62-4-38. Right of action when third person is liable--Election by employee--Offset of recovered damages.

If an injury for which compensation is payable under this title has been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employee may, at the employee's option, either claim compensation or proceed at law against such other person to recover damages or proceed against both the employer and such other person. However, in the event the injured employee recovers any like damages from such other person, the recovered damages shall be an offset against any workers' compensation which the employee would otherwise have been entitled to receive.

Source: SDC 1939, § 64.0301; SL 1964, ch 224; SL 1994, ch 398.