery for the Graham Ice Cream Company. The Ice Machine Company settled with the plaintiff under the provisions of the workmen’s compensation act, and refused to proceed further and to commence an action for damages against the Graham Ice Cream Company on behalf of the plaintiff. So plaintiff, as is his right under the statute, commenced an action against both defendants to recover damages.

Now the issue is: Can the plaintiff maintain this action under the provisions of section 3659, Rev. St. 1913? It is claimed that plaintiff suffered his personal injuries and damages growing out of the carelessness and negligence of the Graham lee Cream Company,- which is a third party to the provisions of the workmen’s compensation act. In other words, after having, received compensation under this act, does that bar plaintiff from commencing an independent action in damages against the Graham Ice Cream Company? Under the provisions of section 3659, the legislature intended, beyond question, to give to the injured employee a right of action where the injury complained of grew out of carelessness or negligence of a third party, and we hold that plaintiff has the light to maintain this cause of action under section 3659, and is hound under its provisions to strictly follow the procedure provided for, and, in case of recovery of damages,- the funds must be distributed in the matter of expense, etc., under the provisions of this act. Evidently the intent of the legislature was not to limit an employee to the recovery Only of the Workmen’s compensation act; but when, as a matter of justice, the employee was entitled to. recover a greater compensation than is provided for in the act, then he had the right to proceed under the provisions of section 3659, and to recover as much as a jury would warrant for his damages and injuries, and, after so recovering, to deduct therefrom the necessary expenses which his employer had been to in paying ont under the provisions of the act. In other words, the plain provisions of this act must be carefully and accurately followed in all of its 'provisions. It is valid, and the plaintiff is entitled to whatever provisions of compensation there may be growing out of this act. The Baker Ice Machine Company is simplysubrogated to the position of the plaintiff herein, and in case the Baker Ice Machine Company, after having settled with the employee under the workmen’s compensation act, refuses to go ahead any further, and washes its hands of the whole proceeding, then plaintiff should not be prevented from proceeding under the provisions of this act, as he has done in this case.

This case, therefore, is reversed and remanded for further proceedings.

Reversed.

Cornish, J., not sitting.