
    VAUGHAN et al. v. SOUTHWESTERN SURETY INS. CO.
    (No. 3065.)
    (Supreme Court of Texas.
    Dec. 11, 1918.)
    1. Master and Servant <S=»388 — Workmen's Compensation Act — Beneficiaries — How Determined.
    Under Workmen’s Compensation Act 1913, § 8 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5246kk), declaring that compensation shall be paid to legal beneficiaries to be distributed according to the law of descent, the beneficiaries as well as the apportionment must be determined by that law, and not by article 4698, Vernon’s Sayles’ Ann. Civ. St. 1914, governing recovery of damages for wrongful death.
    2. Constitutional Law <§=^70(3) — Judicial Function — Wisdom of Law.
    The wisdom of an act is not a judicial question.
    Error to Court of Civil Appeals of Ninth. Supreme Judicial District.
    Proceeding for workmen’s compensation by F. G. Vaughan and others against the Southwestern Surety Insurance Company, as insurer. From a judgment of the Court of Civil Appeals (195 S. W. 261) in favor of the insurance company, the plaintiffs bring error.
    Reversed and rendered.
    C. W. Howth, F. G. Vaughn, and W. A. Williams, all of Beaumont, for plaintiffs in error.
    McDonald Meachum, W. W. Meachum, Jr., AVoods, King & John, and Cole & Cole, all of Houston, and McDonald & Wayman, of Galveston, amici curise.
    Andrews, Streetman, Bums & Logue, of Houston, for defendant'1 in error.
   PHILLIPS, C. J.

In fixing the compensation to be paid for injury to an employee of a subscribing employer, sustained in the course of his employment and resulting in death, the Workmen’s Compensation Act of 1913 (Acts 83d Leg. c. 179 [Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5246h-5246zzzz]) omitted any express designation of the beneficiaries entitled to receive the compensation. It merely declared (section 8; art. 5246kk) that it should be paid to “the legal beneficiary” of the deceased employee, with a proviso in the'following language:

“Provided, that the compensation herein provided for shall be distributed according to the law providing for the ’distribution of other property of deceased.”

The question here is, how shall the beneficiaries in such cases be determined,- — by the law of descent and distribution, or the law governing the recovery of damages for negligent or wrongful injury resulting in death — the death injury statute, Article 4698?

The act was amended in this particular in 1917, Acts 35th Leg. c. 103, § 8a (Vernon’s Ann. Civ. St. Supp. 1918, art. 5246 — 15), by expressly naming the beneficiaries. This case arises under the original act.

The solution of the question is found in the proviso. It says that the compensation shall be distributed “according to the law providing for the distribution of other property of the deceased.” Interpretation can add nothing to the clearness of this language. It means the law governing the distribution of the decedent’s property, not a law authorizing the recovery of damages by certain kindred as their property. The only law ,we have regulating the distribution of the property of an intestate decedent is that comprised by our statutes of descent and distribution. That is plainly the law referred to. It-is, in effect, made a part of the act.

It is urged, however, that at all events the proviso only means that the compensation shall be apportioned according to that law, and that the beneficiaries among whom it is to be thus allotted are to be ascertained from the death injury statute. The act in no wise relates the subject to that statute by any express provision. If it determines the beneficiaries under the act, it is wholly by implication.

Upon what theory the death injury statute, to the exclusion of another relevant law, is for this purpose by mere implication to be read into the act, we have some difficulty in perceiving. If it be on account of any supposed analogy — and no other ground can well be advanced — it is to be observed that the act, in respect to injuries sustained by those to whom it applies, was intended to entirely supplant that statute as to all actual damages thereunder recoverable. Its purpose was to work in such cases a distinct change in the law. Its provision for the compensation allowed is founded upon a different theory. The compensation itself is determined by another method. Under the death injury statute, actual damages were not recoverable unless pecuniary loss to the plaintiffs was shown. Under the act, the compensation allowed the beneficiaries entitled is absolute, regardless of whether they have sustained any such loss.

With the entire scheme of the death injury statute in its application to all such cases thus entirely abandoned, in the absence of any express provision the reasonable presumption is that the Legislature did not intend it to govern the operation of the act in any particular. Certainly it should not, by mere implication, control its operation in this particular, as against a law to which the subject is by the act expressly related.

If the contrary be held and the beneficiaries be thus determined, no rule would be afforded for the apportionment of the compensation. The death injury statute is silent on the subject. All damages recoverable under it must be allotted by a court or jury. The law of descent and distribution, in such event, would have to be consulted for the apportionment, since the act, except in its reference to that law, makes no provision in that regard. Under such construction, the operation of the act would, in this one particular, be related to two other distinct laws, one for determining the persons- entitled to the compensation, and another the proportion of their respective shares. Under the terms of the act such a purpose is not to be imputed to the Legislature in its adoption.

Apart from these considerations, this construction denies to the language of the proviso its natural effect. Its plain requirement is that the compensation shall be distributed according to the law of descent and distribution. The clause contains no qualifying expression, and no limitation upon the full operation of such law is imposed. It therefore means that the distribution shall be in all respects in accordance with that law. A distribution could not be made “according to” that law unless the law were given full effect — not merely a part of it, but all of it. Giving it such effect, it necessarily determines not only the apportionment, but the persons entitled to the property.

In the face of the plain provision of the act we are not at liberty to speculate upon the intention of the Legislature in its enactment. Nor is it necessary that we attempt to reconcile any inconsistencies that its operation may entail. The wisdom of the act is not a judicial question. The argument that it may allow certain kindred of the deceased employee to share in the compensation who were denied any right of action under another statute, cannot prevail over its express terms. It may in this respect operate unfairly, but that was for the determination of the Legislature. As is said by a competent authority, the remedy for a harsh law is not judicial interpretation, but its amendment or repeal.

The judgments of the District Court and Court of Civil Appeals are reversed, and since the case is here upon an agreed statement, judgment will be rendered for the plaintiffs in error for the amount stipulated in the statement with legal interest. 
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