(dissenting).
The ground of my dissent from the conclusion reached by the majority of the Court is that the Supreme Court of this State in the case of Silvia v. Scotten, supra, has indicated quite clearly its view of the meaning and effect of the subrogation provisions of the Workmen’s Compensation Law in its relation to the Death Act.
In that case the immediate question before the Court was whether a compensating employer under the Compensation Act could maintain an action for damages in the name of the widow of his employee against a third person tort-feasor who had through negligence caused the death of the employee, the purpose of the action being to reimburse the employer for the amount of the award paid or payable to the widow.
It became necessary for the Court to construe the sub*297rogation provisions of the Compensation Act as found in Section 6108 of the Revised Code in connection with Section 4638, which is the Death Statute; and as I read the opinion of the Court in the Silvia case its view was that when an award under the Compensation Act has been made to the dependents of a deceased employee killed through the fault of a third person, the provisions of the Death Statute with respect to those who may enforce the liability created by that act are amended by the Compensation Act. The liability created by the Death Statute then exists primarily for the benefit of the compensating employer.
The present Chancellor, who dissented in that case upon the immediate question for decision, was in entire accord with the majority of the Court with respect to the general amendatory effect of the Compensation Act over the Death Act with respect to those who are entitled to assert the liability for wrongful death where compensation under the Compensation Act has been, or is agreed to be, paid. He stated the position of his colleagues as he understood it in the following language :
“That, considering the context of the whole Section, the term ‘employee,’ as used in the first part of Section 181, 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.’ ”
The majority of the Court dismiss the Silvia case for the reason that there the only damages involved were the amount of the award made to the widow, the suit being in her name but for the benefit of the compensating employer; *298and while it is not expressly declared, it is apparent that their thought is that the expressions employed by the Supreme Court are mere dicta, where applied to a dependent other than a widow. It is often a matter of delicacy for one Court to pronounce observations and expressions made by another Court as outside the scope of the question raised; and particularly so when they appear to form a part of the reasoning by which the conclusion is reached. Having consideration for the expressions found in both the majority and minority opinions in the Silvia case, which do not appear to have been made inadvertently or uselessly, but as a part of the logic of the conclusion, I am of opinion that this Court ought not to disregard their force and effect. If modification of expression and clarification of meaning be necessary, recourse should be had to the Supreme Court.