It seems to me that the opinion overlooks the fact that plaintiff in prosecuting this action under the right of subrogation stands in the shoes of Mrs. Carlton. It is her cause of action only. Had she sued Reese, as she had the optional right to do under the statute, Reese could not have precluded her recovery by showing that plaintiff was guilty of any degree of negligence which proximately contributed to the accident. Such would be contributory negligence. That was what the court submitted to the jury. It is quite another thing for Reese to prove, and he would have a right to do so whether Mrs. Carlton or Thornton Bros. Company were plaintiff, that the conduct of plaintiff was the sole cause of the accident. If so, Reese was not liable to anyone, and Mrs. Carlton could not recover against him. *Page 12
Plaintiff is prosecuting here a cause of action which Mrs. Carlton claimed to have had against Reese.
The statutory subrogation serves "only to place the employer who pays the compensation in the first instance in the position of the employe in respect to the remedies held against the third person. The employer thereby acquires such rights and such rights only as were at the time vested in the employe; nothing more, and nothing less." Fidelity Cas. Co. v. St. Paul G. L. Co. 152 Minn. 197, 199, 188 N.W. 265, 266.
As to such cause of action, Reese should have no different rights in the action by plaintiff than he would have had in an action by Mrs. Carlton. The purpose of the statute giving subrogation is to authorize the employer to reimburse himself by an action against the party whose negligence caused the death. It seems to me the conclusion reached wholly destroys all right of subrogation granted by the statute. The employer is liable for compensation regardless of negligence. That liability is complete and absolute. It is in lieu of his liability for all other reasons. He is liable under the law regardless of negligence. If a third party is negligently the cause of the injury he should reimburse the employer. As a rule the third party is not an employe, but the rule must be the same whether he is or not. The holding in the majority opinion is that the employer is also liable for contributory negligence such as to bar a recovery from a joint wrongdoer. I am unable to grasp the reason or principle to sustain the conclusion reached, and I prefer to follow the authorities which support plaintiff's contention.
This question seems to have been involved in Carlson v. Minneapolis St. Ry. Co. 143 Minn. 129, 173 N.W. 405, wherein the trial court, Fish, J., held that contributory negligence on the part of the employer in suing the third person could not be shown as a defense. This court, however, did not reach the question because the jury found that the defendant was not negligent.
In City of Shreveport v. Southwestern G. E. Co.145 La. 680, 686, 82 So. 785, 787, a fireman was electrocuted while in the performance *Page 13 of his duty, and the city paid compensation to his widow, prosecuting an action under a contractual subrogation against the defendant, the owner of the wires involved, which set up the contributory negligence of the city. The court said:
"Other defenses are contributory negligence on the part of the plaintiff city, and estoppel because of the city's electrician not having condemned the location of this wire, but having, on the contrary, impliedly approved it by not objecting to it. Suffice it to say of these defenses that the city is not suing in her own right, but is simply enforcing the rights of the widow and children of the decedent."
In Milosevich v. Pacific Elec. Ry. Co. 68 Cal.App. 662, 669,230 P. 15, 18, referring to Otis Elev. Co. v. Miller Paine (C.C.A.) 240 F. 376, and Fidelity Cas. Co. v. Cedar Valley Elec. Co. 187 Iowa, 1014, 174 N.W. 709, the court said:
"These cases were decided upon the ground that the employer, upon making payment to the employe or his dependents, by the express terms of the statute became subrogated to the rights of the employe, and therefore, the employer, in his action against the negligent third person, stood in the shoes, so to speak, of the employe, and no defense would be available in such an action that could not be pleaded against the employe in case the action was being prosecuted by the latter."
The practical effect of the terms of each statute involved in all of the cases cited in the opinion herein referred to is to subrogate the employer to the rights of the employe upon the former's paying to the latter the compensation provided by the statute. Any distinction seems to be theoretical.
If the law is to be as indicated in the opinion, then I assume that when an employe makes his election under the statute to sue the third party instead of asking for the compensation to which he is entitled from the employer, the third party may interpose as one of his defenses the contributory negligence of the employer, and if he establishes such contributory negligence the employe cannot recover *Page 14 from the third party. The employe, having made such election, may be defeated by this defense, and it is then too late for him to claim and receive compensation. I do not believe that the legislature ever intended to subject the employe to this defense if he availed himself of the right to sue the third party.
The right of an employe or his beneficiaries to compensation exists by virtue of the provisions of the workmen's compensation act and does not sound in tort. The fact that there may be contribution between joint tortfeasors under some circumstances and not under other circumstances (D. M. N. Ry. Co. v. McCarthy, 183 Minn. 414, 236 N.W. 766) is not germane to the question now before us. But if plaintiff is barred by contributory negligence, it should at least have contribution. As said in Fidelity Cas. Co. v. Cedar Valley Elec. Co.187 Iowa, 1014, 1021, 174 N.W. 709, 711:
"The statute manifestly does not contemplate that both proceedings shall be available to the employe, or his beneficiaries, only when his injuries are due solely to the negligence of 'some other person than the employer,' but is equally applicable, should it be made to appear that his injuries were the result of the joint or concurrent negligence of the employer and some other person."
It seems to me that the authorities cited, including Graham v. City of Lincoln, 106 Neb. 305, 183 N.W. 569, and Otis Elev. Co. v. Miller Paine (C.C.A.) 240 F. 376, give the right construction to the statute as written. In Milosevich v. Pacific Elec. Ry. Co. 68 Cal.App. 662, 670, the court, referring to Cory Son, Ltd. v. France, Fenwick Co. [1911] 1 K. B. 114, and Canadian Pacific Ry. v. Alberta Clay Products, Ltd. 8 B. W. C. C. 645, said:
"The first of these two cases was decided under the Workmen's Compensation Act of England, and the second under the Canadian statute. The latter statute was taken from the English act, and there is no essential difference in the two statutes upon the subject under consideration. Neither the English nor Canadian act contains any provision whereby the employer is subrogated to the rights of the employe, nor do either of said acts provide, as does *Page 15 that of our own state, that in an action instituted by the employe against the negligent third person, the amount paid by the employer to the employe shall be inadmissible in evidence. [A provision not here important.] As these statutes differ so materially from our own statute [the statute then under consideration being in substance the same as ours], the decisions of the English and Canadian courts construing them are but slight assistance to us in endeavoring to ascertain the true intent and purpose of the legislation of our own state."
I am of the opinion that the submission of contributory negligence on the part of the plaintiff was reversible error.