(dissenting): The result reached “-runs riot” with my reasoning. Although I have sincere respect for the legal logic in the majority opinion, I cannot conclude that the legislature intended to permit employees operating under the workmen’s compensation act, and their dependents, to recover a larger amount of damages than any other class of people in the state. If I comprehend correctly the court’s opinion, it must follow- by analogy therefrom that at-the time the accident occurred a widow of a workman could have recovered in a common-law action damages in the amount of $10,000 (G. S. 1935, 60-3203, later amended), and in addition workmen’s compensation benefits in the amount of $4,000 plus burial expenses in the amount of $150, or a total of $14,150. (G. S. 1945 Supp., 44-510),-while at the same time the widows of'most of the members of the legislature would have been limited to recovery of $10,000. Moreover, it must follow from parallel reasoning that *480the legislature intended that a man v^ho was injured by reason of the negligence of a third party could recover damages unlimited in amount by statute in a common-law action against such party, but that if he was a workman under the compensation act and suffered permanent total disability, for example, he could recover in addition thereto not to exceed $7,488 plus medical, surgical and hospital bills not exceeding $500. (G. S. 1945 Supp., 44-510, supra.) If the legislature enacted a statutory provision authorizing such additional recoveries by workmen or their dependents, then in my opinion, it did so unintentionally. If the thought be sound, then it must simply follow that such was not the intent of the legislature. The deduction would not be warranted, of course, if the statute were free from ambiguity. But the statute is not free' from ambiguity. And my opinion is not based solely on the simple deduction above set forth.
In Krol v. Coryell, 162 Kan. 198, 175 P. 2d 423, this court construed the same statute which is before us now for consideration in this case. In the cited case we recognized that the statute was silent on the extent of the employer’s subrogation rights arising by the statutory assignment. The same statute also is silent on the extent of the employer’s subrogation rights which may develop subsequent to the date when a workman obtains a judgment against a third party. The opinion in the cited case reads:
“On the contrary, without judicial welding it permits the employer to speculate upon the misfortune of his employee, it allows him to unjustly enrich himself at the expense of a third party, and in effect results in a violation of the fundamental principles of the law of subrogation, the very source from which springs the right of an employer ever to recover what he had-been out of pocket because of injuries suffered by his employee at the hands of a third person.’’ (p. 204.) (Emphasis supplied.)
Basing our reasoning upon the fundamental principles of the law of subrogation, we read into the statute, in substance, a provision to the effect that an employer’s recovery is limited to expenditures made by the employer. But in this case, when again the statute “is wholly silent on the subject of equitable contribution or distribution between such parties . . .” we hold that the employer cannot be entitled to recover as his interest may appear under the “fundamental principles of the law of subrogation.” Thus, the' silence of the legislature upon the subject of equitable contribution-was' construed in Krol v. Coryell, supra, as requiring that the *481fundamental principles of the. law of subrogation be followed but the silence of the legislature in the same statute in the present case is now construed as defeating the fundamental principles of the law of subrogation. However, inconsistency is not a basis for decision, and I cite the case — not for the purpose of emphasizing its inconsistency with the present case, but because I think the cited case follows the rule which should control the present case.
It is apparent to me that the legislature inadvertently omitted giving comprehensive consideration to some of the elements involved when it enacted G. S. 1945 Supp., 44-504. The statute is not complete within itself and, therefore, a court should look within the spirit of the statute and not be confined “within the letter, . . . of it.” In the early Prohibitory Amendment Cases, 24 Kan. 700, 716, Mr. Justice Brewer quoted from Coke’s Inst., as follows:
“It is an old and familiar doctrine that that which is within the spirit of the statute, though not within the letter, is a part of it; as well as that which is not within the spirit, but within the letter, is not a part of it. Quaecunque intra rationem legis inveniuntur, intra legem ipsqm esse judicantur. (2 Coke’s Inst. 689.) It will not be presumed that the legislature went through the form of legislative action, intending nothing. (City of Emporia v. Norton, 16 Kas. 236.) or that it made incomplete provision for carrying its intention into effect.”
Later, Mr. Justice Valentine, in Shellabarger v. Comm’rs of Jackson Co., 50 Kan. 138, 141, 32 Pac. 132, wrote:
“Where it reasonably appears what was the intent of the legislature, the statute will be construed so as to effect that intent, although contrary to the letter of the statute. (In re Vanderberg, 28 Kas. 243, 258; Sedg. Stat. Constr. [2d ed.] 254, 255, note; Canal Co. v. Railroad Co., 4 Gill & J. 152; Brown v. Somerville, 8 Md. 444, 456; City of Wichita v. Burleigh, 36 Kas. 34, 42; People v. Utica Ins. Co., 15 Johns 358; same case, 8 Am. Dec. 243, 251; Pond v. Maddox, 38 Cal. 572; Amberg v. Rogers, 9 Mich. 340; The State v. Boyd, 2 Gill & J. 365, 374; Car Spring Co. v. Railroad. Co., 11 Md. 81; same case, 69 Am. Dec. 181; United States v. Freeman, 3 How., U. S. 556, 565; Murray’s Lessee v. Baker, 3 Wheat., 541; Oates v. National Bank, 100 U. S. 239; United States v. Kirby, 7 Wall. 483, 486, 487.)”
It is evident to me that if the legislature had intended that a workman or his dependents, under the workmen’s compensation act, should have the right to take compensation under the act, and pursue his or their remedy against some person other than the employer, and that the employer should be subrogated only “to the extent of the compensation and medical aid provided by him to date of such recovery” and no more, the legislature would have said so in certain *482terms and there would have been no occasion for construction of the statute. The section of' the statute should be construed as a whole. The statute provides that the employer shall be subrogated to the extent' of the compensation and medical aid provided by him to the date of the recovery against a third party.. One inference to be drawn therefrom is that the legislature intended that in the event the employee recovered damages in a common law action against ’a third party, the employee would not be entitled to any additional compensation from the employer and that, therefore, it was necessary only to protect the employer “to the extent of the compensation paid and medical aid provided by him to date of such recovery.” I cannot believe that it was the intent of the legislature to have the extent of the employer’s subrogation rights determined by the time within which the employee might recover against a third party unless it was also the intent of the legislature to' relieve the employer from further liability in the event of such recovery. To hold otherwise requires us to asume that the legislature desired to favor an employee who quickly recovered against a negligent third party and penalize an employee who was not so diligent. There could be no legislative purpose in inducing an employee to act with rapidity by increasing the employer’s right of subrogation in the event .of delay. It also seems reasonably clear to me that the legislature was not attempting to induce an employer to make a lump sum settlement in order to have complete subrogation rights. Such a conclusion would be contrary to the letter and spirit of other provisions of the workmen’s compensation act and would make the remaining provisions of the statute under consideration unreasonable.
The statute continues:
“Such action against the other party, if prosecuted by the workman, must be instituted within one year from the date of the injury, and, if prosecuted by the dependents or personal representatives of a deceased workman, must be instituted within eighteen months from the date of such injury. Failure on the part of the injured workman, or the dependents or personal representatives of a deceased workman to bring such action within the time herein specified, shall operate as an assignment to the employer of any cause of action in tort . . . .” (G. S. 1945 Supp. 44-504.)
’ If the, legislature had intended to allow the employee to take all compensation benefits and recover algo all damages.allowed bylaw iñ a third party action,.it certainly.would not have enacted the subrogation arid assignment provisions in the remaining portion of *483the section-. If the employee is entitled to háve both workmen’s compensation and common law damages, the employer would have no interest in whether the employee brought an action to recover for the negligence of a third party. In such circumstances, the cause of action for negligence would be a matter of no concern to the employer. Such a result would follow from the' holding in this case if it were possible for the employee to obtain the judgment in the common law action before he accepted any compensation benefits. If it was the intent of the legislature to penalize an employer in the event an employee acted promptly in obtaining a judgment against a third party, then why did the same legislature provide for the assignment of the employee’s right of action after one year? It is obvious that the legislature assumed the employer’s right of subrogation should exist at all times — both before and after the assignment of the employee’s right of action. The legislature did not intend that an employee would be paid a premium or that the employer should suffer a penalty based upon the order or of; the timing of procedure.' And the legislature did not intend to limit or eliminate the employer’s right of subrogation by the provision which reads: “The employer shall be subrogated to the extent of the compensation and medical aid provided by him to date of sucli recovery.” Such provision establishes the subrogation right of the employer upon the presumption that the employee will not recover further compensation, but it does not say that the employer is denied further subrogation rights if the employee seeks further compensation from the employer. There is no basis for distinction between compensation benefits paid to an employee before he recovers in an action against a third party and compensation benefits which might be paid to án employee after he has successfully or unsuccessfully prosecuted an action against a third party.. The character of the subrogation rights is .the same in each instance. Why should an employer be allowed to recover, by subrogation’ money paid, out in advance of a third party action and not be permitted to recover money paid out after a third.party -action was concluded? The legislature never intended that such a distinction should develop from construction, of the statute. From such reasoning, if such it be, I reach the conclusion that the legislature either contemplated that an employee’s recovery against a negligent third party would bar the employee from recovering further compensation, or that .the legislature failed to contemplate subrogation rights *484of an employer arising after a negligence action had been concluded, or more probably intended that if any such subrogation rights should develop, that the employer would be subrogated at all times to the extent of his interest.
I am well aware of all that is said in the majority opinion relative to legislative history and I realize that much force must be given to the fact that the legislature left out of the present statute .the language contained in the former statute, G. S. 1935, 44-504, reading:
“. . . such employer may enforce in his own name, or the name of the workman, the liability of such other party for their benefit as their interests may appear.” (Emphasis supplied.)
But as hereinbefore indicated, I think that the legislature contemplated that the employer would not have any interest beyond “the extent of the compensation and medical aid provided by him to date of such recovery,” or failed to comprehend that an employer might be forced to pay compensation after an employee had recovered a judgment against a third party. And I think that the fundamental principles of the law of subrogation require this court to read again into the statute the intent of the legislature that the employer is entitled at all times to recover by subrogation to the extent of his interest, as the court did in Krol v. Coryell, supra. The authorities herein set forth justify reading such intent into the statute even though it is not expressed in the statute. The spirit of the statute demonstrated by the legislative desire to protect the employer’s right of subrogation at all times by providing for the assignment of the negligence action is, in itself, sufficient to show such legislative' intent. My conclusion in such respect is fortified by the amendment of the section of the statute under consideration, by the legislature in 1947 (same being Senate bill 322, Laws 1947, ch. 287, § 1). The new statute, after providing for action being brought by the employer against a third party in certain circumstances, now reads:
“. . . such employer may enforce same in his own name or in the name of the workman, dependents or personal representatives for their benefit as their interest 'may appear by proper action in any court of competent jurisdiction.” (Emphasis supplied.)
Thereby the 1947 legislature has demonstrated that it did not intend, prior to the 1947 amendment, to deprive the employer of his right to recover subrogation as his “interest may appear.” We are deciding the present case after the amendment of the statute by the 1947 session of the legislature. The legislature has power, in the *485absence of an intervening court decision to the contrary, to indicate by a later act what its intention was in passing an earlier one (see State v. Shawnee County, 83 Kan. 199, 110 Pac. 92, and Prudential Ins. Co. v. Patten, 140 Kan. 708, 38 P. 2d 143, and cases therein, cited). I do not agree with the statement in the majority opinion to the effect that no change was made by the 1947 amendment which pertains to the right of a workman to recover both- workmen’s compensation and damages from a negligent third party. The statement in the opinion is correct insofar as it asserts that there appears to be no express change made by the 1947 amendment. But in my opinion the spirit and intent which I read into the statute are amplified by the amendment. In passing the amendment, the legislature did not provide that the interest of the employer which “may appear” should be limited and restricted to the amount the employer has paid at the time the employer may obtain judgment against a third party if the employee intends, to seek additional compensation from the employer. And I think the legislature, by the amendment, has indicated its intent that “equitable adjustment” should be read into the statute by again inserting therein “as their interest may appear.” To hold otherwise would restrict the meaning of the words to an impractical and unjustified extent. The result of holding otherwise and the complications which follow can be shown clearly by illustration. Let it be assumed that an employee, under the statute as amended, had obtained an award against an employer based upon permanent, total disability in the amount of $7,488, payable at the rate of $18 a week for a period of eight years from the date of the injury, as provided by G. S. 1945 Supp. 44-510, supra, and that the employee failed to bring any action within one year against the negligent third party. As a consequence, the right of action against the third party passed, by statutory assignment, to the employer. Assume further that the employer recovered a judgment against the third party for $10,000 and collected that amount and that such judgment was obtained and collected at the end of approximately two years from the date of the accident; that during such interval of 104 weeks the employer had paid to the employee at the rate of $18 a week the sum of $1,872 and had not paid the balance of the $7,488. In such circumstances I cannot bring myself to think that the legislature intended by again inserting into the statute that the employer could bring the action for their benefit “as their interest may appear,” that the employer’s interest in the *486judgment against the third party would be limited to the amount' of $1,872, and that the employer must continue to pay the balance of the compensation award .to the' claimant and also pay over to him the remaining balance of the $10,000 recovered from a negligént third party. In such an instance, the actual interest of the emplpyer would not appear to be limited to $1,872. Again it should be said that surely the legislature did not intend that the interest of the employer should be affected by the judgment being obtained earlier or later as follows from the construction given to the statute in the majority opinion. From á practical standpoint, it should be noted further that if the legislature intended to induce an employee to make an early, quick settlement with a negligent third party in order to shut off the subrogation rights of the employer at the time the settlement was made, then the legislature, in fact, was indirectly aiding the negligent third party in obtaining a settlement for a less amount than the circumstances might justify. The legislature never intended to favor a negligent third party. All of such inconsistencies, I think, arise by analogy from the construction of the-statute set forth in the majority opinion but they disappear if the statute is construed within its spirit of equitable distribution. I am not convinced to the contrary by the reasoning set forth in the majority opinion to the effect that a workman may recover damages in a common law action for which he would not be compensated under the limited recovery allowed by the workmen’s compensation act. The contention is correct but I respectfully inquire: Does not the reasoning run in reverse in this case? We do not have before us a case in which the workman recovered all of the compensation to which he was entitled and then sought to obtain additional damages in a common law negligence action against a third party'. In this case the workman recovered, theoretically at least, all of the damages to which he was entitled in the common-law negligence action and then sought to recover workmen’s compensation in addition théretó. All of the elements of damage for which the .workmen’s compensation act allows recovery are also- a basis for recovery of damages in a common-law action. Consequently, in theory, it makes no difference in the present case whether the amount which a workman can recover under the workmen’s compensation act is in some cases wholly inadequate. I am unable to comprehend wherein the element of attorney’s fees has particular significance in this case. Of course, any litigant is .confronted with the problem of *487having to pay an attorney fee. A claimant, under .the workmen’s compensation act, usually has to pay an attorney fee in the event of litigation. The principle is the same whether the action be one to recover workmen’s compensation benefits or damages at common, law. The court is concerned only with the principle involved and not with the percentage of the recovery which may be paid out in fees. I see no similarity between the situation which exists in this case and in cases in which a negligent third party seeks to assert, as a defense, that compensation has been paid, as set forth in the majority opinion. Under the theories justifying the enactment of workmen’s compensation laws, the employer is required to pay compensation to an employee regardless of whether the employer was negligent, and, therefore, is entitled to subrogation when the accident is attributable to the negligence of another. Such an element does not arise in cases wherein recovery is sought against the negligent third party, and, therefore, such cases do not have any application or analogy to the present case.
This is not a case in which the workman has recovered in a common-law action less than he could recover finder the workmen’s compensation law. The contrary is true. The workman has recovered by reason of a paid judgment the sum of $6,000 in the instant case. The total amount of the award for compensation is $5,862.96. Therefore, we do not have before us an instance .in which the question should be decided whether an employee would be entitled to. recover additional compensation when the amount of his recovery in a common-law action is less than he is entitled to receive under the workmen’s compensation act. In the instant case, the district court approved the' findings and the award entered by the commissioner and the commissioner credited the appellants with only the amount of $774 which had been previously paid by the appellants, and thereby the compensation commissioner and the district court denied to the appellants any subrogation rights whatever in and to the $6,000 which the appellee had collected from a third party. The question really presented in this case, therefore, is whether an employee can recover additional compensation benefits without the employer being credited with the amount the employee recovered in a common-law action. In other 'words, the question actually being decided is whether the employee must credit the employer, who is liable to pay workmen’s compensation, with the amofint the employee has recovered from a third party, and the *488court, from a factual standpoint, is deciding such question. Appellants’ brief reads:
“The sole question posed by the appeal is: Does the Kansas Workmen’s Compensation Act authorize a claimant to take full compensation for disability subsequent to the date on which the claimant recovers judgment against a negligent third party for damages for the\identical personal injuries which result in the disability for which compensation is claimed?” (Emphasis supplied.)
In my opinion, there is a great difference between the question whether a workman may have any subsequent recovery of workmen’s compensation and the question whether a workman can recover full compensation for disability after he has obtained a judgment against a negligent third party without giving the employer any credit for the amount of the judgment. In my view, the fact that the appellants did not intervene in the common law action is of little or no consequence in considering the question presented. We are not concerned with the appellants’ possible lien rights although the legislature, by providing for the same, indicates an intent to protect the employer’s subrogation rights at all times even before a statutory assignment occurs.
As I read the majority opinion, it in effect construes the involved statute so that it permits a double recovery to workmen and their dependents in some instances, and makes a general statutory law pertaining to limitation of damages in death cases inapplicable to dependents of claimants operating under the workmen’s compensation act. I do not discuss any constitutional complications which may arise from such construction because they were not presented by the appeal. The judgment of the district court should be reversed in this case.