Appeal from an order sustaining a demurrer to the complaint. The salient facts disclosеd by the complaint are that plaintiff’s employe,. Weber, while in the discharge óf his duties on June 16, 1921, wаs instantly killed by an electric current caused by the negligent construction of defendant’s power line over and across the telephone lines of plaintiff; that plaintiff and its said employe were operating under the Workmen’s Compensation Law (Rev. Code 1919, §§ 9436-9491) ; that a claim for compensation was made, and an award of $3,010 granted, under said law to the widow and child of said employe, for which plaintiff is liable; that plaintiff brings this action for its own 'benefit and for thе benefit of the personal representative of deceased, under the provisions of chapter 416, Laws 1921, claiming $25,000 damages.
Prior to the enactment of that chapter, section 9446, Rev. •Code 1919, read as follows:
*464 “Whenever an injury for which compensation is payable under this article shall have been sustained under circumstances creating in some othеr person than the employer a legal liability to pay damages in respect therеto, the injured employe may at his option either claim compensation or prоceed at law against such other person to recover damages or proceed against both the employer and such other person, but he shall not collect from both; and1 if compensation is awarded under this article, the employer having paid the compensation, or having become liable therefor, may collect in his own name оr that of the injured employe, from the other person against whom legal liability for damagеs exists, the indemnity paid or payable to the injured employe!’
Chapter 416, Laws 1921, reads the same down to the above italics, and concludes as follows:
“Or his personal representative, if deceased, from' the other person against whom legal liability for damage exists the amount of such liability and shall hold for the benefit of the injured еmploye or his personal representative, if deceased, the amount of damаges collected in excess of the amount of compensation paid such emрloye or his representative, plus the necessary and reasonable expense of collecting the same.”
This act did not take effect until July 1, 1921, -or 15 days after the death of Weber. This action was not begun until September, 1921, and the sole question presented is whether said' сhapter 416 applies to this action. We are of the opinion that it does.
•Beforе the amendment a cause of action existed against the third person. The same cаuse of action, viz. a cause of action for negligence, still exists since the amendment. Before the amendment the action could have been brought against the third' person by thе injured person or his personal representative, and, in case of an award, by the еmployer, to recover the amount of the award. Now, in addition thereto, the employer may bring an action to recover the amount of the award for his own benefit, and to recover the excess damages for the benefit of the injured' person or his personаl representative. The only change is that, for the excess portion of the liability beyond the amount of the-award, the action may be maintained by the employer as trustee fоr the injured person or his personal representative.. No new or
In 25 R. C. L. 791, we find the following well-recognized exрosition of the law:
“When a new statute deals with procedure only, prima facie, it applies to all actions — those which have accrued or are pending and future actions. * * * A statute which furnishes a new remedy, but does not impair or affect any contractual obligations, nor disturb any vested rights, is naturally applicable to proceedings begun after its passage, though relating to acts done previously thereto.”
The order appealed from is reversed.