(dissenting). — I agree with the conclusion reached in the opinion in this cause by the chief justice to the effect that the contract set up in the defendant’s additional plea made by the plaintiff with the relief department of the defendant company’s service, is not against public policy and is not in contravention of our own statute inhibiting the making of any contract restrictive of the liability of railroad companies to their employes for injuries resulting from their negligence, and that when such contracts, and a voluntary election hy an injured employe to accept benefits from, such relief department, in accordance with, and under the terms and provisions of such relief department contract, are properly set up in a plea by a railroad company, it furnishes a valid defense in bar of such employe’s right of action against such railroad company for damages for injuries sustained by him and for which the benefits have . been voluntarily accepted and receivd by him from such relief department. The overwhelming weight of the authorities so copiously quoted from and cited by the chief justice in his opinion, so hold, and I think correctly upon? principle. The voluntary acceptance by an injured em*430ploye, after his injury, of benefits frosa such a relief-association under the terms cmd provisions of such a contract, no matter how disproportionate to the extent of his injuries such voluntarily accepted benefits may be, when urged as a defense by a railroad company, who is a party to such relief association, to a suit aganist it by such injured employe for damages for his negligent injury, presents a question purely of voluntary election by such employe between two separate and distinct remedies, both- of which, by the terms of his contract with such relief department, cannot exist in his behalf at the same time, and which remedies are, therefore, inconsistent with each other. By the provisions of such contract he is left entirely free, if subsequently injured by his railroad employer, to make his choice between the two remedies, (i) a suit against the railroad for damages for his injuries, or (2) the acceptance of the benefíts from such relief department -or association as provided for in and by Ms contract •with such relief department, but he cannot have both at the same time. The gist of the decisions sustaining such contracts as a defense in damage suits, are really founded upon this doctrine of election of remedies, and the consequent estoppel that such an election between inconsistent remedies brings down upon the party making the election. In the case of Campbell v. Kauffman Milling Co., 42 Fla. 328, 29 South. Rep. 435, we have here reiterated the rule prevailing universally: “A party cannot, either in the course of litigation or in dealings in pais occupy inconsistent positions. Upon that rule election is founded. A man shall not be allowed to approbate and reprobate . And where a man has an election between several inconsistent courses of action, he will be confined to that which he first adopts. The election, if made with knowledge of the facts, is *431in itself binding. It cannot be withdrawn without due consent. It cannot be withdrawn though it has not been acted upon by another by any change of position.” It is in recognition of this well-established rule that the courts with such unanimity hold that the voluntary acceptance by an injured employe of the benefits provided for in any by stick relief-department contarcts, itself operates as a release of any right by such injured employe to maintain an action for his injuries against the railroad company, without the execution of any formal instrument of release. I cannot, however, agree with the conclusions of the chief justice in reference to the plea interposed by the defendant in this case, or with his utterances as to what such a plea should allege or contain in order to set up a valid defense in such cases. As I understand from the opinion of the chief justice, he entertains the view in effect that in order for such a plea urging the provisions of such a contract with such a relief department as a defense to an action for personal injuries, to be available to a defendant railroad company, such a plea must allege a separate release of such railroad from its liability, entirely independent of and dissociated from such contract with the relief department, and that such separate and independent release was for a valuable consideration moving, not from the relief association under the provisions of its contract with the plaintiff employe, but from the pocket of the railroad company itself, entirely independent of such contract and of any connection that such railroad occupies as a party to or associate with such relief association. If it is the law that a railroad company must in such cases show a brand- new contract of release procured from the employe subsequent to his injury, for a new consideration moving then from the railroad alone and entirely dissociated from the employe’s con*432tract with such relief department, the question naturally suggests itself, why expend so much labor, with such a mountain of authorities to prove that such contracts made by railroad employes with relief department associations, when acted upon by the employe, furnish a valid defense in suits by such employe against the railroad for personal injuries resulting from its negligence. If there mpst be an entirety new and independent contract of release based upon a new and separate consideration moving from the railroad alone, then the contract of the employe with a relief department is entirety out of the case, becomes wholly irrelevant, and is purely an abstract proposition. Unless I misinterpret the effect of the opinion of the chief justice, this holding is in direct conflict with, and is wholly inconsistent with, those portions of his opinion that sustain the validity of such contracts with such relief departments by employes of railroad companies, and is a new departure from, and wholly in conflict with, all of the cases cited by him from other courts in sustenance of such contracts. All of these cases hold in substance that it is the election by the injured employe, subsequent to his injury, to accept benefits, not from1 the railroad company independently, but from the relief association under the terms and provisions of the employe’s contract with such association, that results in a release and waiver of 'his right of action against the railroad company who is also one of the constituent members of such relief association, and not any new and independent consideration for such release moving fromi the railroad company aolne to such injured employe. I am of the opinion that the additional plea filed by the defendant by leave of the court fully and sufficiently sets up the contract of the plaintiff with the relief department, and the acceptance of benefits thereunder by the plaintiff, *433and that if such plea should be sustained by the proofs it would defeat the plaintiff’s recovery. I think that this plea was not subject to demurrer, and that the court erred in overruling said plea. For this error I -think that the judgment in said cause should be reversed.