dissenting. R.C. 4123.82 and its predecessor, G.C. 1465-101, have espoused much confused thought and pronouncements by this and other courts. In essence these statutes have pronounced the legislative determination of public policy by voiding all contracts and agreements “which undertake to indemnify or insure an employer against loss or liability for payment of compensation to workmen.” This is a valid expression of public policy with which I basically agree. The continued alertness and concern for the safety of employees’ working conditions should never be lessened by the management decision to contract for private insurance coverage to provide indemnification for expenses of injured workers. But that is not the proper rationale for the determination of the issue before us.
The issue presented is not one involving the internal working conditions under the employer’s control that have occasioned an injury of the employee, the expenses of which the employer is attempting to set off. Rather, the issue is whether the statute is a bar to an employer’s right to recover from a third party, who has injured the employer’s employee, the damages suffered by the employer in the form of increased workers’ compensation expense mandated by state law. For a state fund employer the damages are in terms of increased workers’ compensation premiums paid to the Bureau of Workers’ Compensation. For a self-insured employer the damages are in terms of the direct payment of compensation and medical benefits paid to and on behalf of the employee.
In the context of the sections of Ohio workers’ compensation law which hold the employer liable without fault for the injuries of his employees received within the scope of their employment, I conclude that there is a legal duty extending from third-party tortfeasors to an employer whose employees are injured by the negligence of such third party.
Whether the third party’s conduct is analyzed in terms of duty or in terms of proximate cause, the result is the same. The third party owed a duty of care not to add an expense of business operation to an Ohio employer mandated to operate under the workers’ compensation laws. I do not espouse a totally unique theory in this regard, in that at common law it may be found that an employer may have a recovery for injuries which, while done to his employee, actually resulted in expense to the employer. “Under the rule of the common law, an employer may maintain against the wrongdoer an action to recover damages on account of loss which he may have sustained by reason of an injury to his employee.” 53 American Jurisprudence (1970) 407, Master and Servant, Section 402. See, also, United States v. Standard Oil Co. *383(1947), 332 U.S. 301, 312; Annotation (1958), 57 A.L.R. 2d 802, at 804.
There is authority for the view that the employer may recover for all of his damages. Inland Revenue Commissioners v. Hambrook (1956), 2 Q.B. 641, 3 All Eng. 338, 57 A.L.R. 2d 790; Annotation, supra, at 815-817; Jones v. Waterman S.S. Corp. (C.A. 3,1946), 155 F. 2d 992. Thus, the appropriate question is not whether such duty can be found, but to what extent it may reasonably be applied. As I have pointed out, R.C. 4123.82 tends to maintain the safety •vigilance of Ohio employers, and also protects the State Insurance Fund by prohibiting employers from obtaining insurance policies in competition with such fund. However, the statute nowhere addresses any aspect of the question before this court of whether an employer is barred from suing third parties who injure, by their negligence, the employer’s employee. The earlier cases discussed within the majority opinion, which relied upon this statute as a basis for resolving this and other related questions, were mistaken in so doing and have thereby introduced elements of uncertainty into this area of the law, particularly in that their holdings distinguish an employer’s recovery upon a tort theory from recovery under a theory of breach of a contractual duty by a third party. In these types of actions for recovery of damages suffered by an employer for injuries received by his employee, there is no logical or rational distinction that can be made between the two theories of recovery.
This court has never been troubled in finding a duty in situations outside workers’ compensation considerations. We have taken for granted on innumerable occasions that the third party may be sued by a spouse for those injuries, consequentially incurred, which such third party causes when he negligently injures the other spouse. The spouse who suffers the secondary injuries is permitted to bring the action in his or her own name, and to sue for damages which he or she alone incurs as a result of the injury to the other spouse. The duty extending from the third party to the spouse suffering the consequential injuries is, as in the present case, premised upon the relationship between the directly injured spouse and the consequently injured spouse, and upon the age-old recognition that to injure the one is to injure the other. Furthermore, the same rationale and principle are regularly applied to allow parents of injured children to sue the negligent third party. The parent may likewise sue in his own name and for injuries which he alone incurs as a consequence of those injuries directly suffered by the child.
So too in the present case, for a third party to injure the employee of another, while the employee is acting within the scope of his employment, such third party will, under the workers’ compensation statute, create consequential damages to the employer. Their legal relationship as employer and employee requires that when the former is injured, the latter must incur either an increase in workers’ compensation premiums or an outright payment of benefits. It is not only foreseeable, but a virtual certainty, that one who injures the employee of this employer will also cause damage to such an employer. Clearly a duty exists and the tortfeasor must take his plaintiff as he finds him.
Finally, and perhaps most anomalous of all, is that we have never shown the slightest hesitation in applying the principle that an employer is liable, under the doctrine of respondeat superior, to third persons for acts of his employee, whether the employer *384directed the activity or not. This doctrine has been embraced to justify an extension of a duty to the employer for the acts of his servant no matter what, so long as the act or omission occurred within the scope of the employment relationship, and this even if the employee is mentally incapacitated. Central of Georgia Ry. Co. v. Hall (1905), 124 Ga. 322, 52 S.E. 679. The duty derives, by various rationales, from the fact that, while the employee is so employed, there is but one authority in the matter, that being the employer’s; and whatever act which the employee does is considered the act of the employer, even though the latter may be faultless. There should thus be little trepidation in finding a duty owed to the employer who is consequently injured when a third party negligently injures his employee.
My conclusions as expressed in this dissent are of course limited to the employer-employee situation encompassed within the workers’ compensation law of Ohio, and the duty imposed under such Act upon employers to compensate the injuries received by their employees who are engaged in their employment activities.
A further point must be made as an underlying legal principle within my dissent, which is that the third-party tortfeasor may not be held liable more than once for the same tort. If an action is brought first by an employer for expenses relating to injuries to his employee, setoff of such recovered amounts must be made in a later action brought by the employee. If an action is brought first by the employee, any amounts received from the State Insurance Fund by the employee for such injuries must be set off from any judgment rendered later against the third-party tortféasor.
Accordingly, I would hold that a dufy exists under the circumstances set forth in the cases before us, and respectfully dissent from this majority opinion.
Wright, J., concurs in the foregoing dissenting opinion.