concurring.
I concur for a different reason. My view is that plaintiff’s right of action, if any, against the Graham Ice Cream Company, a third person with whom he had no contractual relations, is not given by the workmen’s compensation act, and that section 3659, Rev. St., 1913, allowing the subrogation of the employer, is merely to provide for the reimbursement of the employer for payments made by him to the injured person, under the provisions of that act.
If the employer, after paying the amount of the statutory compensation, refuses or neglects to bring his action against the negligent third party, this does not deprive the injured person of his- right of action against the wrongdoer, but he should, as in this action, make his employer and the alleged wrongdoer both parties to the action. In such case, he is entitled to recover his damages from the third party, less the compensation *382paid, as provided in section 3659, and the employer, if he asks tor the relief, will be entitled to a judgment equal to the amount of the compensation he has paid. Smale v. Wrought Washer Mfg. Co., 160 Wis. 331; Otis Elevator Co. v. Miller & Paine, 240 Fed. 376.
This section should be construed, not to defeat the injured person, but to do justice between him and his employer.
Sedgwick, J., agrees with this concurrence.