(dissenting). The principles of collateral estoppel, res judicata and election of rem*247edies are inapplicable to this case. This is so because deceased’s widow and the personal representative of his estate, whoever it be, are distinct entities in law, and the estate’s legal representative, in such capacity, was not a party to the workmen’s compensation proceeding. To this extent only do I agree with Mr. Justice Adams’ opinion in this appeal.
Justice Adams holds that section 4, part 1 of the workmen’s compensation law1 bars the personal representative of deceased’s estate from maintaining an action at law under our wrongful death act2 because deceased’s widow was awarded benefits, by redemption agreement and order, under our workmen’s compensation law.
Section 4, part 1 reads as follows:
“Where the conditions of liability under this act exist, the right to the recovery of compensation benefits, as herein provided, shall be the exclusive remedy against the employer.”
Since collateral estoppel, res judicata and election of remedies are inapplicable in this case, the fact that deceased’s widow perfected a claim for workmen’s compensation benefits as a dependent is irrelevant to the availability of any other remedy, as I read the quoted statutory language. The crucial issue presented by that statutory provision, instead, is whether the conditions of liability under the workmen’s compensation law exist in the factual context of these proceedings. One of the conditions of liability under that law is the relationship of employment between the injured person and the party sought to be held liable therefor.
Thus, had the personal representative of deceased’s estate pleaded such an employment rela*248tionship in her complaint, or otherwise admitted it at .the time accelerated judgment was granted, the trial judge might have been able at that stage to determine as a matter of law that the conditions of liability under the act did exist and, therefore, that this action was barred by section 4, part 1. See Moran v. Nafi Corporation (1963), 370 Mich 536; Varga v. Detroit Edison Co. (1927), 240 Mich 593; Wall v. Studebaker Corporation (1922), 219 Mich 434; and Pfeifer v. GMC Truck & Coach Division (CA6, 1958), 255 F2d 40. But she did not so plead; instead, she alleged facts from which it could be found upon trial that deceased was an independent contractor and not an employee of defendant. If this allegation be found to be true, then the conditions of liability under the act would not exist and section 4, part 1 would not bar this wrongful death action.3 Defendant’s answer alleged, on the other hand, that the deceased was its employee. If this allegation be found to be true, then the conditions of liability under the act might exist and section 4, part 1 might bar plaintiff’s recovery under the wrongful death act. However, the issue cannot be determined from these pleadings which, at best, merely create a disputed question of fact. Defendant’s motion for accelerated judgment asserted grounds therefor which are specified in GCR 1963, 116.1(5), as to which GCR. 1963, 116.3 provides that if a jury trial has been demanded, as it was by plaintiff here, determination of any disputed facts shall be postponed until the trial on the merits of *249the case. Under the circumstances, the accelerated judgment dismissing this case was premature, since plaintiff was entitled to a jury determination of the disputed question of the deceased’s status at the time of his fatal injury before section 4, part 1 of the workmen’s compensation act could he invoked to bar her remedy under the wrongful death act.
For the foregoing reasons, I would reverse the judgments of the Court of Appeals and the circuit court and remand this case for further proceedings not inconsistent with this opinion. Furthermore, I would award plaintiff her costs.
T. M. Kavanagh, J., concurred with Souris, J.CL 1948, § 411.4 (Stat Ann 1960 Rev § 17.144).
CLS 1961, § 600.2922 (Stat Ann 1962 Rev § 27A.2922),
We have held that actions at law may be maintained, when the conditions of liability under the workmen’s compensation law do not in faet exist, even after the injured person has received voluntary payments of compensation benefits from the party sought to be held liable for negligence at law. Chaffee v. Stenger (1960), 361 Mich 57, and Holcomb v. Bullock (1958), 353 Mich 514. These eases emphasize the point that it is only when the conditions of liability under the aet do in faet exist that the act provides the exclusive remedy.