William P. Frazier, an employee of the United Railways Electric Company, died as the result of injuries arising out of and in the course of his employment, under circumstances said to have created a legal liability in the appellee in this case in respect to such death. Compensation was awarded under the Workmen's Compensation Law to his sister and *Page 133 only dependent, which the employer paid as a self insurer. Thereupon the employer brought an action under Code, art. 101, sec. 58, against the appellees, for its own benefit and that of the dependent, on the theory that a cause of action accrued to it or to the dependent sister to recover compensation for loss resulting to it and to her from the death of her brother, which appellants say was caused by the negligence of the appellee. That theory, which assumes that article 67 of the Code was amended by Code, art. 101, sec. 58, has been approved and adopted in the majority opinion of this court, a conclusion in which for the following reasons I am not able to concur:
The basis for the conclusion that the appellants are entitled to recover in this case apparently is that article 67 and article 101, section 58, Code, are in pari materia, and must be read as parts of a single statute, and that, when so read, article 101, section 58, Code, adds to the classes of persons entitled to invoke article 67 an additional class either in substitution for or in addition to those named in article 67, which class is not limited by relationship or consanguinity or necessarily by dependency, but is broad enough to include every person who might have taken as a distributee of the estate of a person whose death was caused by a wrongful act under circumstances which would have entitled the injured person to have maintained an action in respect thereof. The class of persons affected by article 67, Code, is limited to a husband, wife, parent, or child of the deceased, and the right of such person to recover under it is not confined to cases of actual dependency, but extends also to cases where the equitable plaintiff has suffered a pecuniary loss as the result of the death of the person in respect to which compensation is sought. Section 58, article 101, Code, provides that where death occurs under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof, his "personal representatives or dependents as hereinbefore defined" may proceed against such other person to recover damages. In Clough Molloy v. Shilling, 149 Md. 189,131 A. 343, it was held that the statute last quoted *Page 134 created no new liability, but gave to the dependents of the deceased employee a right of action by "reason of the liability then existing under Lord Campbell's Act." It was further stated that it "simply designates in what manner the liability theretofore existing, under the common law and Lord Campbell's Act, should be enforced, and changes the parties who might be benefited by such enforcement." But if article 101, section 58, is to have the meaning given it in this case, it does far more than that. Article 67 created a cause of action which had not theretofore existed at all. That cause of action was grounded, not in any damage an injured person may have suffered, but in the loss resulting to a defined class of persons from his death. Until Lord Campbell's Act there was no such thing as valuing human life in dollars and cents, and the principle embodied in the maxim actio personalis moritur cum persona related to the abatement of a cause of action which had once existed, not to the creation of a new cause of action. Dronenburg v. Harris,108 Md. 608, 71 A. 81; Stewart v. United Electric Light PowerCo., 104 Md. 332, 65 A. 49; 17 C.J. 1184 et seq.; 6 R.C.L. 724; Mich. Central R. Co. v. Vreeland, 227 U.S. 59, 33 S. Ct. 192, 57 L. Ed. 417.
So that when article 101, section 58, provides that where "injury or death" is caused under circumstances creating a legal liability in some person to pay damages in respect thereof, the "personal representatives or dependents" may proceed at law against such person to recover damages, it would seem to refer to a liability then existing at common law or under some statute. There was, of course, no such liability at common law, and the only statute under which it could have arisen would have been article 67, Code. Beneficiaries under article 101 include "posthumous children and adopted children, whether members of the deceased employee's household at the time of his accident or death or not, and shall also include step-children, illegitimate children and other children, if such step-children, illegitimate children and other children were members of the household of the decedent at the time of the accident or death and had received *Page 135 contributions toward their support from such deceased employee during any part of the six months immediately preceding the accident or death, * * * husband, wife, child, children or dependents of an employee in whom shall vest a right to receive payment under this article." Section 65. But the only beneficiaries under article 67 are a husband, wife, parent, or child. So that if article 101, section 58, is held to be taken asin pari materia with article 67 and as enlarging the class of persons to be benefited by that act, it would seem to follow either (1) that the class of persons to be benefited by article 67 is broadened to include not only all persons who suffered any pecuniary loss as a result of the death of any person under the circumstances named therein, whether they were related to him or not, but also representatives of his estate, or (2) to create for the benefit of persons benefited by the Workmen's Compensation Act, as the term "beneficiary" is therein defined, a cause of action denied to others.
So radical a departure from the law recognized in this state for over eighty years, and one which is likely to introduce into the administration of the law so much confusion, ought not, it seems to me, to be sanctioned unless expressly directed by the Legislature, or compelled by the inevitable and unavoidable implication of its language. But I find no such intention.
The Constitution of the State, article 3, section 29, provides that every law shall embrace but one subject and that shall be described in its title. But it would place a very severe strain upon that language to assume that a title which referred to workmen's compensation and described the act as making certain changes "in the manner of administering and the extent of the application of Workmen's Compensation" also repealed and re-enacted article 67, entitled "Negligence Causing Death." If the Legislature had intended making the extensive changes in article 67 indicated in the majority opinion, it might be assumed that some indication of that intention would have been given in the title of the act. Since it did not do that, it should rather be inferred that it was not *Page 136 its intention that chapter 303 of the Acts of 1922 was to affect article 67 at all, but it only intended to give to persons entitled to or accepting compensation under article 101 the same right to the benefit of article 67 which they would have had if they had not been entitled to or had not accepted such compensation, and no other or different rights. In other words, if they were within the class benefited by article 67, they were given the right denied them by the original Workmen's Compensation Act of enforcing the benefit; if they were not within that class, they acquired no such right under article 101. There is, it appears to me, no reason to believe that the Legislature intended to do any more than that. It may be that humanity and equity dictate that a tort-feasor should be liable to any person for loss actually suffered through the death of another where such death occurred through the wrongful act of the tort-feasor. But whether that should be the law is for the Legislature and not the courts to say, and until the Legislature does speak, the common law controls.
Nor am I in accord with the view that the two statutes are inpari materia. An essential element in the definition of that phrase is that the statutes shall relate to the same subject-matter. Here article 67 creates a cause of action in certain relatives of one killed by a wrongful act to recover damages in respect thereof, while article 101 relates to the right of persons, engaged in hazardous occupations, to assert the rights created by article 67, which was denied by earlier legislation. The one created a right, the other removed a disability. The one is substantive, the other adjective and incidental.
It is suggested that the statute creates the cause of action in section 1, article 67, Code, and that section 2, Id., does no more than direct the distribution of a fund collectible under section 1. But that, it seems, ignores the history and purpose of the act, and converts it from compensatory into punitive legislation. Its purpose was not to impose a penalty upon tort-feasors for a wrongful act resulting in death in *Page 137 every case, but to give to persons who stood in a certain specified relationship to the injured person the right to recover compensation for the loss suffered by them as a result of his death. The liability mentioned in the act did not arise unless there were in existence persons within the class defined in section 2. Independently of them it did not exist. It related not to the devolution or survival of an existing right, but to the creation of a new right in the designated beneficiaries. When a right is given by the act to the personal representatives of one injured to recover damages against a tort-feasor whose wrongful act caused his death, obviously it refers to the right of such representatives to recover in cases such as Stewart v. UnitedElec. Lt. Pow. Co., supra, where the right to recover damages had accrued to the injured person in his life time, and it created no new cause of action, but only gave to the personal representatives of one whose dependents had accepted compensation under article 101, Code, the same rights they would have had if he had not been affected by that act. But if section 58, article 101, is to be transplanted bodily into article 67, section 2, and the class of persons who may enforce the liability created by that article enlarged so as to include personal representatives, it might well be held that the damages recoverable would be such as the injured employee might have recovered had he lived, and, if there were no dependents, would go to swell the assets of his estate. There is no reason why one whose wrongful act has resulted in injury or death to another should not be liable in damages in respect thereof, but at common law no act, however tortious, can be the base of a civil action unless to some extent and in some way it injures another. It has been held that at common law no one could recover for the death of another, because the value of human life may not be measured. 8 R.C.L. 719. The fallacy of that reason is of course obvious today, when as a result of contract and statute human life is constantly valued, and the promptings of common sense and humanity have by a variety of statutes so modified the common law doctrine that *Page 138 those who stood in such a relationship to an injured person that by the laws of nature or civil conventions they were entitled to look to him for support may recover against a tort-feasor pecuniary loss suffered as a result of his death, where it resulted from the wrongful act of the defendant. But the extension of that liability is for the Legislature and not for the courts, and until the Legislature speaks, in this state the rules and principles of the common law remain unchanged. It seems to me that the Legislature did not intend to enlarge the class of persons entitled to the benefit of article 67, but merely meant to give to persons claiming compensation under article 101, as the result of the death of one in respect to which the claim was filed, the same right to recover, for pecuniary loss which they had suffered as a result of the death, against a tort-feasor whose wrongful act had caused the death, as they would have had had no such claim been made. For that reason I am not able to concur in the opinion which announces a different principle.