concurring.
This court was long ago fully committed to the holding that a receipt of all benefits provided for in the contract of the relief department of the defendant company is a complete bar to any action for damages arising from the same injury for which the relief was; received, and also that a recovery at law and payment by the company of all damages caused by the injury complained of, and a receipt of such damages by the injured employee, is a complete bar to any claim upon the relief fund arising from the same injury. These holdings were put upon the ground of the express provision of the contract for relief benefits. Some of these decisions were cited in Chicago, B. & Q. R. Co. v. Healy, 76 Neb. 786, and it was there expressly said that it was not intended to overrule those former decisions. In the case last cited it was insisted by the company that the provision of the contract with the employee, “if any suit shall be brought against said *719company, or any other company associated therewith as aforesaid, for damages arising from or growing out of injury or death occurring to me, the benefits otherwise payable, and all obligations of said relief department and of said company created by my membership in said relief fund, shall thereupon be forfeited,” was to be construed literally and literally enforced. That was the question considered and decided in Chicago, B. & Q. R. Co. v. Healy, supra. In that case the plaintiff had brought a suit against the company for damages, but had dismissed the same without prejudice to a future action before final judgment, and it was thought that to enforce the foregoing provision of the contract under such circumstances would be enforcing a forfeiture in the nature; of a penalty. This court had never gone so far as that, and so refused to enforce that provision of the contract with the construction contended for. It may be said that there is some reason for contracting on the part of the employee, that all damages that he has suffered on account of the injury having been paid by the company and received by him, the relief benefit provided for in the contract shall be considered to be thereby satisfied. This seems to be the idea of the recent legislation which provides that in case relief benefits have been paid and received by the employee that fact shall not be a bar to an action for the damages suffered, but such payments of relief benefits shall be considered as part payment of the damages suffered and may be offset in a suit to recover such damages. The forte of our former decisions, from which we have refused to depart without action hy the legislature, and in which it has been held that full payment and receipt of all damages will satisfy all claims upon the relief fund, has been much strengthened by the fact that the legislature, with full knowledge of these prior holdings, and Avhile legislating upon the general subject, has refused to change the rule established by this court. Comp. St. 1909, ch. 21, secs. 4, 5. This rule, then, still remains and has application to this case, in Avhich *720the plaintiff has recovered judgment for damages suffered by reason of the injury, and has received full payment from the company. The reasoning, then, in Chicago, B. & Q. R. Co. v. Healy, supra, to the effect that a party cannot contract beforehand under penalty and forfeiture that he' will not litigate- a claim that may thereafter arise, must be considered as it was there intended. The intention was to so apply this ruling as to justify that holding that the mere commencement of an action for damages, which was dismissed without final judgment and without the receipt of any payment of damages by the plaintiff, would not work a forfeiture of claims upon the relief fund under their contract. If the rule which we have established that full payment and receipt by the plaintiff of a judgment recovered for damages will bar claims from the relief fund predicated upon the same injury is to be changed as unjust, it must be done by the legislature, and not by the court.