The only question presented by this appeal is whether plaintiff’s right to compensation on account of the death of his intestate, Curtis E. Hanks, was barred by reason of failure to give notice of the accident to the defendant employer, as required by sec. 22 of the North Carolina Workmen’s Compensation Act, and by failure to file claim with the North Carolina Industrial Commission within one year after the death of plaintiff’s intestate, as required by sec. 24 of said act.
The North Carolina Workmen’s Compensation Act requires that the injured employee, or his representative, shall give or cause to be given written notice of the accident to the employer, and the employer is required to make report in writing of the accident to the North Carolina Industrial Commission within ten days after the occurrence and knowledge thereof, and later to make a supplemental report. C. S., 8081 (dd), and 8081 (vvv).
The act further provides that right to compensation shall be barred unless a claim be filed with the Industrial Commission within one year after the accident. C. S., 8081 (bb).
In Hardison v. Hampton, 203 N. C., 187, where more than one year elapsed from the date of injury to the request for hearing by the injured employee, it was held that “there is no provision in the North Carolina Workmen’s Compensation Act requiring an injured employee to file claim for compensation for his injury with the North Carolina Industrial Commission,” and that “where the employer has filed with the Commission a report of the accident and claim of the injured employee, the Commission has jurisdiction of the matter, and the claim is filed with the Commission within the meaning of section 24.”
In the instant case it appeared that the injury and death of Curtis E. Hanks on 6 December, 1929, while in the employ of defendant, was *317known to the employer, that funeral and medical expenses were promptly authorized and paid by it, and that within three days it reported the accident to the Industrial Commission on the prescribed Form 19. This report was duly received and filed as a claim under the Workmen’s Compensation Act and gives a file or docket No. 17959 which it has continuously retained.
The representative of the deceased employee was unable to read or write, and could not himself make a written report, but he gave all the required information to the employer’s claim agent, and this information was incorporated in the report made by the employer to the Industrial Commission. The employer had full knowledge of the occurrence. The employer’s report on the prescribed Form 19 sets out in detail all the facts necessary to make an award.
A question arose, as the result of information given defendant by the plaintiff, as to whether there were dependents as defined by the act, and under date of 21 December, 1929, defendant notified the Industrial Commission (in accordance with sec. 57 of the act) : “We have been unable to make an agreement as to settlement in the above case,” that the father first claimed the son was not contributing to support of father or mother, but now claimed he was, but refused to give the amount. “Therefore, I have no way of arriving at the amount that should be paid.”
Thereupon the Commission wrote the plaintiff, under date of 7 January, 1930, as follows:
“Deab Sib: Be: I. C. File 17959.
“We understand from Southern Public Utilities Company that you and your wife are claiming compensation by reason of the death of your son, C. E. Hanks. We understand, also, that you have claimed partial dependency, and that in view of the fact that there appears to be no one who under the act is conclusively presumed to have been dependent upon your son, this raises a question of fact which can only be determined by means of a hearing. In order that we may know how to proceed, please give us the names and addresses of all persons claiming dependency.”
It appears, therefore, that claim for compensation was filed by the employer, and was so understood by the defendant, and so treated by the Industrial Commission. This was done within less than one year after the fatal accident. The defendant employer at all times admitted its liability under the act, and was ready to pay, and only contends now that plaintiff’s right to the compensation allowed by law under the ad*318mitted facts has been abandoned or lost by bis electing to pursue the common law remedy, or by the lapse of time.
“An acknowledgment or recognition of liability for compensation by the employer constitutes waiver of the requirement for making or filing timely claim, such recognition of liability by the employer eliminating the question of whether a claim for compensation has been made.”, 71 C. J., 1039, sec. 812.
The finding of fact by the Industrial Commission that plaintiff “expressly refused to file a claim with the North Carolina Industrial Commission within one year after the death of deceased,” is not supported by the evidence. The evidence shows that plaintiff failed to answer the letter of the Commission with respect to the character of his claim as to dependents, and that plaintiff’s attorney failed to answer letter of the Commission inquiring why be proposed to institute suit at common law.
Defendant’s contention that plaintiff, having elected to institute an action at common law, is estopped now to prosecute his claim under the act, cannot be sustained under the facts and circumstances of this case. Stevedoring Co. v. Pillsbury, 170 Cal., 321; McLead v. Sou. Pac. Co., 64 Utah, 409. Here the defendant admitted liability under the act and offered to pay, resisted the common law action, and finally brought about its defeat by the plea that the Industrial Commission bad exclusive original jurisdiction to bear and determine the plaintiff’s claim. The restriction upon proceeding in another forum is that a recovery in the one form of action bars recovery in the other. As was said in Phifer v. Berry, 202 N. C., 388: “He may recover by one of the alternate remedies, but not by both.”
In Rowe v. Rowe-Coward Co., 208 N. C., 484, the plaintiff there filed claim for compensation under the.act for an injury sustained 29 March, 1933. In August, 1933, he notified the Industrial Commission: “For the present I do not desire to press this claim, and therefore withdraw it until further notice to you if I shall conclude later on to renew my claim before your Commission. I have a suit pending in Durham Superior Court, which I shall press, and I do not desire, unless you are otherwise notified, to press my claim before the Commission.” Having lost his suit in the Superior Court, the plaintiff in that case, in July, 1934, wrote the Commission be desired to proceed with the prosecution of his claim. Thereafter, a bearing was set and an award in his favor finally determined.
While the plaintiff, under the advice of his counsel then employed, instituted an action in the Superior Court of Wilkes County seeking to recover damages for the wrongful death of his intestate under the Federal Employers’ Liability Act, taking the view that the Workmen’s Compensation Act violated the constitutional right to trial by jury, that *319action would not debar him now from prosecuting bis claim under the Workmen’s Compensation Act, provided bis claim, constituted in substantial compliance with the act, was still pending before the Industrial Commission. The prosecution of an action for damages by the employee does not necessarily constitute an abandonment of his claim for compensation duly filed. 11 C. J., 1002. Nor would bis failure to file application for bearing when requested by the Commission amount to abandonment of bis claim for compensation. McLead v. Sou. Pac. Co., supra.
Was plaintiff’s claim pending before the Industrial Commission in 1935, when the petition herein was filed?
It appears that the Industrial Commission treated plaintiff’s claim as pending. As above set out, on 1 January, the Commission wrote plaintiff about his claim and suggested that a bearing was necessary. On 20 January, 1930, the Commission notified plaintiff that it was inclined of its own motion to set the case for bearing, though nothing further was done about it. And in 1933 the question of closing the case was taken up with defendant’s counsel, though the Commission expressly refrained from “expressing an opinion in advance of a bearing which the dependents or personal representative of the deceased might request.” It was at all times open to the defendant to move for a bearing, or to the' Commission of its own motion, upon notice, to order a bearing. But this was not done.
The act from which the Industrial Commission derives its authority provides that if employer and representative of deceased employee fail to reach agreement in fourteen days, either party may make application to the Industrial Commission for a bearing in regard to the matters at issue, and that thereupon the Commission shall set the date for a bearing, and shall notify the parties of time and place. The act requires that the Commission, or one of its number, shall bear and determine the matter. “The award, together with a statement of the findings of fact, rulings of law, and other pertinent matter, shall be filed with the record of the proceedings and a copy of the award shall immediately be sent to the parties in dispute.”
The Industrial Commission is primarily an administrative agency of the State, charged with the duty of administering the provisions of the North Carolina Workmen’s Compensation Act. In re Hayes, 200 N. C., 133.
But when a claim for compensation has been filed and the employer and employee have failed to reach an agreement, the statute authorizes the Commission to bear and determine all matters in dispute. Thereupon, the Commission is constituted a special or limited tribunal, and is invested with certain judicial functions, and possesses the powers and *320incidents of a court, within the provisions of the act, and necessary to determine the rights and liabilities of employees and employers. 71 C. J., 917-920; Butts v. Montague Bros., 208 N. C., 186; Heavner v. Lincolnton, 202 N. C., 400.
The procedure upon the consideration and determination of a matter within the jurisdiction of the Industrial Commission, agreeable to the provisions of the act and the rules and regulations promulgated by the Commission, conforms as near as may be to the procedure in courts generally. By analogy, cases should be disposed of by some award, order, or judgment final in its effect, terminating the litigation. Employers’ Ins. Ass’n. v. Shilling, 259 S. W., 236; Todd v. Casualty Co., 18 S. W. (2d), 695. A final judgment is the conclusion of the law upon the established facts, pronounced by the court. Lawrence v. Beck, 185 N. C., 196; Swain v. Bonner, 189 N. C., 185.
The record before us fails to show any final order or adjudication of any kind prior to the one appealed from.
A claim for compensation lawfully constituted and pending before the Commission may not be dismissed without a hearing and without some proper form of final adjudication.
No statute of limitations runs against a litigant while his case is pending in court.
We conclude that the judgment of the court below overruling the opinion of the Industrial Commission and remanding the ease to the Commission for proper award in accordance with the facts found and the judgment of the Superior Court must be