(dissenting): I concur in that part of the opinion of the majority of the court which holds that the Death Act is not affected by the Compensation Act, where dependents of a deceased employee do not accept compensation from the employer.
I regret, however, that I am unable to concur in that part of it which holds that an employer, who has paid compensation to dependents for the death of an employee, cannot recover in the name of the widow of such employee against a third person whose negligence caused the employee’s death.
*305The solution of this question depends upon the construction of the Workmen’s Compensation Act {Chap. 233, vol. 20, Laws of Del.). The important sections to consider are 131 and 139.
Section 131 is quoted in its entirety in the majority opinion, and I will, therefore, quote merely what I deem to be the material parts of it.
The language of this section is somewhat ambiguous. It provides that:
“Whenever an injury for which compensation is payable, * * * 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 * * * or obtain damages from, or proceed at law against such other person to recover damages, but he shall not proceed against both.”
The subrogation clause then follows. It provides, in substance, that if compensation is awarded, the employer shall be subrogated to the—
"rights of the injured employee, or of his dependents, to recover damages against such third person, and may recover in his own name or that of the injured employee from the other person in whom legal liability for damages exists, the indemnity paid or payable to the injured employee.”
It further provides that any amount recovered by the employer from such third person, in excess of the compensation paid or payable by the employer, shall, when collected, be paid to the “employee or the dependents.”
The majority opinion says, with respect to these provisions of Section 131:
“Taking Section 131 in its entirety, it would, therefore, appear that, notwithstanding its first clause seems to refer to rights of action which have no connection with the death statute, the later provisions, which deal with the subrogation right of the employer and with the payment to dependents of the excess above compensation recovered by the employer, must contemplate the right or rights of action created by the Death Act. Unless the Death Act’s liability is recognized and contemplated by Section 131, we are at a loss to discover any cause of action to which the word ‘dependents,’ found in this section, can be made to relate.”
The majority of the court, therefore, in effect hold:
*306(1) That though the first part of section 131, in express terms, merely refers to the liability of negligent third persons to an “injured” employee, and provides that the injured employee may, at his option, either claim compensation, or proceed at law to recover damages from the negligent third person, it is clear from the language of the section read as a whole that it applies whether the employee was killed, or whether he merely received injuries, not resulting in death.
(2) That, considering the context of the whole section, the term “employee,” as used in the first part of Section 131, with respect to the right to recover damages against a negligent third person causing the death of an employee, is, also used in the sense of dependents and that the dependents of such a deceased employee have a right of action under the Death Act, which, for that purpose, must be read in connection with the Compensation Act.
I am in accord with both of these conclusions.
The result of the majority opinion is that it construes the first part of Section 131, as though it read:
“The employee (or his dependents) may, at his (or their) option, either claim compensation, * * * or obtain damages from or proceed at law against such other person to recover damages, etc.; * * * and if compensation is awarded * * *the employer * * * shall be subrogated to the rights of the injured employee, or of his dependents, to recover damages against such third person.”
When, however, the majority of the court construe the latter part of precisely the same sentence — providing that the employer who has paid or become liable for compensation “may recover in his own name or that of the injured employee” — they construe the language used literally and disregard the meaning they had already given the term “employee” in the preceding part of the "sentence.
After the above quotation, the statute proceeds to provide what the employer may recover, viz., “the idemnity paid or payable to the injured employee.”
' It, also, necessarily follows from the conclusions reachedin the majority opinion that, when the employee is killed by the negligent third person, the term “employee,” as used in this clause, means “dependents. ”"
*307If the conclusion of the majority of the court were otherwise, no indemnity would have been paid and there would, therefore, be nothing for the employer to recover.
If the term “employee” be so construed in both a prior and subsequent part of the same sentence and section, why the same construction does not apply in that part of the sentence, which provides that the employer who has paid compensation may recover in his own name, or that of the “injured employee,” is not pointed out.
Lewis in his edition of Sutherland on Statutory Construction (vol. 1), § 399, thus states the principle involved:
"A word, or phrase, repeated in a statute will bear the same meaning throughout the statute unless a different intention appears.” See, also, N. Y. Central R. Co. v. Lazarus, 298 Fed. Rep. 900 (902).
I am unable to find anything in Section 131 indicating that the word “employee” was not used in the same sense throughout the section, and the rule above quoted certainly would lose none of its force when applied to the same word in the same sentence.
If the term “employe” be construed in the same manner throughout the sentence, the clause with respect to bringing suit would, in effect, read: the employer who has paid or become liable for compensation “may recover in his own name or that of the injured employee (or his dependents).”
When so construed, the solution of the question involved here is clear.
Section 139 defines “dependents” and provides that wherever the context requires it the term shall be held to include, among n other persons, the personal representative and the widow of the deceased employee.
The Death Act (Chap. 210, ml. 22, Laws of Del.), in substance, provides that whenever death shall be occasioned by unlawful violence, or negligence, damages may be recovered in an action by the widow or widower of the deceased person, or, if there be none, by his personal representative.
*308The deceased employee in this case left a widow; a suit by the employer against the negligent third person, in the name of the widow of such employee, would, therefore, seem to be authorized by Section 131 of the Compensation Act, as read in connection with the Death Act.
Both Hall v. Thayer & Co., 225 Mass. 151, 113 N. E. 644 and Turnquist v. Hannon, 219 Mass. 560, 107 N. E. 443, support this conclusion. While the suits in those cases were by the personal representatives, the same principles were involved.
The Massachusetts statute is very similar to our statute. It provides that, if compensation be paid by the employer, suit “may” be brought against the negligent third person, in the name of the State Insurance Association, or in the name of the employee.
It is true that the Massachusetts statute defines “employee” but the majority of the court have construed “employee,” as used in our statute, to mean “dependents,” and that word has been expressly defined by Section 139 of the Delaware statute.
If the conclusion reached by the majority of the court be correct, an employer, who has paid compensation to an employee for injuries not resulting in his death, “may” recover either in his own name or in the name of the “injured employee”; yet, where compensation is paid the dependents of a deceased employee, based on precisely the same clause of the statute, suit against the negligent third person can only be brought in the name of the employer. Considering the alternative language used, as well as the optional word “may,” I find nothing in Section 131 read as a whole that justifies the conclusion that such a result was intended.
It is true, as stated by the court below, and also, by the majority of this court, that the Compensation Act contemplates that the dependents of an employee, killed by the negligent act of a third person, as well as the merely injured employee, must elect whether to accept compensation, or to sue the tort-feasor. Turnquist v. Hannon, 219 Mass. 560, 107 N. E. 443; Hall v. Thayer, 225 Mass. 151, 113 N. E. 644; Barry v. Bay State Street Ry. Co., 222 Mass. 366, 110 N. E. 1031; Miller v. N. Y. Ry. Co., 171 App. *309Div. 316, 157 N. Y. Supp. 200; McGarvey v. Independent Oil Co., 156 Wis. 580, 146 N. W. 895.
The real question here, however, is a broader one than that; it is whether the employer who has paid compensation to the widow and children of a deceased employee, may proceed in the name of the widow of such deceased person against the negligent third person who caused his death.
My conclusion is that while the employer might have prosecuted the suit in this case in his own name, a suit by him in the name of the widow of the deceased employee is, also, authorized by the statute.
Additional reasons might be given, in support of this conclusion, but it seems unnecessary to state them at the expense of prolonging this opinion.