Dodds

Plaintiff appeals from certain orders made in ancillary proceedings in his malpractice action and affecting the distribution of the proceeds of recovery by (1) granting the claimant “expenditures for compensation” and (2) denying plaintiff an allowance for attorney fees. Plaintiff argues: (1) the improper scope of the lien award and (2) the inequity of the disallowance of the attorney fee. His position is well taken as to the first point but not as to the second.

While employed as a workman in the yards of the California Shipbuilding Corporation, plaintiff “suffered a bruise and laceration ... of Ms middle, left finger . . . when a steel beam fell upon it.” In the course of medical treatment for the injury, plaintiff sustained X-ray burns through the negligence of the attending physicians, and the ultimate result was amputation of the finger. Plaintiff brought an action against *498 the physicians for malpractice and included as defendants his employer and its insurance carrier, Liberty Mutual Insurance Company. Previously plaintiff had applied to the Industrial Accident Commission for compensation benefits by reason of his industrial injury and on November 28, 1944, an award was…

I dissent.

I do not agree with that portion of the majority opinion which holds that the injured employee is not entitled to have his employer (when the word “employer” is used herein it indicates the employer’s insurance carrier) bear a share of the expenses (including attorney’s fees) incurred in the employee’s action for damages where he recovers from the third party tort feasor expenditures made by the employer as the result of injuries suffered by such employee by reason of the negligence of such third party tort feasor, or the holding that if the employer sues the third party tort feasor on behalf of himself and such employee he may have his attorney’s fees and expenses paid out of the judgment recovered against such third party. We have here a simple case where an employee has suffered an injury compensable under the workmen’s compensation law, but the injury was due to the negligence of a third party tort feasor. In such a case the employee may recover from the third person but the employer is entitled to a lien against any judgment so recovered as reimbursement for amounts paid as compensation and medical and hospital treatment to or on behalf of the injured…

Leonard, Hanna & Brophy as Amicus Curi', on behalf of Respondent.

Plaintiff appeals from certain orders made in ancillary proceedings in his malpractice action and affecting the distribution of the proceeds of recovery by (1) granting the claimant "expenditures for compensation" and (2) denying plaintiff an allowance for attorney fees. Plaintiff argues: (1) the improper scope of the lien award and (2) the inequity of the disallowance of the attorney fee. His position is well taken as to the first point but not as to the second.

While employed as a workman in the yards of the California Shipbuilding Corporation, plaintiff "suffered a bruise and laceration ... of his middle, left finger ... when a steel beam fell upon it." In the course of medical treatment for the injury, plaintiff sustained X-ray burns through the negligence of the attending physicians, and the ultimate result was amputation of the finger. Plaintiff brought an action against the physicians for malpractice and included as defendants his employer and its insurance carrier, Liberty Mutual Insurance Company. Previously plaintiff had applied to the Industrial Accident Commission for compensation benefits…