(dissenting). I think it would logically follow from the construction of section 15, part 3, of the workmen’s compensation law (2 Comp. Laws 1915, § 5468), indulged in by the Chief Justice in this case, that an employee negligently injured by a stranger while in the performance of his master’s service could enforce compensation from such master, even though he had secured by an amicable and voluntary settlement full compensation from such stranger for all damage done him by such negligence, because if we follow the construction of the Chief Justice the employee had not “proceeded at law” within the meaning of the section. If this plaintiff received and accepted money as compensation under the act from the *710employer or the insurer, and is not held to have elected under the act, because she had not instituted a proceeding by so doing, then an employee may accept by voluntary settlement with the wrongdoer his damages for the tort committed upon him, without having elected under the act, because he has not instituted a proceeding in court to secure such damages. I find no provision of the statute which would authorize either the board or the court in reducing the amount recovered by the amount already received, although equitable considerations would require that to be done. The construction when adopted by this court must be of universal application, and must apply as well where compensation as compensation is accepted without formal action by the employee or dependent as it would where money is received in settlement from the wrongdoer without formal proceedings to enforce the paymentoOf the same. I cannot agree with a construction of this section which by any possibility would reach the result indicated. It is at variance with the spirit and purpose of the act, and, in my judgment, in conflict with its language.
This section of our act is taken almost literally from the English act of 1897 (60 and 61 Viet. chap. 37). In 1903, several years before the passage of our act, the Scottish court had this provision under consideration in the case of Mulligan v. Dick & Son, 41 Sc. L. Rep. 77. In this case Mulligan was an employee of Dick & Son, contractors for the mason work in the repair and reconstruction of the Grosvenor restaurant in Glasgow; Baird & Son were contractors for the iron and steel work. Mulligan, while so employed, was injured by the fall of a hammer through the negligence of an employee of Baird & Son; they voluntarily settled with him and paid him £17, 2s, and took a receipt which recited that it was “without prejudice” to his claim under the workman’s compensation act. *711Thereafter he brought proceedings against his employer under the compensation act, and it was urged in his behalf that he had not proceeded against Baird & Son because he had brought no action. Compensation was denied him, the Lord President, in answering the contention of the employee, saying:
“The main argument addressed to us against the judgment of the sheriff-substitute was that in order to this provision applying the words ‘proceed at law’ involve the institution of some proceeding by action or otherwise, and that inasmuch as there was. no such proceeding in this case the alternative stated was not raised, and the provision did not apply. But it appears to me that the words ‘proceed at law’ are not used, in the technical sense of taking proceedings in a court. It seems to me that the meaning conveyed by the word ‘proceed’ in the act might be more shortly expressed by the word ‘go,’ and that if the workman goes against one party he has elected to take one of the remedies open to him, and that if he takes his common-law remedy he cannot also claim his statutory remedy. I therefore think that the argument that what was meant by the . 6th section was some legal or judicial procedure, and not an extra-judicial settlement of a claim duly made, is not well founded, and that the conclusion at which the sheriff-substitute has arrived is a sound one.”
Lord Adam, in agreeing with the Lord President, said:
“In these circumstances, as your Lordship has pointed out, the appellant had two remedies — he could either proceed for damages against the persons who were responsible for the fall of the hammer, that is, against Messrs. Baird, or he could claim compensation from his own employers under the workmen’s compensation act. The act did not deprive him of his right to damages if he could make out fault in the person who caused the accident. But here section 6' comes into operation, and provides that he may, in his option, ‘proceed either at law against that person to recover damages, or against his employer for compensation *712under this act, but not against both/ That is what the act says, and the question here is, Did the workman exercise his option? What happens was that he made a claim against Messrs. Baird for damages, and received payment of £17, 2s, and the question is whether in doing so he exercised his option under the act. I did not understand Mr. Campbell to dispute that this was a proceeding for the recovery of damages, but he maintained that it was not a proceeding of the kind specified in section 6, which would bar a claim against the employers under the act. The argument went the length of maintaining that no matter how large the claim, and no matter how successful it might be in obtaining payment, if it was not in the form of an action at law it was not a proceeding contemplated by the act, because the provision of the act means that nothing but an action at law will bar the claim against the employers. The appellant founds on the words of the act ‘proceeding, either at law against that person to recover damages/ and says that the option which the workman must exercise lies between proceedings at law — i.e., an action in court, and proceedings under the workmen’s compensation act. I think that construction is quite wrong, and that the act does not mean proceeding at law in that sense. The true construction of the act is that an alternative is given between a claim under the ordinary common-law liability, in contradistinction to proceedings under the act. The statute says that if you take proceedings against the party in fault, that bars you afterwards from proceeding against your employers for compensation. I think that it cannot be disputed here that the appellant did proceed against the party at fault, and therefore exercised the option given to him under the act.”
Lord M’Laren also agreeing, said:
“I might also say that I think the word ‘proceed’ is sufficiently comprehensive to include the recovery of damages by voluntary agreement as well as recovery under a decree.”
Lord Kinnear, the other member of the court, said:
“It appears to me that the statute offers a perfectly *713clear option to the workman in circumstances like the present. He may either go against the person responsible for the injury, who in the running title of the 6th section is conveniently called the stranger, or he may go against his employer for compensation under the act, but he cannot go against both. Therefore if he has made- a claim against the stranger the statute says that he shall have no claim against his employers.”
In the case of Dettloff v. Hammond, Standish & Co., 195 Mich. 117, the plaintiff had entered into a contract which had not been approved by the board. We held that it contravened the public policy of the State to contract without such approval and that the contract without such approval was void and unenforceable. But in that case the plaintiff had received no compensation, nor had she secured to herself compensation by an enforceable contract. She, therefore, had not elected. In the instant case the testimony tends to show that the plaintiff had been paid, and had received as compensation under the act three weekly payments from the employer (who had been reimbursed by the insurance company), and several other payments from the insurance company. This, in my judgment, was an election under the act; she had “proceeded” against the employer within the contemplation of section 15, part 3 (2 Comp. Laws 1915, § 5468).