I am unable to agree with certain implications contained in Division II of the opinion herein and respectfully dissent therefrom.
The word "implications" is used advisedly. The opinion holds that subparagraph 3 of section 1382, Code, 1939, does not warrant the commissioner's decision. The result is justified by Division I of the opinion. Subparagraph 3 of section 1382 applies to a settlement between an employer or an employee and such third party who is liable for the injury. Division I of the opinion correctly points out that there is no evidence to support a finding that Dr. Bacon was legally liable for the death of *Page 394 appellee's husband. Accordingly, the settlement is not one coming within the contemplation of the statute. However, Division II indicates that the statute is not applicable to a settlement between the administrator of a deceased employee and a third party who is liable for the injury, on the theory that subparagraph 4 of section 1421, Code, 1939, is not to be given effect wherein it provides that any reference to a workman or employee who has been injured shall, when such workman or employee is dead, include his dependents or his legal representatives. I disagree with this implication.
Section 1382, Code, 1939, is made expressly applicable to litigation arising out of a death case. The right of the employer to subrogation is expressly recognized in such litigation. If that right exists in the event of litigation, it seems clear that it should also exist in the event of a settlement of litigation. The industrial commissioner so held. Insofar as he held, as an abstract proposition of law, that subparagraph 3 of section 1382 applies to death cases, he was carrying out the express language of subparagraph 4 of section 1421. The implication of the opinion that such a conclusion of law is erroneous appears to me to be wholly unwarranted and contrary to the express language of chapter 70 of the Code.