(dissenting).
I cannot agree either with the reasoning or the conclusion reached by the majority members of the court in this case.
The majority opinion is based upon the doctrine of election which is a development of equity jurisprudence and is in the nature of an equitable estoppel, while the question before the court is purely one of statutory construction, neither restricted nor enlarged by any principles of equity.
Petitioner Jeune was injured by accident arising out of and in the course of his employment with the Del E. Webb Construction Company, at Tucson, Arizona. The accident occurred on June 20, 1952. Although the Industrial Commission had recognized the injury as compensable and had sent petitioner a check for $79.28, he returned the check and on August 15, 1952, filed a common-law negligence action against his employer in the superior court of Pima County seeking $65,000 damages for the injuries sustained. At the close of his case the court instructed a verdict against him upon the ground that “most of (plaintiff’s) evidence is rather negative with respect to a positive showing that the signs were down.” Appeal was taken to this court and the judgment of the lower court was affirmed. Petitioner thereupon renewed his application for compensation with the Industrial Commission.
The pertinent portions of the statutes involved are here set forth haec verba. Section 56-944, A.C.A.1939, provides:
“Every employer of employees engaged in occupations as designated herein shall post and keep posted in a conspicuous place upon his premises, in all languages spoken by his employees and available for inspection by all workmen, a notice in substantially the following form: ‘All employees are hereby notified that in the event they do not specifically reject the provisions of the compulsory compensation law they are deemed by the laws of Arizona to have accepted the provisions of such law, and to have elected to accept compensation under the terms of said law, and that under the terms thereof employees have the right to reject the same by written notice thereof prior to any injury sustained, and that blanks and forms for such notice are available to all employees at the office of this company.’
“If an employer fails to post and keep posted said notice as required or fails to keep available at the place where laborers are hired, the blank forms of notice herein provided for to be signed by workmen, no employee who shall thereafter engage in employment for such employer, during the *418time that such notices shall not be posted or during the time that such blanks are not available, shall be deemed to have accepted the provisions of this article and it shall be optional for such employee, if injured during said period * * * such notice was not posted, to accept compensation hereunder or maintain other action against the employer.”
Section 56-950, A.C.A.1939, provides:
“Every employee, or his legal representative in case death results, who makes application for an award, or with the consent of the commission accepts compensation from an employer, waives any right to exercise any option to institute proceedings in any court. Every employee or his legal representative in case death results, who exercises any option to institute proceedings in court waives any right to any award or direct payment of compensation from his employer.”
It is my view that in determining the issues in this case sections 56-944 and 56-950, supra, are in pari materia, the former giving to the employee under the circumstances in this case the option to either sue at common law or to accept compensation under the Workmen’s Compensation Act, and the latter provides that when such employee exercises his option and makes application for an award or with the consent of the commission, accepts compensation from an employer, he thereby waives any right to institute proceedings in any court. And vice versa, if he exercises his option to institute proceedings in any court he waives any right to an award or direct payment of compensation from his employer.
The right of the employer and of the employee under the circumstances set forth therein are stated in clear and concise language. There is not the slighest ambiguity in the sections above quoted. Therefore this court is neither called upon to interpret said statutes nor has it the right to do so. The legislature has clearly expressed its intent therein and the power of the court therefore is limited to the enforcement of the legislative intent as expressed. The majority opinion is doing violence to this law by writing into it the elements of an equitable election, thus injecting into it an intent which cannot be gleaned from the simple and concise language used by the legislators.
Every case cited by appellant, except the New Hampshire case hereinafter distinguished, and upon which the majority rely, is based upon an equitable election which I confess is supported by respectable authority and perhaps by a majority of jurisdictions but we are not concerned with that kind of an election. We are concerned with the mandatory language of a statute. The word “election” is not used in the statute. It simply says that if you exercise an option to institute an action *419at common law the mandatory result of instituting the action is a waiver of any right to compensation under the Workmen’s Compensation Act. It doesn’t say in the event the injured party prosecutes his action to a successful conclusion he waives his right to compensation, yet the result of the majority opinion is just that. It says in effect that an election of remedies under the above-quoted sections of the Workmen’s Compensation Act is confined to those cases where the injured person prosecutes his common-law cause of action to a successful conclusion and denied in all cases where he loses. This holding, in my considered opinion, will result in much litigation in pursuing the common-law remedy for the reason that there is nothing whatever to lose in the event of failure of success in the courts. It opens the door to a practice in direct opposition to the policy of the state as declared in article 18, section 8, of the Arizona Constitution mandating the legislature to enact a workmen’s compulsory compensation law to relieve workmen, their widows, children or dependents from burdensome, expensive and litigious remedies for injuries to or death of such workmen producing uncertain and unequal compensation therefor.
I do not think the directed verdict in the common-law action of petitioner which was based upon the ground as stated by the court that “most of (plaintiff’s) evidence is rather negative with respect to a positive showing that the signs were down” is an adjudication that “the signs” were up except as between plaintiff and defendant and their privies in that case. As to them it is of course res judicata. Otherwise it is simply an adjudication that plaintiff did not prove to the satisfaction of the court that “the signs were down”. The fact that the judgment of the lower court was affirmed here does not alter the situation. The notice (or “sign”) may or may not have been down and any other employee who may have been injured on that occasion may show in any court that the notice was not posted.
Plaintiff worked for the company ten days before his injury. He knew whether the “signs” were up or not. He had made observations for ten days and in addition to himself, presented five witnesses at the trial to support his contention. He argued to the trial court on a motion for a new trial and here on appeal to this court that there was ample evidence to go to the jury for its determination of whether the notice was posted. Therefore petitioner voluntarily went into court to prosecute his common-law remedy with full knowledge of the facts and of his legal rights (because the commission had tendered him a check in recognition of the compensable character of his injury) and even under the doctrine of an equitable election he should not be allowed to thereafter resort to an inconsistent remedy which involved a contradiction of the grounds upon which he had before proceeded.
*420This notice was either posted as required by law or it was not. From my point of view there was no room for mistake of fact on this matter. Ten days of observation was sufficient to definitely establish the fact in petitioner’s mind. In the one case he must assert under oath the notice was not posted. In the other he must assert it was. He asserted under oath the notice was noL up and instituted his action at common law. He did this with full knowledge of all the facts. Under the clear language of section 56-950, supra, he waived any right he may have had to compensation under the Workmen’s Compensation Act.
The case of Gordon v. Amoskeag Mfg. Co., 83 N.H. 221, 140 A. 705, 706, although based upon a statute, is of but little aid in this case because there is no similarity between the New Hampshire and the Arizona statutes or in the facts of the two cases. The injured person in the New Hampshire case had agreed with the Industrial Commission to not bring a common-law action and had received compensation under the Compensation Act for months. The court held he had already made his election to take under the Compensation Act and was bound by it. It further held, however, that if he acted in good faith in bringing the action he did not thereby forfeit his right to compensation under his previous election. In the .instant case petitioner had not accepted compensation nor had he elected so to do. He elected to pursue his common-law remedy.
In the case of Carnegie Steel Co. v. Zebich, 108 Ohio St. 449, 141 N.E. 367, 368, under a statute, Gen.Code, § 1465-76, which read:
“ ‘Every employee, * * * who exercises his option to institute proceedings in court, as provided in this section, waives his right to any award, or direct payment of compensation from his employer under section 22 hereof, * * * as provided in this act’.”
The court held that where the injured person instituted an action in the courts to recover for damages sustained as a result of the injury, that he exercised his option to pursue that remedy and thereby waived his right to claim compensation from the employer. And in State ex rel. Wolf Run Coal Co. v. Industrial Commission, 110 Ohio St. 487, 144 N.E. 272, 273, under the provisions of the same section of the statute the court said with respect to the language used:
“Language cannot be made more direct or certain, and no part of it calls for or permits any interpretation or construction by the court. Under that provision, if an employe, or in the event of his death his legal representative, exercises his option and institutes proceedings in court, as provided in that section, he thereby waives the right to make claim for an award from *421the Industrial Commission on account of such injury. * * * ”
The above section of the Ohio Compensation Act has been repealed but this in no wise affects the logic employed by the court in passing upon the statute while it did exist.
I know of no better language with which to express the proposition of law relating to the construction of statutes than that employed by the Ohio court. Our statute is unambiguous. No part of it calls for or permits any interpretation or construction by the court. The majority opinion in presuming to construe it is violating a cardinal principle of statutory construction.
The award of the commission, therefore, should be sustained.