(dissenting). The determinative question presented by this record is concisely stated in the brief of defendant as follows:
“The controlling question being whether or not compensation due deceased on account of the permanent injury suffered, namely, the loss of certain parts of his fingers, became a vested right in his estate upon his death, when death results from other causes than injury.”
My learned Associate Mr. Justice THURMAN discusses the ease on the theory that such is the decisive question. In the prevailing opinion he says:
“The correctness of the conclusion reached by the Commission that the estate of David Murphy, deceased, is entitled to succeed to the benefits which he would have received had he lived seems to be the only question left for our determination.”
The authorities, under workmen’s compensation laws such as ours, are to the effect that whenever the statute has fixed a definite amount payable to a particular person the right of sueh person, or, in the event of his death, his legal representative, to receive the amount so fixed cannot be defeated *70except by some positive provision of tbe statute terminating such right, or unless the manifest intent and general purpose of the act would be thwarted by enforcing payment. Munding, State ex rel. v. Industrial Com., 92 Ohio St. 434, 111 N. E. 299, L. R. A. 1916D, 944, Ann. Cas. 1917D, 1162; Smith v. Kaw Boiler Works Co., 104 Kan. 591, 180 Pac. 259; Wangler B. & S. Metal Works Co. v. Industrial Com., 287 Ill. 118, 122 N. E. 366; Darlington v. Roscoe, 1 K. B. 219, 76 L. J. K. B. N. S. 37; United Collieries v. Simpson, A. C. 383, 78 J. C. P. N. S. 129. The last two cases are cited in notes 95 .and 96, L. R. Á. 1916A, 135.
The Lord Chancellor, in United Collieries v. Simpson, supra, in discussing a similar question to the onfe under consideration, said:
“The act does not require that the dependent himself should make the claim, and I do not see why that right to make the claim should not pass to the executor. * * * No douht this act was intended to save dependents from the loss they might sustain hy being deprived of the support they previously had from the deceased workman, and if the dependents themselves die they require it no longer. And it seems anomalous to enforce payment when no dependent is still living to require support. The act, however, provides a fixed sum, and this must be taken as the statutory provision, whether in the event it is needed or not. Perhaps if this result had been foreseen it might have been guarded against; but that cannot affect the judgment of a court of law."
In Wangler B. & S. Metal Works Co. v. Industrial Com., supra, the fourth headnote, which correctly reflects the opinion of the court, reads as follows:
“In view of Workmen’s Compensation Act, § 9, and section 19, par. ‘g,’ the right to compensation, though not a subject of bequest, and though continuing in the dependents of the beneficiary only in manner provided by the act, is a vested right, and can be affected only by the act of the Legislature that gave it.”
No case is cited, nor has any been found, holding contrary to the conclusions announced in the foregoing authorities.
Proceeding upon the assumption that the authorities cited support the foregoing general statement of the law, it is advisable to examine the sections of our act to determine whether there is anything except mere deductions to warrant *71the conclusion that the terms of the act defeat the right of the estate of the injured employe to receive the compensation fixed by the act. It will not be, and is not, contended that the amount of compensation to which the deceased would have been entitled had he lived was in any way contingent upon the question of dependency or upon any judgment of the Commission. It is a definite sum fixed by statute. No discretion is left in the Commission, save that it may commute the payments and direct the amount to be paid in a lump sum. Comp. Laws, Utah, 1917, § 3137, being one of the sections of the Workmen’s Compensation Act, as amended by e. 63, laws Utah, 1919, provides for compensation in cases of temporary disability, and fixes the amount to be paid. The right of the claimant in this proceeding is governed by Comp. Laws, Utah, 1917, § 3138, as amended by e. 63, Laws, Utah, 1919. If the award made by the Commission is not authorized and must therefore be annulled, the reason will have to be found in this section. The section as amended reads as follows:
“Where the injury causes partial disability for work, the employé shall receive, during such disability and for a period of not to exceed six years beginning on the fourth day of disability, a weekly compensation equal to 60 per cent, of the difference between his average weekly wages before the accident and the weekly wages he is able to earn thereafter, hut not more than $16.00 a week. In no case shall the weekly payments continue after the disability ends, or death of the injured person, and in case the' partial disability begins after a period of total disability the period of total disability shall he deducted from such total period of compensation. In the case of the following injuries the compensation shall he 60 per cent, of the average weekly wages, hut not more than $16.00 to be paid weekly for the period stated against such injuries respectively, and shall be in addition to the compensation hereinbefore provided for temporary total disability, to wit: For loss of: [Here follows schedule of amounts to he paid for loss of arm, hand, finger, etc.]”
The provision of the section claimed by counsel for plaintiff as authority to defeat the award is the sentence found in the above quotation as follows:
“In no case shall the weekly payments continue after the disability ends, or the death of the injured person. * * *”
Upon an analysis of that section it- is apparent that two *72distinct grounds or rights to compensation are included. The first relates to an injury causing “partial disability for work.” (Italics mine.) The sentence last quoted and relied upon to defeat the award at most is merely a proviso or limitation upon the general terms found in the section.-
“The proviso is generally introduced by the work ‘provided,’ but its existence and effect are to be determined rather by its matter and substance than by its form.” 36 Cyc. 1162.
The same meaning would have been conveyed if the Legislature, rather than making the limitation a distinct, independent sentence, had used the word “provided” preceding “In no case,” etc. Such béing the evident intent of the language quoted, no good reason is found in the act why the ordinary rules of construction should not be applied to this language. The usually accepted function of a proviso is to limit preceding general terms used in the statute. Rawls v. Doe, 23 Ala. 240, 48 Am. Dec. 289; De Graff v. Went, 164 Ill. 485, 45 N. E. 1075; In re Bovier’s Estate, 52 Utah, 285, 172 Pac. 683; Sullivan v. Bailey, 125 Mich. 104, 83 N. W. 996; Wolf v. Bauereis, 72 Md. 481, 19 Atl. 1045, 8 L. R. A. 680; United States v. Bernays, 158 Fed. 792, 86 C. C. A. 52.
In Rawls v. Doe, supra, the court said:
“As the natural and appropriate office of a proviso is to restrain or qualify some preceding matter, we think, upon sound principles of construction, it should be confined to what precedes, unless it is clear that it was intended to apply to subsequent matter.”
That rule of construction received the approval of this court in Re Bovier’s Estate, supra.
An examination of the section quoted proves conclusively that the injuries mentioned in the latter part of that section are in no way related and are in no way kindred to the disabilities or injuries mentioned in the part of the section which precedes the proviso. The latter part of the section deals exclusively with compensation for the loss of an arm, hand, or some other portion of the body specifically mentioned in the schedule. Following that schedule there is no intimation that the compensation provided for therein is to be defeated by the death of the injured person or after the *73disability ends. In fact, we are dealing with, a disability or injury that in the very nature of things can never end; nevertheless we are applying a defeasance clause that provides that an award may be defeated by the removal of a disability.
In my judgment, the decision of the Ohio Supreme Court in State v. Industrial Com., supra, ought to be decisive of the question here presented. As stated by Mr. Justice THURMAN, our "Workmen’s Compensation Act is copied largely from the law of that state. The decision in the above case was rendered in July, 1915, some two years prior to the enactment of the law in this state. The statute in that state fixed a definite amount to be paid to the dependents and the court held that such became a vested right and descended to the estate of the one to whom the payments should have been made had he lived. In the course of the opinion the court said:
“If the deceased employ'd left a widow who was living with him at the time of his death, the hoard must find that she was wholly dependent upon her deceased husband, and must make a certain award of compensation to her. The question of dependency and amount of award in such cases are both determined absolutely by the statute. The hoard can only act formally and must so act.”
The amount payable to the deceased under section 3138, supra, is determined by the statute. There is no question of dependency involved. Neither is there any question of the loss of wages. The sole question for the Commission to determine was, Did the loss of the finger occur in the course of or arise out of the employment? If so, the statute fixes definitely the amount of payment. The fact of the construction of the statute by the Ohio court prior to the enactment of the law in this state must be presumed to have been within the knowledge of the Legislature at the date of the enactment. Apparently with a view of defeating the application of that construction to certain portions or provisions of our act the Legislature inserted the proviso found at or near the center of section 3138.
Section 3141 of the act has to do with the apportionment and payment of benefit .in cases of death. The Legislature, *74apparently to further emphasize its intent that the limitation or defeasance of the award should apply only to certain specific provisions of the statute, and not to the act generally, provided, in the last sentence of said section 3141, as follows:
“Should any dependent of a deceased employe die or marry during the period covered by such weekly payments, the right of such dependent to compensation under this title shall cease.”
It will not be argued, I apprehend, that the limitation quoted affects or relates to any compensation other than that provided for in section 3141. Nothing is found in the act except in the limitations in section 3138, supra, and in section 3141, -above quoted, that even suggests an intent on the part of the Legislature to defeat a right ohce vested. It may well be doubted whether the limitation placed upon the award found in section 3141 was intended to defeat an award; that is, to relieve the insurer of the payment of such award. To illustrate: Suppose that a man is killed by accident while in the employ of another, and leaves a widow and minor children. The Commission, in its discretion, determines that so much of the award is payable to the widow and so much for the support of the minor children. The widow marries again. No one would seriously contend that the insurer would thereby be relieved from paying the full amount of the award to the remaining dependents, and yet such would be the logical result if the majority opinion is a correct interpretation of the intent of the Legislature.
I regard the date of the award as wholly immaterial. The right was or was not in existence prior to the death of the deceased. In this case, admittedly, the deceased, in his lifetime, had the right to demand the compensation as fixed by the statute. The award does not make the right. The award is dependent upon the legal right existing before it is made. It is merely the act of the Commission recognizing a right already in existence.
It is suggested in the opinion of the court that it is hardly conceivable of the right passing to the estate unless the right had vested in some one while living. If the right was in any way dependent upon the award that suggestion might *75have some weight in the reasoning of the court. The right, however, was not dependent upon the award. The right was created by statute. I have attempted to point out that there is nothing in the statute that defeats the right by reason of the death of the claimant.
My associate who writes the prevailing opinion justifies the order annulling the award not upon a construction of the section quoted, but upon what is designated “a fair and reasonable interpretation of the scope and meaning of the Utah Workmen’s Compensation Act.” It is argued that the title of the act ‘ ‘ seems to preclude the idea that any portion of the fund should inure to the estate of the employe, or that of his dependents.” In my judgment, no words are found in the title of the act as quoted in the majority opinion to warrant the conclusion that “the very title of the act itself” precludes “the idea that any portion of the fund should inure to the estate of the” injured “employé.” As set forth in the title, the insurance fund is to be administered for the benefit of injured employés and dependents of killed employés. It may reasonably be assumed that the loss of an arm, finger, etc., would be an injury to an em-ployé. What reason, therefore, is there, from the language found in the title to conclude that if the body of the act vests a right in an injured employé by reason of an injury, that such right is defeated by the scope of the act as set forth in the title. The general purpose and scope of our Workmen’s Compensation law is not different from the general purpose and scope of such laws in other states or other countries. The authorities of this country and of England are in harmony in holding that courts have “no power to put a limitation upon a right legally given by the Legislature.” Wangler, etc., Co. v. Ind. Com., supra.
Neither, in my judgment, is the question presented by this record controlled or concluded by the contention that the underlying purpose of the act is compensation to dependents. It may be admitted that compensation in death cases is not payable except there be dependents at the time of the death. In other words, no rights vest for the simple reason that *76there is no one in whom sucb rights could vest. Granted, as it is in this case, that all the conditions had been fulfilled which vested the right and made the compensation payable, then the only question left is, what is there in the act to defeat the vested right? The error of the majority opinion, in my judgment, is that it fails to recognize the fact that a right had ever vested in the deceased. It is stated by the court that—
“It cannot tie inferred from any language found in the Utah law, that the insurance fund therein provided should he drawn upon or used for any other purpose than as a personal benefit to the class of persons named in the act to be conferred upon them while living.”
My answer to that is that the conclusion is beside the question. The question here is, Is there anything in the Utah law defeating a right once vested in the deceased? If the right had vested, then it requires no provision of the statute to make the necessary deduction or inference. The law itself protects such vested right, unless it is defeated by some positive statute.
The eighth headnote to Wangler, etc., Co. v. Ind. Com., supra, is as follows:
“Courts have no power to put a limitation upon a right legally given by the Legislature, unless by a clear construction of the act it can be said that such limitation was in furtherance of the legislative intent.”
The general purposes sought to be accomplished by the act do not in any way, in my judgment, conflict with the general rule of law that a definite, positive'right fixed by the act cannot be defeated merely by the death of the party intended to receive the benefits stipulated in such law. If the right vested and became fixed in the deceased, it follows that his legal representative is authorized to apply for and collect the amount for the benefit of the estate of such deceased.
I therefore dissent.