It is impossible to avoid sympathy with the plight in which Ellenburg found himself after it had been adjudged by this court and by the Supreme Court of the United States that the railroad company was not answerable to him under the federal statute. But it was then too late to bring an action under the Workmen's Compensation Act; and I am unable to find any justification in law for the course pursued in this case. Ellenburg had no more right to add the count under the Compensation Act than he would have had to bring an original suit under the act at that time. This, because the two actions cannot be joined in the same complaint, the reasons for which Judge BOULDIN has pointed out, and because the statute provides that claims under the Compensation Act "shall be forever barred * * * unless within one year after the accident one of the parties shall have filed a verified complaint." It would in my judgment be impossible to conduct an intelligible trial before a jury of issues formed by the joinder of the two causes of action, and, whatever may be thought of that proposition, it was impossible for Ellenburg to comply with the statute at the time when he filed his amendment. It seems to me to be a perversion of the statute of amendments to hold that a plaintiff may try his case under the federal statute and then, after failing at that, try it over under the Compensation Act of the state, enacted long after the statute of amendments and presenting a situation of which no thought was had when that statute was passed; in other words, I fail to appreciate the proposition that an appeal to the federal act conferred jurisdiction to try under the Compensation Act. I therefore dissent. *Page 398