(dissenting).
A.R.S. § 23-906 provides that unless the employee rejects workman’s compensation by written notice on forms to be provided by the employer then workman’s compensation is the employee’s exclusive remedy against the employer.
If postings are made by the employer and the forms are available, then the employee is presumed to have made an election to accept workmen’s compensation by failing, prior to injury, to reject it. If posting is not made as is conceded to be the case here or the forms are not available, then the workman has the option, after injury or accident, of deciding whether to accept the benefits of the Workmen’s Compensation Act. He may, if he wishes, reject the benefits of the Workmen’s Compensation Act and bring an action for neg*391ligence against his employer. A.R.S. § 23-906 is silent as to whether the options provided therein may be exercised by employee’s surviving spouse or personal representative in the event of his death. A. R.S. § 23-1024, however, reads:
“A. Am employee or his legal representative in the event death results, who accepts compensation waives the right to exercise any option to institute proceedings in court against his employer.
“B. An employee, or his legal representative in event death results, who exercises any option to institute proceeding in court against his employer waives any right to compensation. As amended laws 1968, 4th S.S., Ch. 6, § 39, eff. Jan. 1, 1969. ”
Notwithstanding the provision of the predecessor statute to A.R.S. § 23-1024 which was not materially different from the present statute, this court in Corral v. Ocean Accident and Guarantee Company, 42 Ariz. 213, 23 P.2d 934, 937 (1933) held that “[t]he employee’s personal representative is given no right of option. The right is personal to the employee.”
The construction of the statute given by Corral, supra, goes further than to merely hold that the surviving spouse or personal representative cannot make an election if the workman is killed in the accident. Corral makes that election for them and requires them to pursue the benefits under the Workmen’s Compensation Act as their only remedy even though had he lived the employee would have had the option to bring suit against the employer.
The holding of Corral, supra, ignores and makes surplusage the phrase “or his legal representative in the event death results” in A.R.S. § 23-1024. We believe the court misconstrued the statute in Corral, supra. A plain reading of A.R.S. § 23-1024(A) and (B) gives not only the employee but his legal representative the option to accept compensation or to institute proceedings in court in those cases where the employer, as it is stipulated here, has not complied with A.R.S. § 23-906. I would hold, contrary to our previous holdings, that A.R.S. § 23-1024 grants those options contained in A.R.S. § 23-906 not only to the employee should he survive the accident, but to his legal representative, or in the case of Annie Jackson, the surviving spouse, in the event death occurs, and that Corral v. Ocean Accident and Guarantee Company, supra, and cases following such decision should be overruled.