(dissenting): Being unable to join in this decision, I will briefly state my views. I agree that under the provisions of the workmen’s compensation law, G. S. 1945 Supp. 44-504, the widow had only eighteen months- in which to bring the action against the defendants and that if she did not do so within that time, right of action accrued by statutory assignment to the employer. Under *775the provisions of the civil code (G. S. 1945 Supp. 60-3203) actions for wrongful death may be brought within two years and it follows, I think, that although section 44-504 of the workmen’s compensation act does not fix the time within which the employer may bring' the action, he would have only the remaining six months within which to bring it. The action having been brought more than eighteen months but less than two years after the death, it could only be maintained by the employer.
By motion to make more definite and certain, the defendants sought to find out whether the widow, the plaintiff named, was bringing the action, or whether it had been brought in her name by and on behalf of the employer. This motion was successfully resisted. In the first petition, the plaintiff prayed “for damages for wrongful death of said Leonard Elam in the amount of $10,000 for the exclusive benefit of the plaintiff, as¡ widow, and of Thora Kay Elam, minor daughter of said decedent.” (Italics supplied.) By amendment to the petition, the words following the figures $10,000 in the prayer were eliminated. This amendment, however, in no way disclosed whether she or the employer was in fact bringing the action and for whose benefit it was being brought. In its letter to the attorneys, the trial court stated:
“Interpreting the petition from its four corners, the court concludes that the plaintiff is still maintaining the action, for and on behalf-of herself; and in this event, she is barred by the eighteen months statute of limitations and the demurrer is sustained on that ground only.”
Under the circumstances, the trial court had every reason to so interpret the petition. Certainly in view of plaintiff’s resistance of the motion, she — or he — was not entitled to have the court read into the petition a supposition that the employer was the real plaintiff and party in interest. Indeed, this court now says in its opinion: “Had this information been disclosed to the trial court it is very probable this appeal would not have been necessary.”
We are thus confronted with this situation: Acting upon the petition before it, the ruling of the trial court cannot be said to be improper. Plaintiff appealed, and neither in the briefs nor in oral argument was it.disclosed to- this court that the action was instituted by the employer and that he is the appellant and real party in interest. It was only after insistent inquiry from this court following the argument that that fact was disclosed. And yet we now reverse the trial court upon the basis of a fact which the appellant *776succeeded in preventing the trial court from knowing. I do not think We should approve such procedure. Not only was it unfair to the trial court, but it puts upon the appellees the burdens incident to appeal and reversal, although they sought in timely manner to elicit the information which, as the court now says, would probably have made the appeal unnecessary.
One additional comment. Appellant contends that chapter 287, Laws of 1947, is remedial and not substantive in character, and should therefore be applied to the instant case. I agree with what is said in the court’s opinion with reference to this contention, and only add that whether remedial or substantive, chapter 287 of the Laws of 1947 not only was not in effect when the instant action was filed, but it did not go into effect until more than three months after the instant judgment was entered. Under no interpretation, therefore, could it be applicable to the pending litigation.
Wedell and.Burch, JJ., concur in the foregoing dissent.