I respectfully dissent. Before the passage in 1923 of the death statute a widow had a right of action at common law for damages for the wrongful death of her husband. She also had an alternative remedy in the proper circumstances against her husband's employer under the Workmen's Compensation Act. If compensation were claimed and awarded her under the last named Act, the employer, having paid or having become liable to pay such compensation, became subrogated to the rights of the widow under the provision granting subrogation to the employer to the rights of the "injured employee" as that term is defined in the Act itself. "Any reference to a workman who has been injured shall, where the workman is dead, include a reference to his dependents as herein defined, if the context so requires * * *. `Injury' or `personal injury' includes death resulting from injury" within the time named in the statute. (R.L. 1925, § 3663.)
The widow's common-law right of action for the death of her husband above referred to has not been abrogated by the death statute of 1923, either expressly or by *Page 159 implication. The statute does not purport to take away any rights theretofore existing. Its evident purpose was to grant a new right, — namely, a right of action for wrongful death to persons not theretofore entitled thereto. Hall v. Kennedy, 27 Haw. 626, furnishes us the clue to the intended beneficiaries. The plaintiff in Hall v. Kennedy in 1922 had no right of action in the premises, either at common law or, because of the inapplicability of the facts, under the Compensation Act. Now he is given the same right which a widow has always had. If he had had a remedy under the Compensation Act, however, the death statute would have conferred no rights upon him. Haran v.Woolley, ante p. 61. The death statute lets in a new class — with restrictions. The widow, however, derives no rights from the statute. On the contrary, the statute expressly excludes her in the instant case from the benefit of its provisions for the reason that she comes within an excepted class, namely, those having a "remedy for compensation under the provisions of chapter 209." She therefore was left to pursue her common-law remedy, or to claim compensation at her election. Not deriving her rights from the death statute, she is not limited by its provisions, which, in my opinion, apply only to its provisional beneficiaries, as above indicated.
"A statute inconsistent with the common law repeals the common law so far as it is inconsistent. `If the legislature undertakes to provide for the regulation of human conduct in respect to a specific matter or thing already covered by the common law, and parts of which are omitted from the statute, such omission may be taken generally as evidence of the legislative intent to repeal or abrogate the same.' But an intention to change the rule of the common law will not be presumed from doubtful statutory provisions; the presumption is that no such *Page 160 change is intended unless the statute is explicit and clear in that direction. The common law will be held no further abrogated than the clear import of the language used in the statute requires." 1 Lewis' Sutherland, Stat. Con. (2d Ed.) 572, § 294. "An existing common law remedy is not to be taken away by a statute unless by direct enactment or necessary implication. A statute which enlarges the remedy which the common law affords and extends it to cases for which there was no remedy at common law does not take away the common law remedy. * * * Where a statute prescribes a remedy for a matter that is actionable at common law, without excluding the common law remedy either expressly or by necessary implication, the statutory remedy is regarded as merely cumulative and either the common law or the statutory remedy may be pursued." 25 R.C.L. 1058, § 283.
What has been said above about the repeal of the common law applies with equal force to the repeal of an earlier statute. Section 3608, R.L. 1925, passed first in 1915, gives the right of election of remedies in a case like that at bar and it gives the right of subrogation under the circumstances above named. Are these provisions in any way modified by the death statute? "Subsequent legislation repeals previous inconsistent legislation whether it expressly declares such repeal or not. In the nature of things it would be so, not only on the theory of intention, but because contradictions cannot stand together. The intention to repeal, however, will not be presumed, nor the effect of repeal admitted, unless the inconsistency is unavoidable, and only to the extent of the repugnance. In Winslow v. Morton the court sums up the general principles touching implied repeals in the form of rules which it formulates as follows: (1) `That the law does not favor a repeal of an older statute by a later one by mere implication.' (2) `The implication, *Page 161 in order to be operative, must be necessary, and if it arises out of repugnancy between the two acts, the later abrogates the older only to the extent that it is inconsistent and irreconcilable with it. A later and an older statute will, if it is possible and reasonable to do so, be always construed together, so as to give effect not only to the distinct parts or provisions of the latter, not inconsistent with the new law, but to give effect to the older law as a whole, subject only to restrictions or modifications of its meaning, when such seems to have been the legislative purpose. A law will not be deemed repealed because some of its provisions are repeated in a subsequent statute, except in so far as the latter plainly appears to have been intended by the legislature as a substitute.'" 1 Lewis' Sutherland, Stat. Con. 463-465, § 247.
There is another and a stronger reason for holding that section 2681, R.L. 1925, does not amend or repeal section 3608 in the particulars named, which is shown by the following facts: on the same day, to-wit: on the second day of May, 1923, there were approved Act 245 and Act 249, the former being our present section 2681 and the latter being an Act amending the Workmen's Compensation Act, and containing in its present form a reenactment of the foregoing clause relative to election and subrogation. "Where two acts are approved on the same day the presumption is that they were approved in numerical order; but the court will take judicial notice of the facts and ascertain the actual order of approval, and, if the two acts are inconsistent, the one last approved will prevail, though it may have been the first to pass the legislature." 1 Lewis' Sutherland, Stat. Con. 322, § 180. There being nothing to guide us but the aforesaid presumption that the Acts above referred to were approved in their numerical order, it cannot be said that Act 245 *Page 162 amended Act 249.
In the view hereinabove expressed the widow still has the election of a right of action against a third party for the wrongful death of her husband and having elected to accept compensation in lieu thereof, the employer or his insurance carrier, having paid or having become liable to pay compensation awarded upon her claim, is, under the provisions of the Workmen's Compensation Act, subrogated to the rights of the widow.
In my opinion the circuit judge's question should be answered in the negative.