DISSENTING OPINION
STORCKMAN, Judge.The majority opinion overlooks or, at least, gives no weight to the fact that the Division of Workmen’s Compensation accepted jurisdiction of the employee’s claim and decided the claim on the merits.
The statement in the fourth paragraph of the opinion that “no contention is made now that plaintiff’s injuries were in fact the result of an accident within the compensation act” is misleading and hardly accurate. In the instant case the defendant pleaded the decision of the Commission which was affirmed by the Circuit Court and the St. Louis Court of Appeals as res judicata and an estoppel in bar of the maintenance of this suit, and alleged that the jurisdiction of the Commission was exclusive.
Respondent’s original brief on appeal states its contention in this fashion: “Where both employee and employer have elected to accept the provisions of the Missouri Workmen’s Compensation Law, the employer is released from all other liability for work-connected injuries whatsoever. If an employee has any rights or remedies, they are within the exclusive jurisdiction of the Industrial Commission, and the Circuit Court has no original jurisdiction of an injury claim by the employee against the employer.”
Before the Court en Banc the respondent filed a brief in reply to appellant’s supplemental brief in which this additional statement of its contention was made: “The non-accidental injury of appellant was within the application of the Workmen’s Compensation Law. He invoked the exclusive jurisdiction of that law, tried his case on the merits, and such proceeding for compensation constituted his remedy. The fact that he lost his case neither deprived the Division of Workmen’s Compensation of its proper jurisdiction, nor affected the statutory release of the employer from all other injury actions whatsoever, so as to confer jurisdiction of a negligence case arising out of the same occurrence in the Circuit Court.”
Thus the defendant presents on this appeal the broad contention that the compensation act is wholly substitutional for all common-law remedies of an employee against his employer for injuries connected with the work where both are deemed to have accepted the Act. The defendant also presents the narrower issue that the Division assumed jurisdiction of the claim, decided its merits and that such decision is an adjudication in bar of the instant action in circuit court.
This latter contention is more clearly pointed up in respondent’s reply brief filed in banc and hence is not developed in the division opinion. The facts are stipulated and the judgment should be affirmed on the narrow grounds of res judicata and estop-pel by judgment.
The plaintiff filed his claim with the Division on the theory of a compensable injury of which the Division had jurisdiction. The pertinent allegations of the claim are: “IS. How accident happened, cause, and work employee ¡was doing for employer at the time. While in scope of employment as a mechanic, claimant was working on a 1963 Pontiac with a V-8 motor. In order to lift the cylinder head, he sat on the radiator of the car, facing the motor with both feet off of the floor. His left foot was on the inside of the frame part of the car and lower than his right foot which was up on the motor block. He reached forward with his left hand on the lower part of the cylinder head and *199his right hand on the upper part. The cylinder head weighed an estimated 60 to 70 pounds. In this position he lifted the cylinder head 3 or 4 inches and it caught in some way unknown to him, causing him to exert unusual force and sustain an unusual strain, thereby causing the above-described injuries.”
There is no question but that this paragraph is a sufficient pleading of an injury by “accident” arising out of and in the course of the claimant’s employment. If his proof supported his pleading, he would be entitled to an award of compensation because the pleading described an unexpected or unforeseen event happening suddenly and violently and accompanied by an abnormal or unusual strain. Sections 287.020 and 287.120, RSMo 1959, V.A.M.S.; Crow v. Missouri Implement Co., Mo., 307 S.W. 2d 401, 405 [2]; Harryman v. L-N Buick-Pontiac, Inc., Mo.App., 402 S.W .2d 828, 831 [6]. It should be noted that the description pleaded does not use the word “accident”, and that is not necessary because the statutes and decisions specify the kind of injuries covered in that category.
The plaintiff’s testimony tended to support his pleaded claim, but there was conflicting testimony. The Commission simply did not believe his testimony. The pertinent findings in the Final Award Denying Compensation were: “We find from all of the evidence that the employee, Grover C. Harryman, did not sustain an accident on or about February 19, 1963, arising out of and in the course of his employment with L-N Buick-Pontiac Inc., as alleged. We specifically find from the credible evidence that the engine head which was being removed from a Pontiac automobile on that date did not catch or hang up as it was being removed and, further, that the employee did not sustain an abnormal or unusual strain.” Emphasis added.
It is this final award that was affirmed by the Circuit Court and by the St. Louis Court of Appeals. Harryman v. L-N Buick-Pontiac, Inc., Mo.App., 402 S.W.2d 828.
The employee invoked the jurisdiction of the Division of Workmen’s Compensation, the Commission accepted jurisdiction and made a final adjudication on the merits adverse to the employee. This became a final judgment in the Circuit Court and was affirmed on appeal. This is a judgment on the merits which exhausts the plaintiff’s remedy and constitutes a bar for any further redress growing out of the same transaction. State ex rel. National Lead Co. v. Smith, Mo.App., 134 S.W.2d 1061, 1067-1068 [12-14]; Harger v. Acme Fast Freight, Inc., Mo., 336 S.W.2d 109, 113[5].
The finding by the Industrial Commission that the employee “did not sustain an accident” in these circumstances does not mean that the employee’s pleading was insufficient to describe an event within the coverage of the Act, but simply that the employee’s evidence in support was incredible. The majority opinion gives every employee whose claim is denied, on the merits or otherwise, a right to prosecute a common-law action in the circuit court for the same claim and injury because the decision of the Commission customarily recites as in this case that the employee “did not sustain an accident”.
Time does not permit exploration and consideration of the larger question of whether the Compensation Law applies to all work-connected injuries. It has become a well-established rule, however, that the Compensation Act where applicable is not supplemental or declaratory of any existing remedy, but creates an entirely new right and remedy and where the employer and employee are deemed to be under the Act such a new right and remedy is wholly sub-stitutional in character and supplants all other rights and remedies at common law or otherwise. Section 287.120(1) and (2) ; Griffin v. Doss, Mo.App., 411 S.W.2d 649, 650[1]; Marie v. Standard Steel Works, Mo., 319 S.W.2d 871, 875 [3]; De May v. Liberty Foundry Co., 327 Mo. 495, 37 S.W. 2d 640, 645 [1] ; Cleveland v. Laclede-Christy Clay Products Co., Mo.App., 113 S.W.2d
*2001065, 1067[7]. If the holding of the majority opinion is right, this statement of the rule is meaningless.
An employee electing to accept the Compensation Act which makes remedies thereunder exclusive waives the constitutional guaranty of a certain remedy for every injury provided by Art. 1, § 14, of the Constitution of Missouri 1945. De May v. Liberty Foundry Co., 327 Mo. 495, 37 S.W.Zd 640, 645 [2-8].
I agree with the trial court that it had no jurisdiction to relitigate the issues. I would affirm the judgment.