dissenting.
The court here reaches the conclusion that Kiewit must pay workmen’s compensation to plaintiff, although plaintiff was working for Wilson, and that Wilson is not liable for workmen’s compensation to plaintiff although he was Wilson’s employee.
I shall not consume space here to more than mention the established rule that the compensation act is to be liberally construed to carry out its beneficent purposes, and the rule of statutory construction which enjoins courts to avoid absurd results.
*66I shall not discuss the question as to whether or not the work being done here is “farm or ranch” labor. As I see it, in this instance, it is not a material consideration. It is, however, a matter of common knowledge that in large farm and ranch operations in this state the harvesting of crops is no longer a farm but is a commercial operation. There is respectable authority, cited to the court, that operations such as are here involved are not within the contemplation of the “farm or ranch” exceptions of the act.
Kiewit elected to provide and pay compensation to his employees. The court, however, does not quote that provision of section 48-106, R. R. S. 1943, which makes Kiewit liable to his employees. The provision is: “The procuring by any such employer of such a policy of insurance, which is in full force and effect at the time of an accident to any of his employees, shall be conclusive proof of such employer’s and his employees’ election to be bound by sections 48-109 to 48-147, to all intents and purposes as if they had not been specifically excluded by the terms of this section; * * (Emphasis supplied.) It is my view that when Kiewit took out the insurance he brought the “farm and ranch” work within the act “to all intents and purposes” as though “farm and ranch laborers” were never excluded from the act. The effect of the court’s decision is that Kiewit brought his employees within the act but left the work without the act. I do not agree that such was the legislative intent. The statute at no place separates the employee or employer from the work being done.
We are agreed that had plaintiff been employed by Kiewit when he was injured, Kiewit would have been liable for compensation under the act.
Kiewit, then, contracted with Wilson to do the work of putting up hay. Section 48-116, R. R. S. 1943, then, becomes applicable.
I shall not argue the question of what constitutes a “scheme, artifice or device.”
*67We have held: “The provisions of section 48-116, make a person who lets a contract liable to an employee of the contractor, unless he requires the contractor to procure insurance from a company licensed to make such insurance contracts in this state.” Standish v. LarsenMerryweather Co., 124 Neb. 197, 245 N. W. 606. See, also, Sherlock v. Sherlock, 112 Neb. 797, 201 N. W. 645; Jones v. Rossbach Coal Co., 130 Neb. 302, 264 N. W. 877; New Masonic Temple Assn. v. Globe Indemnity Co., 134 Neb. 731, 279 N. W. 475; Hiestand v. Ristau, 135 Neb. 881, 284 N. W. 756; Riggins v. Lincoln Tent & Awning Co., 143 Neb. 893, 11 N. W. 2d 810. The ultimate test of these cases is this: Did the owner or principal contractor require the contractor or subcontractor to procure insurance? If he did, he was not liable to the employee of the contractor or subcontractor. If he did not, then he was liable.
The court holds that under section 48-116, R. R. S. 1943, Kiewit is “included in the term ‘employer,’ ” and is liable to the plaintiff. I agree. The court holds that Wilson is not liable although the statute says that Kiewit and “the immediate employer (Wilson) shall be jointly and severally liable * *
The Legislature made an exception in section 48-106, R. R. S. 1943, but it made none in section 48-116, R. R. S. 1943. I think it patent that the Legislature intended that section 48-116, R. R. S. 1943, should apply to all situations where an owner subject to the act used the device of contracting out the work without requiring insurance.
The court reads out of the act the “jointly” liable-to-pay provision and reads an exception into the act which is not there.
Kiewit’s liability is determined as a matter of law by section 48-116, R. R. S. 1943. That same statute makes Wilson the immediate employer subject to the act and “jointly and severally liable” with Kiewit to pay the compensation. We have repeatedly so held. See, Sher*68lock v. Sherlock, supra; Standish v. Larsen-Merryweather Co., supra; New Masonic Temple Assn. v. Globe Indemnity Co., supra; Hiestand v. Ristau, supra.
It is to be remembered that we are here dealing with work brought within the compensation act by Kiewit. Section 48-116, R. R. S. 1943, applies to such work. It makes no exception to the joint and several liability of both parties. Obviously to do so would defeat the purpose of the act. The compensation act permits an owner or contractor to take exempted work within the act and secure the benefits as well as the liabilities of the act. It does not contemplate that the owner can thereafter take that work without the act by contracting it to an uninsured third party, and thereby escape responsibility to the workmen covered. The act in unmistakable terms makes both the statutory employer and the immediate employer jointly and severally liable.
The court overrules a “statement” in Dobesh v. Associated Asphalt Contractors, 138 Neb. 117, 292 N. W. 59. The court does not quote the “statement.” It is: “The liability of a third party, under section 48-116, Comp. St. 1929, for failing to require a contractor to carry compensation insurance is an imputed one, in the sense that none can exist against him, if none exists against the employer.”
When analyzed, that statement is in accord with my construction of the act. It is necessary to overrule it in order to relieve Wilson of liability. In the Dobesh case, claim for compensation had been given to the immediate employer within the time provided by the act. Claim within the time provided by the act had not been given to the village which had contracted with the immediate contractor. The question was whether or not the claim to the immediate employer was sufficient to meet the requirement of notice to the village. We there, in effect, applied the joint and several liability rule to the facts of that case and said that if liability did not exist against the’ immediate employer, then none existed *69against the “third party” (statutory employer). The converse of the rule is that if liability exists against the third party it also exists against the immediate employer. The two rules add up to joint and several liability of both the “employer” and the “immediate employer.”
I would direct the entry of a judgment against Kiewit and against Wilson, holding them jointly and severally liable to pay compensation to the plaintiff.