(specially concurring).
The Industrial Commission, on rehearing, denied compensation to the widow of James Monroe Worthington on the specific ground that he was not in the employ of the Little Horn Mining Company at the time of the fatal accident. That is the issue. These are the facts.
Lipscomb, Sturges and others were partners in the Little Horn Mining Company. Lipscomb, a druggist, was the managing partner. In the last of May, 1955, Worthington was hired as foreman of the Little Horn Mine, at $300 per month. The mine was not yet in production and he oversaw the construction and mining operations. Worthington quit his job as foreman of the Little Horn Mine the end of September, 1955, in order to go to Nevada with Sturges to see about a new mine. He was paid $14 per day. This was not a venture of the Little Horn Mining Company. After they *318returned Worthington went with Lipscomb to the mine several times. The Little Horn Mining Company’s wage records show checks to Worthington of $60 on November 30, 1955, and $15 paid after his death for the day on which he was killed.
Brummett, who lived with the Worthingtons, testified that he worked at the Little Horn Mine during the period (end of May — end of September) Worthington was foreman. He went to Nevada with Sturges and Worthington in October, 1955. He testified that after their return Lipscomb and Worthington went to the Little Horn Mine several times and that Lipscomb had asked him if he would go, too, saying he would make it worth his while. Brummett was working full time elsewhere and could not go.
Mrs. Worthington testified that her husband had no income aside from his earnings, and that as far as she knew he was being paid for his work with Lipscomb.
Lipscomb picked up Worthington at his home between 5:00 and 6:00 a. m. on January 5, 1956. The accident occurred on the way back from the Little Horn Mine that evening, killing them both.
A wrongful death action against the estate of Lipscomb was filed on behalf of Worthington’s estate on May 17, 1956, by his widow as administratrix. An action for recovery of funeral and burial expenses was instituted against an insurance company by the estate. The answer of the Lipscomb estate asserted the defense that Worthington was an employee of Lipscomb and his associates in the Little Horn Mining Company, and that “the exclusive remedy of plaintiff against the employer of her deceased husband is under the provisions of said policy by filing her claim thereunder with the Industrial Commission of Arizona ifc %
The widow, as administratrix, petitioned in the probate court for authority to accept on behalf of the estate $7,000 “in full settlement of any and all claims which the estate may have” against either the estate of Lipscomb or the insurance company. This was granted and a stipulation of dismissal of the two actions was entered; there was no judgment of any kind entered by the court.
Mrs. Worthington then filed her widow’s claim for compensation with the Industrial Commission. The Commission’s first order denied compensation on the ground that “applicant has elected another remedy and waived the provisions of the Workmen’s Compensation Act.” She petitioned for a rehearing.
A memorandum prepared by Robert Park, assistant counsel for the Commission, alertly advised it that in his opinion “I cannot see that the widow had any election under the law. * * * If she had no right of election, then she would still be *319entitled to the benefits afforded by the Workmen’s Compensation Act.”, giving his legal reasons therefor. He recommended a rehearing on the questions of employment and compensability.
The Commission’s final order upon rehearing denied compensation on the ground, that Worthington was not in the employ of the Little Horn Mining Company at the time of the accident.
I concur in the opinion of the court that the facts elicited at the rehearing do not permit of the arbitrary conclusions that Worthington was not in the employ of the Little Horn Mining Company at the time of his death. Thus, the case must be returned to the Industrial Commission.
I concur in the holding that the filing and dismissal of the wrongful death action against the employer on behalf of Worthington’s estate neither operated as an “election” nor “estopped” his administratrix from claiming her widow’s compensation under the Workmen’s Compensation Act.
This court has held that an employee’s election between workmen’s compensation and common-law recovery against the employer is made before he is injured.
“ * * * If the employee fail to reject the compensation law prior to injury, he is conclusively presumed to have elected to take compensation. * * * The employee’s personal representative is given no right of option. The right is personal to the employee.
“If an employee is killed and has not during his lifetime rejected the compensation law, his rights and those of his dependents are conclusively and irrevocably fixed by the compensation law and must be administered by the Industrial Commission. * * * ” Corral v. Ocean Accident & Guarantee Corp., Ltd., 42 Ariz. 213, 220, 23 P.2d 934, 936, 937. (Emphasis supplied.)
Also see Coyner v. Industrial Commission, 77 Ariz. 210, 269 P.2d 712. See Jeune v. Industrial Commission, 77 Ariz. 410, 274 P.2d 85, on the proposition that a civil suit against the employer does not bar one’s right to workmen’s compensation, where the suit was unsuccessful because the trial court found that workmen’s compensation was the only applicable remedy.
Obviously there can be no election made by the employee or his dependents between workmen’s compensation and recovery at common law after the injury has occurred. An election cannot be made unless the remedies under consideration are inconsistent and are both open to the one making the election.
Neither could the institution of the wrongful death action on behalf of Worthington’s estate have here estopped his widow from claiming her compensation under the Act.
*320The wrongful death statute under which the civil action was brought provided that recovery be distributed according to the rules of intestate succession; this could theoretically include the widow and all children, whether “dependents” or not.
The Workmen’s Compensation Act is primarily for the protection and benefit of the employee. Its provisions bind only the employee and his dependents, as defined by the Act. It could not possibly be construed so as to bar anyone other than the employee’s dependents from wrongful death civil recovery where the employee has elected to accept workmen’s compensation. Therefore, Worthington’s adult children, who were not “dependents” under the Workmen’s Compensation Act, were entitled to benefit by any recovery in an action for wrongful death.
Mrs. Worthington instituted the wrongful death action in her capacity as administratrix, on behalf of the estate. The effect of the Workmen’s Compensation Act’s bar on the distribution of any recovery was the problem of that court. Difficulties regarding conflicting aspects of the two acts might be the problem of the legislature. But the administratrix had no control over any possible legal distribution to herself personally. She was merely performing her duty to the estate in instituting the suit.
Also, the mere settlement and stipulation of dismissal of a wrongful death action by the estate could not be held to be binding on the rights of the dependents of a deceased employee, where he had elected to accept workmen’s compensation. Even assuming that the administratrix had any personal right in the proposed wrongful death recovery, no effort was made by the employer to have the settlement bind her personally as to her right to workmen’s compensation benefits. A compromise or settlement between the employee or his heirs and the employer is of no effect unless approved by the Industrial Commission. A.R.S. Section 23-1025. Doyle v. Old Dominion Co., 44 Ariz. 123, 34 P.2d 401.
The award has properly been set aside.