Election is final and bars any action suit or

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

higher damages but he cannot pursue both courses of action simultaneously. An exception to said rule