This is an action for personal injuries to a workman under the laws of Arizona. The plaintiff was working as the engineer and operator of a gasoline drag-line dredger, engaged in road work. This machine had canvas curtains, which could be rolled up, and which were designed to protect the operator from the sun and wind. One of these curtains was caught in- the gearing, and, as it was wound up, it caught the plaintiff, and seriously and permanently injured him.

The workmen’s compensation statutes of the state of Arizona are peculiar, in that they allow an injured employee either to proceed at common law, or to accept a periodical compensation, limited to the gross sum of $4,000, or to bring an action in the common-law courts, in which certain defenses are inhibited.

After the plaintiff had been in the hospital for some time, he was notified that there was a check for him at the local express office. He went there, and received a check, for the amount which would have been due him under the compensation provisions of the statute. At the same time, he signed a paper, which turned out to be an election to accept the compensation. However, he testified that he was not permitted to read it, and, in fact, believed it to be nothing but a receipt for the money. The jury were instructed as follows:

Moreover, .section 3160 of the Arizona statute provides:

Under this statute, it seems plain to me that the plaintiff was not bound to tender back what he has received. Such cases as Mahr v. Union Pacific Co., 170 F. 699 , 96 C. C. A. 19 , apply only to releases which are actually executed, even though the injured person may have been induced to sign them by fraud or misrepresentation. But in this case (irrespective of the statute), if his testimony is believed, he never executed the election at all, but signed the paper believing it was something entirely different.

It is next urged that no negligence was shown. Under the alternative form of action allowed by the Arizona statute, the injured employee is entitled to recover, irrespective of negligence. See decision of Supreme Court of Arizona in Consolidated Arizona Smelting Co. v. Egich, 22 Ariz. 543 , 199 F. 132 .

I think the complaint is sufficient under the Arizona statute.

Let the petition for new trial be denied.