(concurring specially). As indicated in the opinions prepared by the Chief Justice and Mr. Justice Bronson, one of the two controlling questions presented on this-appeal is whether the Workmen’s Compensation Act bars the plaintiff from maintaining an action for the death of his son. r Both opinions make reference to § 11 of the Workmen’s Compensation Act. That section reads as follows:
“Employers subject to this act, who shall fail to comply with the provisions of §§ 6 and 7 hereof, shall not be entitled to the benefits of this act, during the period of such noncompliance, but shall be liable to their employees for damages suffered by reason of injuries sustained in the course of employment, and also to the personal representatives of such employees where death results from such injuries, and in such action the defendant shall not avail himself or itself of the following common-law defenses:
“The defense of the fellow-servant rule, the defense of the assumption of risk or the defense of contributory negligence.
*787"And such employers shall also be subject to the provisions of § S.
"Any employee whose employer has failed to comply with the provisions of §§ 6 and 7 hereof, who has been injured in the course of his employment, wheresoever such injury has occurred, or his dependents in case death has ensued, may, in lieu of proceedings against his employers by civil action in the court, file his application with the Workmen’s Compensation Bureau for compensation in accordance with the terms of this act, and the Bureau shall hear and determine such application for compensation in like manner as in other claims before the Bureau; and the amount of the compensation which said Bureau may ascertain and determine to be due to such injured employee, or to his dependents in case death has ensued, shall be paid by such employer to the person entitled thereto within ten days after receiving notice of the amount thereof as fixed and determined by the Bureau; -and in the event of the failure, neglect or refusal of the employer to pay such compensation to the person entitled thereto, within said period of ten days, the same shall constitute a liquidated claim for damages against such employer in the amount so ascertained and fixed by the Bureau, which with an added penalty of fifty per cent., may be recovered in an action in the name of the state for the benefit of the person or persons entitled to the same.”
Laws 1919, chap. 162, §11.
Tire contention of the defendant is that, by virtue of § 1 cf the Compensation Act, all rights of action formerly existing were abolished; that such rights of action, and such only, now exist as are prescribed by that act; that, by virtue of .§ X1 of the act, the personal representative alone may maintain an action in case the injury results in death. It seems to me that the last contention ignores the portion of § 11 which I have italicized. That portion clearly recognizes that the dependents may maintain an action in case of death. See 25 R. C. L- p. 979. The complaint in this case alleges, and the proof shows, that the father was a dependent of his deceased son within the purview of the Workmen’s Compensation Act. In other words, the complaint alleges, and the proof shows, that the action is brought by one whom the Compensation Act expressly recognizes as having the right to maintain such action.
I also agree with my Associates that,- under the evidence in this case, it is a question for the jury whether the death of Clifford Olson was *788caused by the negligence of the defendant.