OPINION OF THE COURT BY
BANKS, J.
(Parsons, J., dissenting.)
Plaintiff brought an action against the defendant for damages alleged to have been caused by the negligence of the defendant in operating an automobile truck, which negligence resulted in the death of Riikichi Yamada. The allegations of the complaint that are material to the present inquiry are in substance that Yamada was an employee of one Yoshida whom the plaintiff had insured against liability under the Workmen’s Compensation Law of Hawaii and that upon the death of Yamada a claim was filed with the industrial accident board by his widow, Kaoru Yamada, and an award duly made by the board against Yoshida in favor of the widow, for which award
the plaintiff is, under the terms of its contract of insurance, liable; that under the provisions of the Workmen’s Compensation Law the plaintiff is subrogated to the rights of the widow against the defendant arising out of the death of her husband. The defendent demurred to the complaint on several grounds, one of which is that the complaint fails to state a cause of action against this defendant.
The circuit judge before whom the case was pending reserved the following question to this court: “Should the demurrer be sustained?” Inasmuch as the general demurrer to which we have referred is sufficient to present the only question we deem it necessary to decide the other grounds need not be referred to.
The plaintiff contends that under section 2681, R. L. 1925 (commonly known as the death statute), Kaoru Yamada, being the widow of Riikichi Yamada, had a right of action against Masaru Araki, the defendant, arising out of the wrongful death of her husband and that under section 5 of the Workmen’s Compensation Law (R. L. 1925, Sec. 3608) it is subrogated to the widow’s rights under the death statute. Section 2681, as it existed at the time of Riikichi Yamada’s death and prior to its amendment in 1931, was as follows: “When the death of a person is caused by the wrongful act or neglect of another, any person who was wholly or partly dependent upon such decedent and who has no remedy for compensation under the provisions of chapter 209, may maintain an action for damages against the person causing the death, or if such person so liable was then employed by another person who is responsible for his conduct, then also against such employer. In every action under this section such damages may be given as under all the circumstances may be just. Such action must be commenced within one year after the injury which caused
the death.” Section 5 of the Workmen’s Compensation Law (Sec. 3608) is as follows: “When any injury for which compensation is payable under this chapter shall have 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 his option, either claim compensation under this chapter or obtain damages from or proceed at law against that other person to recover damages; and if compensation is claimed and awarded under this chapter any employer having paid the compensation or having become liable therefor shall be subrogated to the rights of the
injured employee
to recover against that person, provided, if the employer shall recover from that other person damages in excess of the compensation already paid or awarded to be paid under this chapter, then any such excess shall be paid to the
injured employee,, or other person entitled thereto,
less the'employer’s expenses and costs of action. The amount of compensation paid by the employer, or the amount of compensation to which the injured employee or his dependents is entitled, shall not be admissible in evidence in any action brought to recover damages.'’ (For the purpose of emphasis we have italicized portions of the sections.) This latter section is a part of the Workmen’s Compensation Law as it was enacted in 1915. It has remained, with one exception, in its present form ever since. In 1923 it was amended by adding the last sentence which relates solely to a matter of evidence.
Ever since the case of
Kake
v.
Horton,
2 Haw. 209, which was decided in 1860 and long before the death statute was enacted, it has been the settled law in this jurisdiction that a widow is, in a legal sense, a dependent of her husband and may maintain an action for his wrongful death. There is no controversy about this in
tlie case at bar. She could therefore sue for the wrongful death of her husband unless she belonged, under the death statute as it was originally enacted, to that class of dependents from which the right to sue was excluded. That the widow in the instant case does belong to that class seems obvious. The death statute as it stood when the present action was brought limited the right to sue for the wrongful death of a person to any dependent who did not have a remedy under the provisions of chapter 209, R. L. 1925, which is the Workmen’s Compensation Law. The widow in the instant case did have such a remedy and successfully pursued it. Her remedy therefore, by reason of the death statute, was limited to compensation under the Workmen’s Compensation Law, hence there was nothing to which the plaintiff in the instant case could be subrogated.
The plaintiff attempts to distinguish between what it terms a common-law right of action which was recognized in a widow in
Kake
v. Horton,
supra,
before the enactment of the death statute in 1923, and the statutory right of action that was given by the statute. Upon this supposed distinction the argument is made that the widow’s status as a dependent, being fixed by the common law, existed independently of the death statute and consequently her remedy was not affected by the limiting clause in that statute. The trouble with this argument is that the distinction attempted to be drawn by the plaintiff is not expressed either actually or inferentially in the death statute. The limitation upon the right to sue includes
all dependents
who have a remedy under the Workmen’s Compensation Law. If it had been the intention of the legislature to confine the limitation which it thus placed upon this right to those dependents who were not such under the common law it would certainly have given some intimation of its purpose. There
being no
such
intimation we are powerless to inject into tbe statute tbe qualification claimed by tbe plaintiff. In order to sustain the plaintiff’s contention the death statute would have to be reconstructed to read as follows: “When the death of a person is caused by the wrongful act or neglect of another, any person who is wholly or partly dependent upon such decedent may maintain an action for damages against the person causing his death, provided, however, that no dependent,
except one who has a right of action under the common
law, shall maintain the action herein provided for if he has a remedy for compensation under the provisions of chapter 209.” To make this change in the statute would be purely judicial legislation.
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OPINION OF THE COURT BY
BANKS, J.
(Parsons, J., dissenting.)
Plaintiff brought an action against the defendant for damages alleged to have been caused by the negligence of the defendant in operating an automobile truck, which negligence resulted in the death of Riikichi Yamada. The allegations of the complaint that are material to the present inquiry are in substance that Yamada was an employee of one Yoshida whom the plaintiff had insured against liability under the Workmen’s Compensation Law of Hawaii and that upon the death of Yamada a claim was filed with the industrial accident board by his widow, Kaoru Yamada, and an award duly made by the board against Yoshida in favor of the widow, for which award
the plaintiff is, under the terms of its contract of insurance, liable; that under the provisions of the Workmen’s Compensation Law the plaintiff is subrogated to the rights of the widow against the defendant arising out of the death of her husband. The defendent demurred to the complaint on several grounds, one of which is that the complaint fails to state a cause of action against this defendant.
The circuit judge before whom the case was pending reserved the following question to this court: “Should the demurrer be sustained?” Inasmuch as the general demurrer to which we have referred is sufficient to present the only question we deem it necessary to decide the other grounds need not be referred to.
The plaintiff contends that under section 2681, R. L. 1925 (commonly known as the death statute), Kaoru Yamada, being the widow of Riikichi Yamada, had a right of action against Masaru Araki, the defendant, arising out of the wrongful death of her husband and that under section 5 of the Workmen’s Compensation Law (R. L. 1925, Sec. 3608) it is subrogated to the widow’s rights under the death statute. Section 2681, as it existed at the time of Riikichi Yamada’s death and prior to its amendment in 1931, was as follows: “When the death of a person is caused by the wrongful act or neglect of another, any person who was wholly or partly dependent upon such decedent and who has no remedy for compensation under the provisions of chapter 209, may maintain an action for damages against the person causing the death, or if such person so liable was then employed by another person who is responsible for his conduct, then also against such employer. In every action under this section such damages may be given as under all the circumstances may be just. Such action must be commenced within one year after the injury which caused
the death.” Section 5 of the Workmen’s Compensation Law (Sec. 3608) is as follows: “When any injury for which compensation is payable under this chapter shall have 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 his option, either claim compensation under this chapter or obtain damages from or proceed at law against that other person to recover damages; and if compensation is claimed and awarded under this chapter any employer having paid the compensation or having become liable therefor shall be subrogated to the rights of the
injured employee
to recover against that person, provided, if the employer shall recover from that other person damages in excess of the compensation already paid or awarded to be paid under this chapter, then any such excess shall be paid to the
injured employee,, or other person entitled thereto,
less the'employer’s expenses and costs of action. The amount of compensation paid by the employer, or the amount of compensation to which the injured employee or his dependents is entitled, shall not be admissible in evidence in any action brought to recover damages.'’ (For the purpose of emphasis we have italicized portions of the sections.) This latter section is a part of the Workmen’s Compensation Law as it was enacted in 1915. It has remained, with one exception, in its present form ever since. In 1923 it was amended by adding the last sentence which relates solely to a matter of evidence.
Ever since the case of
Kake
v.
Horton,
2 Haw. 209, which was decided in 1860 and long before the death statute was enacted, it has been the settled law in this jurisdiction that a widow is, in a legal sense, a dependent of her husband and may maintain an action for his wrongful death. There is no controversy about this in
tlie case at bar. She could therefore sue for the wrongful death of her husband unless she belonged, under the death statute as it was originally enacted, to that class of dependents from which the right to sue was excluded. That the widow in the instant case does belong to that class seems obvious. The death statute as it stood when the present action was brought limited the right to sue for the wrongful death of a person to any dependent who did not have a remedy under the provisions of chapter 209, R. L. 1925, which is the Workmen’s Compensation Law. The widow in the instant case did have such a remedy and successfully pursued it. Her remedy therefore, by reason of the death statute, was limited to compensation under the Workmen’s Compensation Law, hence there was nothing to which the plaintiff in the instant case could be subrogated.
The plaintiff attempts to distinguish between what it terms a common-law right of action which was recognized in a widow in
Kake
v. Horton,
supra,
before the enactment of the death statute in 1923, and the statutory right of action that was given by the statute. Upon this supposed distinction the argument is made that the widow’s status as a dependent, being fixed by the common law, existed independently of the death statute and consequently her remedy was not affected by the limiting clause in that statute. The trouble with this argument is that the distinction attempted to be drawn by the plaintiff is not expressed either actually or inferentially in the death statute. The limitation upon the right to sue includes
all dependents
who have a remedy under the Workmen’s Compensation Law. If it had been the intention of the legislature to confine the limitation which it thus placed upon this right to those dependents who were not such under the common law it would certainly have given some intimation of its purpose. There
being no
such
intimation we are powerless to inject into tbe statute tbe qualification claimed by tbe plaintiff. In order to sustain the plaintiff’s contention the death statute would have to be reconstructed to read as follows: “When the death of a person is caused by the wrongful act or neglect of another, any person who is wholly or partly dependent upon such decedent may maintain an action for damages against the person causing his death, provided, however, that no dependent,
except one who has a right of action under the common
law, shall maintain the action herein provided for if he has a remedy for compensation under the provisions of chapter 209.” To make this change in the statute would be purely judicial legislation.
It cannot be said that the construction we have placed upon section 2681 leaves no field for the operation of the subrogation clause of section 5 of the Workmen’s Compensation Law and therefore nullifies that clause. Under section 5 if an employee receives injuries which do not result in death and has a remedy under the Workmen’s Compensation Law against his employer and also has a remedy against a third person whose negligence caused the injuries and chooses to pursue his remedy against the employer and compensation is awarded him, there is no doubt that under this section the employer would be subrogated to the rights of the employee against the person causing the injury. There is of course nothing in the death statute which would prevent subrogation under these circumstances.
The legislature of 1931 amended the death statute and omitted from it the provision in the former statute regarding dependents who have a remedy for compensation under the Workmen’s Compensation Law. So that all dependents, whether they have this remedy or not, may, under the present death statute, maintain the action there
in provided for. This removes the obstacle, so far as the death statute is concerned, to the right of an employer to be subrogated to the rights of a dependent under the Workmen’s Compensation Law. Whether section 3608 of this law gives this right of subrogation where the employee dies from the injuries he receives or whether the right is limited to injuries that do not result in death is another question, upon which we express no opinion.
O. D. Pratt (Smith, Warren, Stanley & Vitousek
on the brief) for plaintiff.
W. R. Ouderkirk
(also on the briefs) for defendant.
The question reserved is answered in the affirmative.