concurring in part, dissenting in part. In 1950, Owens would have been barred from pursuing a workmen’s compensation claim after having filed his suit. Heskett v. Fisher Laundry & Cleaners Co., Inc., 217 Ark. 350, 230 S.W. 2d 28. It appears that he would have been barred in 1962. Gentry v. Jett, 235 Ark. 20, 356 S.W. 2d 736. Only today has this court even remotely suggested that the doctrine of election of remedies did not apply to a workmen’s compensation claim.
Obviously, I do not agree with the majority’s interpretation of Heskett. As I read it, it did involve the issue of inconsistency of common law and workmen’s compensation remedies. The first depends upon the severance of the relationship of master and servant. The second depends upon its existence. In Heskett, we quoted from Horovitz on Workmen’s Compensation in his recognition that the weight of authority gives the employee the choice of suing the employer at common law or accepting compensation. In reaching our conclusion in Heskett, finding the rule of Boek v. Wong Hing, 180 Minn. 470, 231 N.W. 233, 72 ALR 108, to be sound, we held, not just that the Workmen’s Compensation Act did not bar the common law action, but that the employee was entitled to elect to either claim compensation under the act or treat the willful assault as a severance of the employer-employee relationship and seek full damages in a common law action. We held that Heskett had elected to pursue the common law action. We quoted extensively from Boek. Some of the language we found to constitute sound reasoning was:
*** By committing a felonious assault upon a servant the master willfully severs the relation of rrtaster and servant and should be held to have left it to the election of the servant either to consider the relation still existing and seek redress through the Compensation Act, or else to consider the relation terminated and seek redress under the common law.
How much more inconsistent could remedies be? The inconsistency is at least as great as that requiring election between specific performance of a contract and damages for its breach and as the pre-Commercial Code requirement of election between repossession of property conditionally sold and collection of the balance of the sale price. See Sutterfield v. Burbridge, 223 Ark. 854, 268 S.W. 2d 900; Roy v. Notestine, 216 Ark. 447, 226 S.W. 2d 66. Heskett would certainly have been hard put to reverse his course and seek workmen’s compensation in 1950.
We said something in Gentry v. Jett, 235 Ark. 20, 356 S.W. 2d 736 that is disregarded by the majority. That was:
We have likewise concluded that appellant’s suit in Federal Court did not amount to an election of remedies as contemplated under Ark. Stats. § 81-1304. Undoubtedly, under this section, if appellant had not sued the railway company, his suit against appellee in tort would have been an election and thereafter he could not have maintained a claim for compensation, assuming, of course, that appellant sued as an employee of Jett. However, when appellant obtained a judgment against the railway company in tort, he thereby (under the Oklahoma law to which we must give full faith and credit, the action being in tort) released all other tortfeasors (including appellee) from liability. So, when appellant filed his complaint against appellee in tort there was no such cause of action in existence. That being true appellant did not have two causes of action to elect between — he had only the right to claim compensation. ***
That is the holding in Gentry in capsule. I agree that a different result would have been an unwarranted extension of the doctrine of election of remedies, but there is clear recognition in Gentry that a tort suit against the employer would have barred a claim for compensation.
I have read and reread Ark. Stat. Ann. § 81-1318 (e) and fail to find even a remote possibility that it could have any application whatever to this or any similar situation. That provision comes into play only when recovery in an action at law has been denied on the sole ground that the employer and employee were subject to the act, i.e., that the Workmen’s Compensation Act provided the exclusive remedy. That is not the case here. If a claimant met the bar of this section of this statute in a common law action, obviously he had no election and the holding in Gentry would apply.
There should be no doubt that there was an election of remedies here. In Butler Bros. v. Hames, 193 Ark. 77, 97 S.W. 2d 622, in holding that an action to recover a debt for merchandise purchased was an acknowledgment and ratification of a sale, and inconsistent with a later suit to set aside the sale of merchandise by the debtor which proceeded on the theory that the creditor had repudiated the transaction, we quoted from 20 CJ 9, § 8, viz:
“ *** Ordinarily, the question of inconsistency may be determined by a consideration of the relation of the parties with reference to the rights sought to be enforced as asserted in the pleadings. * * * To make them inconsistent one action must allege what the other denies, or the allegation in one must necessarily repudiate or be repugnant to the other. It is the inconsistency of the demands which makes the election of one remedial right an estoppel against the assertion of the other, and not the fact that the forms of action are different.”
An election once made is irrevocable, even though it has not been acted upon by another to his detriment, and is a conclusive and absolute bar. Roy v. Notestine, supra. The election is made when the first pleading is filed. Eastburn v. Galyen, 229 Ark. 70, 313 S.W. 2d 794; Belding v. Whittington, 154 Ark. 561, 243 Ark. 808; Bigger v. Glass, 226 Ark. 466, 290 S.W. 2d 641. It does not matter that a decision on the merits has not been reached in the common law action and its dismissal without prejudice does not affect the election made by filing suit. Belding v. Whittington, supra; Eastburn v. Galyen, supra; Bigger v. Glass, supra.
I submit the circuit judge was right and he should be affirmed. I concur on the motion to dismiss.