The appellant contends that the trial court erred in allowing an amendment to the complaint. Sec. 2394 — 19, Stats., provides:
. . Within twenty days from the date of the order or award, any party aggrieved thereby máy commence, in the circuit court for Dane county, an action against the commission for the review of such order or award, in which action the adverse party- shall also- be made defendant. In such action a complaint, which shall state the grounds upon which a review is sought, shall be served with the summons. . . . Upon such hearing, the court may confirm or set aside such order or award; and any judgment which may theretofore have been rendered thereon; but the same shall be set aside only upon the following grounds: .
“(1) That the commission-acted without or in excess of its powers.
“(2) That the order or award-was procured by fraud.
‘ “(3) That the findings of fact by the commission do not support the order or award.”
The complaint alleged “that the defendant, the Industrial Commission of Wisconsin, acted without and in excess of its powers in making the following finding:”. — after which the first finding was set out. With a like introduction each of the six findings made was set out. The contention of the appellant is that each of the separate paragraphs constitutes a causé of action, and that the introduction by way of amendment of the matter relating to the settlement was the introduction of a new cause of action, and therefore not permissible because by the terms of the statute such action *33was not brought within twenty days of the date of the order or award, as provided in the statute.
We regard this as entirely too technical and restrictive a construction upon the provisions of the statute in question. There is only one cause of action — that to review the award of the Commission. It may proceed upon any of three grounds, and not upon other grounds. The matter brought in by way of amendment alleged additional facts upon which the plaintiff sought to maintain its allegation that the Commission had acted without or in excess of its powers. There was but one cause of action and not six. In making the award the Commission could act but once, without or in excess of its powers. Inasmuch as the amendment introduced no new cause of action, but set out additional facts upon which the plaintiff’s cause of action might be maintained, reference to cases holding that where a cause of action is barred by the statute of limitations it cannot be introduced by way of amendment to an action begun before the statute applied, have no bearing upon this question. Had the plaintiff sought to introduce by amendment facts which tended to show that the award should be set aside because procured by fraud, or that the findings did not support the award, a different question would be presented, as to which we make no intimation.
The second contention of appellant is that the court erred in holding that Merwin elected to pursue his common-law. remedy against Brah, and the plaintiffs were thereby released from liability for compensation. ■
Sec. 2394 — 25, Stats. 1915, provides:
“1. The making of a lawful claim against an employer for compensation under sections 2394 — 3 to 2394 — 31, inclusive, for the injury or death of his employee shall operate as an assignment of any cause of action in tort which the employee or his personal representative may have against any other party for such injury or death; and such employer may enforce in his own name the liability of such other, party.
*34“2. The making of a claim by an employee against a third party for damages by reason of ah accident covered by sections 2394 — 3 to 2394 — 31, inclusive, shall operate as a waiver of any claim for compensation against the employer.”
• This, assignment of error involves the contention that, by accepting the medical, surgical, and hospital services furnished by the plaintiffs, Merwin had made an election under the provisions of sub. 1, sec. 2394 — 25.
In the month of August, 1916, the attorney for Merwin wrote several letters to Harloff in relation to Merwin’,s claim. On August 17th he wrote:
“What agreement or terms have you come to with Mr. Brah in relation to the personal injury suit of Harry Merwin? . . . Mr. Merwin is desirous of having the same adjusted with as little delay as possible, and if no action against Mr. Brah-will be successful, that we can have the same adjusted by your company.”
On August 30th he wrote:
“Unless some substantial offer of settlement is made, we will have to proceed to a hearing before the Industrial Commission- to adjust the-same.”
On September 15th he wrote:
“I have been waiting for a reply concerning the Merwin matter, regarding which some time ago you stated that undoubtedly the same would be settled within a short time. I wish you would give me full and exact information regarding Mr. Brail’s attitude towards this case and what he intends to do regarding settling the same, so that I may be in position to proceed accordingly.”
On September 19th Merwin settled vuth Brah, executing a full and complete release.
(Admitting that the medical, surgical,. and hospital services rendered constitute compensation in ordinary cases, we are of the opiiiion that the Industrial Commission was in error in holding that acceptance of .such aid under .the *35circumstances of this case constitutes an election under the provisions of sec. 2394 — 25. We shall not attempt to lay-down a rule which shall apply to all cases. Whether or not the injured employee has made an election under this provision of the statute is a question of intention in each case, and each case must therefore rest upon its peculiar factsj It may be said, however, that in any case the injured employee must do something which amounts to an election on his part to claim satisfaction either from his employer or the negligent third party for the injury which he has sustained. Until he has done something which evidences his intention to pursue either the one course or the other the choice remains. open to him. The passive acceptance of medical, surgical, and hospital aid did not in this case amount to such an election. When taken to the hospital he was unconscious and in no position to make an election. How can an election be inferred under such circumstances ? At what point in his convalescence can it be said that acceptance of. such aid constituted an election to claim satisfaction of his employer? The statute should be so construed as to give the employee a choice free from any restraint. The acceptance of temporary benefits, although in this case extending over a period of eleven weeks and amounting to a considerable sum, did not constitute such an election. The evidence, including the letters of his attorney, shows plainly that he wavered in his choice, and that when he did choose he chose to proceed against Brah. Procedure against the third party is made by the terms of the statute to operate as a waiver of any claim for-compensation against the employer.
The trial court therefore correctly held that the award of the Industrial Commission should be vacated and set aside.
By the Court. — Judgment affirmed.