Tate

This proceeding involves the application of the principle of Witt v. Jackson, 57 Cal.2d 57 [ 17 Cal.Rptr. 369 , 366 P.2d 641 ], to a personal injury action which was at issue before that case was decided. A plaintiff, who has received compensation from his employer, has brought a common-law negligence action against three other parties. These defendants now desire to plead that the employer was also negligent, attempting thereby to bar such portion of the plaintiff’s recovery as would be applied to the benefit of the employer.

The facts before this court, as set forth in the petition and the return of the real party in interest, are not in substantial dispute.

On January 12, 1959, Nicholas T. Levato (plaintiff) brought an action in the superior court (respondent) against Wendell D. Tate (defendant Tate), Jack H. MacDonald Company and Jack H. MacDonald (collectively called defendants MacDonald) . That action is to recover damages for bodily injuries sustained by plaintiff on January 13, 1958, while working for a contractor named Ekins. Plaintiff’s job was to place insulation above a suspended ceiling in a building which was under construction. Plaintiff’s contention is that the…