election is final and bars any action suit or proceeding inconsistent with the

Election is final and bars any action suit or

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election is final and bars any action, suit, or proceeding inconsistent with the elected remedy, in the ab- sence of fraud by the other party. The choice of a party between inconsistent remedies results in a waiver by election. Waiver is the intentional relinquishment of a known right. It is an act of understanding that presup - poses that a party has knowledge of its rights, but chooses not to assert them. It must be generally shown by the party claiming a waiver that the person against whom the waiver is asserted had at the time actual or constructive knowledge of the existence of the party’s rights or of all material facts upon which they depended. Where one lacks knowledge of a right, there is no basis upon which waiver of it can rest. Ignorance of a material fact negates waiver, and waiver cannot be established by a consent given under a mistake or misapprehension of fact. As a general rule a claimant has a choice of either to recover from the employer the fixed amounts set by the Workmen’s Compensation Act or to prosecute an ordinary civil action against the tort fees or for
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higher damages but he cannot pursue both courses of action simultaneously. An exception to said rule
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  • Fall '19
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