dissenting.
The judgment should be affirmed.
I.
On June 25, 1976, after the trial and following the jury’s assessment of fault and damages, the trial court conducted a hearing on post-judgment motions; the record includes a transcript of that proceeding. Counsel for Collier Carbon and Chemical there emphasized its contention that the judgment against it should be reduced, citing Liberty Mutual v. Adams, 91 Idaho 151, 417 P.2d 417 (1966). At the same time Collier Carbon and Chemical argued that although a negligent employer could not recover, a prohibition against a double recovery to the injured workman necessitates “that then the Court automatically reduces the amount of the Plaintiff’s recovery by the amount of compensation paid or to be paid.”
From the record of June 25, 1976, and from a reading of the transcript of the instructions conference, it appears that the jury was allowed to be informed and instructed as to some compensation benefits which Tucker had received, and apparently Collier Carbon acquiesced in the procedure. If it found fault in given instruction no. 24, the record is devoid of any request of Collier Carbon and Chemical for what it considered to be a more accurate instruction. In that situation it is not in a position to complain on appeal of the inadequacy of the court’s instruction, nor is it proper that the judgment be modified for any imperfection in that instruction.
Likewise its contention, made after verdict, that the court, not the jury, should assume the responsibility for modifying the judgment came too late.
All in all, Collier Carbon and Chemical fails to sustain its burden of showing the commission of prejudicial error on the part of the trial court. Collier Carbon and Chemical made no request that the jury itemize or segregate the various items of damages which were allowed and it cannot be said from the record presented that industrial insurance payments received by Tucker were not deducted by the jury in setting the total of damages recoverable.
II.
I do, however, agree with Collier Carbon and Chemical’s contention that any modification of the judgment, if proper, should be for the trial court. It can only be confusing to the jury to hear evidence of payment of industrial accident insurance benefits, and this case of all cases was complex enough without the interjection of extraneous matters. Lebak v. Nelson, 62 Idaho 96, 107 P.2d 1054 (1940) convinces me that although an employer-surety may bring the action against the third party whose negligence has allegedly caused the employee’s injury, he should do so much as a guardian ad litem or next friend brings an action, and the jury should not be given any concern whatever as to any proceedings under the Workmen’s Compensation Act. The jury should be concerned only with the usual issues of negligence, causation, and damages. Although I see nothing inherently wrong in the final paragraph of the Lebak opinion on *606page 120, 107 P.2d 1054, to my mind it would seem better that the jury be told nothing in that regard either. In short, all evidence of industrial accident insurance should better be kept out of the jury’s considerations. In a case such as the one at bench, when the jury has resolved the issues which are properly for a jury to resolve, if damages are awarded against the third-party defendant, or defendants, the trial court in entering judgment should at that time protect the rights of those having an interest in the judgment which, of course, would include a subrogated non-negligent employer-surety.1
If the employer has been found negligent, however, then, if proper under the decision-law of this jurisdiction, the amount of compensation benefits paid should be deducted from the verdict or judgment. This, however, is certainly a windfall to the third-party tortfeasor, and is a result this Court should not allow, as hereafter discussed.
III.
While I concur with the major holdings of the Court’s opinion, I am persuaded that this Court should not blindly accept the unfortunate “no double recovery” language of Witt as a basis for a new rule of law that an injured employee’s damages awarded against a third-party tortfeasor must in all instances be reduced by the amount of workmen’s compensation he has received. The Court did not do so in Liberty Mutual Insurance Company v. Adams, 91 Idaho 151, 417 P.2d 417 (1966), where Witt was first considered and applied, but on the contrary did allow the employee a “double recovery” —a loosely used term which is quite at odds with reality.
The sole issue in Liberty Mutual was whether a negligent employer, whose negligence along with that of a third party produced the injury, could obtain from an injured employee reimbursement of workmen’s compensation benefits paid, the employee having recovered from the third party in a negligence action for damages. The Court answered in the negative, holding that the negligent employer and its surety Liberty Mutual could not so recover. The so-called “double recovery” remained with the injured employee.
While it is correct that the Court in Liberty Mutual relied upon Witt for the proposition stated at page 156 of 91 Idaho, at page 422 of 417 P.2d,2 the Court did not at all adopt, approve, or even mention the further statement of Witt that a reduction of the employee’s damages awarded in a suit against the third-party tortfeasor must be made so as to avoid the allowance of a double recovery. Witt, 17 Cal.Rptr. at 378, 366 P.2d at 650. Moreover, on many readings of Witt I remain unable to find in that opinion anything whatever substantiating that statement. It was a mere unreasoned gratuity which the court apparently made in distinguishing the facts in Witt from the facts in Baugh v. Rogers, 24 Cal.2d 200, 148 P.2d 633 (1944), discussed in Witt, 17 Cal.Rptr. at 377-378, 366 P.2d at 649-50.
On page 377 of 17 Cal.Rptr. on page 649 of 366 P.2d Witt states that “North Carolina * * * holds that the third party is entitled to have the judgment against him reduced by the amount of compensation paid to the injured employee if he can prove that the concurrent negligence of the employer contributed to the injuries suffered by the employee.” The Witt opinion cites Essick v. City of Lexington, 233 N.C. 600, 65 S.E.2d 220 (1951) and Lovette v. Lloyd, 236 N.C. 663, 73 S.E.2d 886 (1953), which cases Justice Taylor thirteen years earlier saw as standing for the following proposition:
*607“In other words, where independent negligence on the part of the employer contributes to, or combines with, the negligence of the defendant to cause the injury, and where the employer and the third party defendant are not joint tort-feasors, but are severally liable as independent tort-feasors, and the negligence of the employer is not merely such as is imputed to him from negligence of the injured employee, the employer’s negligence is a pro tanto defense available to the third party.”
Brown v. Arrington Construction Co., 74 Idaho 338, 359, 262 P.2d 789, 803 (1953), (Taylor, J., dissenting).
A reading of the North Carolina cases convinces me that Justice Taylor correctly read those cases, the rationale of which is not in any way premised upon guarding against an employee obtaining a double recovery, but on the entirely different ground that it is the employer who can recoup nothing:
“It is contrary to the policy of the law for the employer, or his subrogee, the insurance carrier, to profit by the wrong of the employer. Brown v. Southern R. R., supra. [204 N.C. 668, 169 S.E. 419] For this reason, where the negligence of the third party and independent negligence on the part of the employer concur and proximately cause the injury to the employee, the third party may plead and prove the independent concurring negligence of the employer as a bar, pro tanto, to the recovery of the compensation paid or payable by the employer or the insurance carrier.”
Lovette, 73 S.E.2d at 891-892.
Recognition must be given to the fact that the statutory scheme since its enactment in 1917 gave the employer subrogation rights. This, however, has nothing to do with the question of whether an employee who obtains industrial accident insurance compensation and thereafter successfully maintains a negligence action against a third-party tortfeasor is somehow gaining a “double recovery.” It illustrates only a disposition on the part of the legislature to favor the employer (in reality the employer’s surety) by affording an opportunity to come out harmless — notwithstanding that the injured employee’s claim for compensation benefits may have been vigorously resisted. It becomes necessary to pause and reflect upon what had happened in 1917.
The enactment of Idaho’s Workmen’s Compensation Law took away the right of a workman in Idaho to seek damages for injuries occasioned by the negligence of his employer, and in return he was provided specific compensation, which until recently has been totally inadequate, and now is just barely adequate. The legislative scheme was to accomplish this through a “no-fault” insurance program, where the compensation awards would be made by insurance companies who would in turn accept premiums in return for assuming the risks of loss. The legislature, if it considered that the employee might receive from his employer some sum of money with which to purchase such workmen’s insurance and pay the premium, instead directed the employers to procure the insurance and pay the premium. The working man, having involuntarily lost his common law cause of action for injury, became the beneficiary of these policies of industrial accident insurance.3 The legislature perceived that it was not only wise that the working man not be entrusted with purchasing his own industrial compensation coverage, but that he should pay back what benefits he received if he was able to effect a recovery from a third-party tortfeasor. This payback was never said to be, however, on the theory that a working man should not be able to collect both insurance benefits and damages occasioned him by the third-party tortfeasor — but on the more *608readily acceptable and less obvious theory, well known in the insurance industry, that an insurance company which has paid benefits always wants to be subrogated to the employee’s rights to the extent of payments made. The Idaho legislature, as with others, so arranged it. In no instance did the legislatures of any of the states including Idaho consider that such subrogation provisions indiscriminately awarded subrogation rights to negligent as well as to non-negligent employers. All of which is to say that “double recovery” was not involved, and is still not involved. Double recovery is involved where a person injured collects damages twice. Where a person’s injury is caused by two or more joint and several tortfeasors it has ever been the law that a satisfied judgment against any of those responsible is a bar to a second action against the others. Damages, of course, are no part of the Workmen’s Compensation Law. Damages for tort are supposed to justly compensate the victim — make him whole as it were. It has never been pretended that specified compensation under the Workmen’s Compensation Law even approaches making the injured worker whole. In fact, the major underlying premise of the Workmen’s Compensation Law is to take from the working man his common law right to sue in tort for damages, and relegate him to the status of an insured under a policy which picks up his medical expenses, gives him a modest weekly stipend while he mends, and an equally modest specific award for the permanent injury. Such does not amount to damages. Payments received from industrial insurance should not be regarded any differently than payments which an injured workman receives from a health and accident policy which he has purchased full well knowing of the inadequacy of industrial insurance. Such payments are insurance benefits, and in no sense are they damages for tort.
In this particular action the issue is basically the same as it was in Liberty Mutual, other than for the alignment of parties. In Liberty Mutual it was the employer who sought reimbursement from the injured employee under the subrogation provisions of the Workmen’s Compensation Act. This Court held there that a negligent employer could not successfully assert the subrogation rights which the statute purported to give.4 The holding of that case would also require that the trial court deduct from a damage award in a negligence action against a third party any portion thereof upon which the employee’s employer had an enforceable claim under the subrogation provision. A non-negligent employer at the present time has an enforceable claim. A negligent employer does not. Hence the trial court here was not required to make any deduction from the jury’s damage award, the jury having found negligence on the part of Tucker’s employer. As was well pointed out by Justice McFadden in Liberty Mutual, the legal theory is that “[i]t is contrary to the policy of the law for the employer, or his subrogee, the insurance carrier, to profit by the wrong of the employer.” 91 Idaho at 156, 417 P.2d at 422, citing Lovette language as adopted in Witt.
Prior to the Court’s decision in Liberty Mutual, thus from 1917 until 1966, Idaho was in line with 48 other states which made full obeisance to the subrogation provisions notwithstanding the employer’s negligence. The Court in Liberty Mutual quoted the history detailing the reasons given for the past successes of negligent employers and their sureties:
“Most of these cases have reasoned that the employer should be able to get reimbursement from the third party tortfeasor despite his own concurrent negligence because the relevant Workmen’s Compensation Act did not expressly preclude his recovery. Others have reasoned that the employer’s rights against the *609third party are precisely the same as the rights of the employee; since the employee is not barred, neither is the employer.”
Liberty Mutual, 91 Idaho at 156, 417 P.2d at 422, quoting Witt.
In Liberty Mutual the negligent employer contended that this Court should accept Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U.S. 282, 72 S.Ct. 277, 96 L.Ed. 318 (1952) as controlling. The contention was rejected, 91 Idaho p. 156, 417 P.2d 417, but the Court noted in citing Ryan Stevedoring Co., Inc. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956), that the court there: “ . . . allowed reimbursement from a stevedoring company by the steamship company for damages the steamship company paid an injured employee of the stevedoring company even without a specific indemnity agreement.” Liberty Mutual, 91 Idaho at 157, 417 P.2d at 423.
Some understanding of the federal cases is found in Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 99 S.Ct. 2753, 61 L.Ed.2d 521 (1979), where the High Court explains that the stevedore-employer is by federal statute given either a lien or an assignment of the injured longshoreman’s rights against a third party by the operation of the administrative order granting compensation benefits. Such is similar to the subrogation provisions of our Idaho Act. As the dissent in Edmonds points out, the negligent employer (stevedore), on the employee’s winning a judgment against the ship owner, who “was 70% at fault, will recoup its statutory compensation payments out of the damages . . . and thus will go scot-free.” Id., 99 S.Ct. at 2764, (Black-mun, J., dissenting).
As I mention above, Liberty Mutual placed Idaho with a small minority, including California and North Carolina. Nevertheless, it is a sound position from which no retreat should be made. Our statutory law, interfaced with court-made law, does not allow a negligent employer and its surety to go scot-free. But that is not the end of it. It would be a travesty indeed to hold that the disqualification of the negligent employer should somehow inure to the benefit of the negligent third-party tortfeasor. I neither know of nor can divine any principle of law which requires that an injured employee must to the extent of payments received elsewhere suffer a reduction of the tort damages he has obtained against a negligent third-party tortfeasor. A question of double recovery it is not. While the tortfeasor, or tortfeasors, should not be required to pay damages twice for the same injury, he or they should not be given the benefit of payments to the injured person which he or they did not make. This is the collateral source doctrine.
In Lovette v. Lloyd, supra, from whence came the teachings of Witt, and, in turn, Liberty Mutual, it is spelled out that the statute requires that in an action against a third party the jury “is to declare the full amount of damages suffered by the employee on account of his injury, notwithstanding any award or payment of compensation to him under the provisions of the Workmen’s Compensation Act.” 5 Evidence of compensation paid, or to which the employee or his dependents may be entitled, is inadmissible. The trial court then enters a “judgment safeguarding the rights of any person entitled to share in the recovery, regardless of whether or not such person is a party to the action.” Lovette, 73 S.E.2d at 891.
A jury fixed the damages due the Tuckers. Tucker’s employer is disqualified from *610enforcing any claim to reimbursement and is not entitled to share in their judgment. In no way can it logically be said that Collier Carbon and Chemical is entitled to a reduction of the judgment on the basis of industrial insurance benefits of which they were not the source. It would be indeed an anomaly of our case law for the Court to now hold that Tucker’s damages must be reduced, whereas in Liberty Mutual the employee’s damage settlement was allowed to remain intact — thus making the result depend upon the slim thread of whether the negligence action went to judgment, or was settled.
Had the Tuckers settled their damage action for $325,800.00, Tucker’s negligent employer under the holding of Liberty Mutual could not recover from Tucker or from Collier Carbon and Chemical any compensation payments paid to Tucker.
In a converse situation, Shields v. Wyeth Laboratories, Inc., 95 Idaho 572, 513 P.2d 404 (1973), a settlement was made of the injured employee’s third party negligence claim. Thereafter the employee sought an industrial insurance award for his permanent disability, and was awarded total disability compensation. The commission’s view of I.C. § 72-204 was that the circumstances in that case did not require credit to the employer-surety to the extent of the damage settlement. This Court held otherwise. The significant language of the opinion as pertinent here was the passage quoted from Larson, Vol. 2, § 71.20, reading in part as to “double recovery”:
“ ‘It is equally elementary that the claimant should not be allowed to keep the entire amount both of his compensation award and of his common-law damage recovery. The obvious disposition of the matter is to give the employer so much of the negligence recovery as is necessary to reimburse him for his compensation outlay, and to give the employee the excess. This is fair to everyone concerned; the employer, who, in a fault sense, is neutral, comes out even; the third person pays exactly the damages he would normally pay, which is correct, since to reduce his burden because of the relation between the employer and the employee would be a windfall to him which he has done nothing to deserve; and the employee gets a fuller reimbursement for actual damages sustained than is possible under the compensation system alone.’ ”
Shields, 95 Idaho at 573-574, 513 P.2d at 405-406.
Of particular interest to the case at bench from the foregoing passage is the thought that disallowance of “double recovery” is “fair to everyone concerned” because the neutral-in-a-fault sense employer comes out even, and a reduction of the damages to the third party is a windfall which he has done nothing to deserve. In Idaho, of course, North Carolina and California — and apparently unlike the other 47 states — we do not recognize any such neutrality on the part of a negligent employer. A negligent employer may not recover either against his employee or against the third party.
Left to stand, however, and as it should be, is the philosophy there expressed that the third party should not receive a windfall which he has done nothing to deserve. All paths lead to the same conclusion. We have held that a negligent employer cannot recover either from his employee or the third party, and we have agreed that it is not conceptually right that the third party escape from paying damages. In that regard we are fortified by consideration of the collateral source doctrine. In respect to that we should be aware that the so-called “double recovery” doctrine is not in any way the same as the prohibition against a party recovering double damages. So considered, then, there is no reason for allowing Collier Carbon and Chemical a reduction in the Tuckers’ judgment. If it is thought to be inequitable that the injured employee have the benefit of this so-called double recovery, as against the third party having it, the language of Justice White in Edmonds v. Compagnie, supra, 99 S.Ct. at 2762 is appropriate: “Some inequity appears inevitable in the present statutory scheme, but we find nothing to indicate and should *611not presume that Congress intended to place the burden of the inequity on the longshoreman whom the Act seeks to protect.”
California has retreated substantially from the “no double recovery” rule with which that court saddled itself in Witt. It now has what might be called a “point-in-time” application, holding that where the employer is also negligent, the third-party tortfeasor may have a reduction of the judgment against him as to amount of temporary compensation paid prior to judgment, but that the employer and the surety may not by reason of the judgment have any credit as to compensation awards which are made after the judgment. Roe v. Workmen’s Compensation Appeals Board, 12 Cal.3d 884, 117 Cal.Rptr. 683, 528 P.2d 771 (1974). If there is any logic in that holding, it presently is difficult to find. The court there specifically concedes that “[t]he policy against double recovery primarily protects the third-party tortfeasor, not the employer." Id., 117 Cal.Rptr. at 687, 528 P.2d at 775.
Unanswered by the California court is why the third party is entitled to any such protection. As pointed out above, in Shields v. Wyeth Laboratories this Court recognized that no reason exists why the third party should be given a windfall which he has done nothing to deserve. The philosophy of the California court runs contra to ours. Primarily that court was trying to resolve a conflict between two of the intermediate courts on the proper application of Witt, and its “no double-recovery” rule coupled with its decision precluding a negligent employee to profit by his own wrong, Nelsen v. Workmen’s Compensation Appeals Board, 11 Cal.App.3d 472, 89 Cal.Rptr. 638 (1970) and Corley v. Workmen’s Compensation Appeals Board, 22 Cal. App.3d 447, 99 Cal.Rptr. 242 (1971). The latter was a split decision with Justice Kerrigan dissenting, and in essence casting his vote with the rationale of the Nelsen court.
The California Supreme Court went with the rationale of Nelsen, making the language of Justice Kerrigan highly appropriate to our problem with the Idaho case now at bench. Speaking of the now discredited majority opinion in Corley v. Workmen’s Compensation Board, he wrote:
“In a tortured analysis of Witt and its progeny, the majority has emasculated the rule barring monetary recovery by a negligent employer. The majority decision rests upon a single sentence in the landmark case to the effect that an employee may not be allowed double recovery. (Witt v. Jackson, 57 Cal.2d 57, 73, 17 Cal.Rptr. 369, 366 P.2d 641.) With its obsession against double recovery, the majority completely ignores the real thrust and import of Witt which was that under no circumstances should a concurrently negligent employer benefit by his own wrong. (Ibid., pp. 71-73, 17 Cal.Rptr. 369, 366 P.2d 641.) My view of the policy reasons underlying Witt finds support in the decision itself (Ibid., pp. 71, 72, 17 Cal.Rptr. 369, 377, 366 P.2d 641, 649), in that the Supreme Court invoked with approval language employed in two North Carolina cases to the effect the employer’s ‘hands ought not to have the blood of the dead or injured workman upon them . . .’ (Brown v. Southern Ry. Co., 204 N.C. 668, 169 S.E. 419) and ‘[I]t is contrary to the policy of the law for the employer, or his subrogee, the insurance carrier, to profit by the wrong of the employer.’ (Lovette v. Lloyd, 236 N.C. 663, 73 S.E.2d 886, 892).
“By closing their eyes to the crucial policy factor underlying Witt, and in allowing the negligent employer herein to retain the amount of the settlement derived from the third party tortfeasor and further granting him a credit in the amount of the employee’s net recovery, the majority have reached the appalling result that the employer derives a profit for an injury to the employee caused by the employer’s own negligence.
“Even assuming that the majority’s passionate concern with the possibility of a double recovery is somehow tenable, the simple fact of the matter is that ‘double recovery’ is a misnomer in terminology as well as a rarity in actuality, if it exists at *612all. Anyone experienced in workmen’s compensation law knows that the benefits awarded an injured workman are nominal, not compensatory. Similarly, personal injury lawyers recognize that damage awards seldom, if ever, fully compensate an injured employee for all detriment sustained by him.”
Corley, 99 Cal.Rptr. at 253 (Kerrigan, J., dissenting).
His closing language is particularly realistic and refreshing. To it should also be added that in many instances in the Idaho practice the working man has been required to pay an attorney one-third of the benefits which he ultimately realizes. When he pursues a third-party defendant, again and nearly in all instances he has to pay an attorney one-third of the recovery which he realizes. With that in mind any worry about the inequity of a working man’s “double recovery” quickly evaporates.
Finally, I mention that according to Larson’s work, it is only the courts of California, North Carolina, and Idaho which have made decision-law modifying the statutory law of those respective states so as to recognize a distinction between a non-negligent and negligent employer, the latter being precluded from profiting by his own wrong. Neither the courts nor the legislatures of other states have done so.
The issue which we decide today we must decide for ourselves; outside help is mainly confusing. For my part I have not seen any principle of law or justice which here should require a reduction of the judgment.
Also, I am not fully persuaded that the Court should adopt the reasoning and holding of Associated Construction & Engineering Company v. Workers’ Compensation Appeals Board, 22 Cal.3d 829, 150 Cal.Rptr. 888, 587 P.2d 684 (1978), a four-to-three decision of the California Supreme Court, wherein that court found it necessary to modify both Roe, supra, then in only its third year of infancy, and modify its then recent holding in Li v. Yellow Cab Co., 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226 (1975). Suggesting some caution, I mention that Justice Clark joined the majority, in fact made up a majority, only under the compulsion of Li, together with a 1978 trilogy of California cases set forth in 150 Cal.Rptr. at 899, 587 P.2d at 695; a full reading of the divergent opinions in each I comment to the bench and bar alike. Justice Jefferson in dissent deals extensively with the shortcomings of Associated, touching upon the very points with which I feel concern, foremost of which is a visitation upon the Industrial Accident Commission of an obligation to hear and determine issues of comparative negligence.
A clear-cut principle of law evolved from the Court’s unanimous holding in Liberty Mutual; by virtue of that decision the statutory law was modified to prevent a negligent employer from recovering back compensation payments whether it might attempt to do so from the injured employee or the negligent third party. Today the issue is presented in a slightly different context — with the negligent third party wanting the benefit of those payments which the negligent employer by virtue of Liberty Mutual may not regain. The answer should be exactly the same as it was in Liberty Mutual and as forecast by the Court’s language in the non-negligent employer case of Shields v. Wyeth. A so-called balancing of the equities does not require that the negligent third-party tortfeasor be given the windfall apples which have fallen from the tree of the negligent employer.
“It is of significance that, in the case at bench, we are not really talking about the rights and obligations between an employer and third party directly. On the contrary, we are deciding the rights and obligations between an employer’s insurance carrier and a third party’s insurance carrier. Each insurance company has been paid premiums for undertaking the risks involved. It is neither the employer nor the third party who suffers by virtue of any shifting between the insurance carriers of the responsibility for specified percentages of the damages suffered by the injured employee. Most employers are business entities. The cost of insur*613anee premiums is a cost of doing business which is passed on to the customers of the business. Most third-party tortfeasors are also business entities in which the cost of insurance premiums represent part of the cost of doing business that is paid for by the customers of these entities. Thus, the amount of damages to the injured employee that is paid by the insurance carriers for the employee and the third party is in reality financed by the customers of the employer and the third party. The costs of the awards to injured workers are spread, therefore, among a substantial segment of society.”
Associated Construction & Engineering Co. v. Workers’ Compensation Appeals Board, 22 Cal.3d 829, 150 Cal.Rptr. 888, 909, 587 P.2d 684, 705 (1978) (Jefferson, J., dissenting).
A majority vote of the Court membership is, of course, sufficient to change the law. Although Liberty Mutual v. Adams antedated my time on the Court, it was in my opinion a well written opinion, joined in by a unanimous Court, and soundly bottomed on the proposition that in this state no one should profit by his own wrong.
Unfortunately it was destined to a short life, and I am saddened to observe its demise. I more deeply regret that it is laid to rest without the comfort of any epitaph appropriately recognizing that it has now been overruled. Perhaps solace may be found that Idaho is now brought back into line with a clear majority of forty-eight other states which prefer to talk in terms of “double recovery” to the end that, where a so-called windfall is to be had, the worker in Idaho must give way either to the negligent employer or to the negligent third person.
Wherein the Court now indulges in fiction of “double recovery,” to the detriment of the working man, my vote would be for awarding that which is denied him to his employer — only for the simple reason that the employer is the only certain source of some award to the injured employee.
. On page 609, infra, is a short discussion of the procedure used in North Carolina from which state the Court, via Witt, adopted our rule that the non-negligent employer may not recover benefits paid.
. “ ‘Thus, whether an action is brought by the employer or the employee, the third party tortfeasor should be able to invoke the concurrent negligence of the employer to defeat its right to reimbursement, since, in either event, the action is brought for the benefit of the employer to the extent that compensation benefits have been paid to the employee.’ ” (my emphasis)
. As stated by the dissent in Edmonds v. Compagnie General Transatlantique, 443 U.S. 256, 280, 99 S.Ct. 2753, 2766, 61 L.Ed.2d 521 (1979) (Blackman, J., dissenting): “The award of less than full damages is the quid pro quo for the guarantee of recovery without regard to the employer’s fault.” As to “quid pro quo” generally in such situations, see Jones v. State Board of Medicine, 97 Idaho 859, 555 P.2d 399 (1976), cert. denied 431 U.S. 914, 97 S.Ct. 2173, 53 L.Ed.2d 223 (1977).
. Apparently it is still the law that a non-negligent employer may retrieve the benefits which he has paid to the injured employee. That we one day may see a constitutional challenge to such a provision is suggested to my mind by our holding in Jones v. State Board of Medicine, 97 Idaho 859, 555 P.2d 399 (1976), cert. denied 431 U.S. 914, 97 S.Ct. 2173, 53 L.Ed.2d 223 (1977).
. 73 S.E.2d at 891. In Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 99 S.Ct. 2753, 2761, 61 L.Ed.2d 521 (1979), the Supreme Court stated the same concept was applicable:
“Congress clearly contemplated that the employee be free to sue the third-party vessel, to prove negligence and causation on the vessel’s part, and to have the total damages set by the court or jury without regard to the benefits he has received or to which he may be entitled under the Act. Furthermore, under the traditional rule, the employee may recover from the ship the entire amount of the damages so determined.”
The only distinction is that in Idaho, since Liberty Mutual, the negligent employer may not have reimbursement; not against the employee, nor against the third party.