#### Lopez, an Infant, *v.*The King Bridge Co.

*Workmen’s compensation—Minors sui juris—Section ¿465-08, General Code—Estoppel—Acceptance of compensation—Civil liability of employer—Failure to comply with lawful requirement.*

For the purposes of the Workmen’s Compensation Act a minor over 16 and under 18 years of age is *sui juris,*by the terms of Section 1465-93, General Code, and in ease of aceidenr. due to claimed failure of his employer to comply with a lawful requirement, among other acts of negligence, such minor, having elected to accept both temporary and permanent compensation from the state insurance fund, is estopped thereby from afterward maintaining an action for damages in court against his employer who has complied with the Workmen’s Compensation Act.

(No. 17755

Decided May 22, 1923.)

*2Ebbob to the Court of Appeals of Cuyahoga county.

The original action was begun in the common pleas court of Cuyahoga county for damages for personal injury occasioned by alleged negligence of the defendant.. In his petition the plaintiff pleaded that on September 3, 1919, he sustained an injury in the course of the performance of his duties as a laborer in defendant’s factory; that he was at the time a minor between 16 and 18 years of age; that during the time of his service and employment his working hours embraced a period in excess of 54 hours each week, to-wit, 55% hours; and that the defendant operated a factory for the manufacture of bridges and iron work, had in its employ more than five employes, and had duly complied with the provisions of the Workmen’s Compensation Act. The plaintiff further alleged facts constituting negligence, in the following particulars:

First. In failing to furnish plaintiff with a safe place to work.

Second. In failing to supply plaintiff with safe instrumentalities with which to work.

Third. In failing to remove an accumulation of scales from an “arbor,” which plaintiff was holding while a mechanic was engaged in fitting it in place.

Fourth. In failing to warn plaintiff of the dangers connected with said operation.

Fifth. In failing to furnish plaintiff with goggles or other means of protection against the danger of flying substances in the performance of such operation.

*3Sixth. In failing to establish rules governing the method of performing work of the kind in question.

Seventh. In directing plaintiff to participate in a dangerous work of the kind, without protection, or warning, in view of his youth and lack of experience.

The plaintiff set forth the character and extent of his injuries, resulting in the destruction of the sight of his right eye and in the impairment of the vision of his left eye.

The defendant, by answer, admitted its employment of more than five workmen, and admitted plaintiff’s injury in the course of his service in defendant’s factory.

The defendant denied that plaintiff worked *55y.¿*hours per week and was under 18 years of age.

As an affirmative defense, the defendant averred that the plaintiff had made application to the Industrial Commission and had received compensation from the state compensation fund, and that by reason thereof is not entitled to recover.

For reply the plaintiff admitted that he made application to, and received compensation from, the Industrial Commission, but averred that he was at the time an infant, and that his employment at the time of his injury was outside of the scope of the Workmen’s Compensation Act, in that it was in violation of statutes enacted for the protection of children. At the trial in the court of common pleas the defendant moved for judgment on the pleadings, which motion was sustained and final judgment entered in its favor. The Court of Appeals on error affirmed the judgment. This court sustained a mo*4tion by plaintiff in. error for an order to certify the record and a petition in error was filed accordingly.

*Messrs. Mathews, Bell & Winsper,*for plaintiff in error.

*Messrs. Wilkin, Cross & Daoust,*for defendant in error.

Day, J.

The contention of plaintiff in error is that he was unlawfully employed by defendant in error, in that, according to the petition, he worked 55% hours each week, and that on this account he was not an employe, within the meaning of the Workmen’s Compensation Act, and its provisions are not applicable to his case.

The defendant in error contends that the plaintiff, although a minor, was *sui juris,*and that, having elected to take compensation for his injuries under the Workmen’s Compensation Act, he thereby waived his right to proceed in court against his employer.

The questions presented by the ruling of the Court of Appeals are:

First. Does the decision in *Acklin Stamping Co.*v. *Kuts,*98 Ohio St., 61, 120 N. E., 229, 14 A. L. R., 812, apply to a minor over the age of 16 but under the age of 18 years, who is regularly employed for 55% hours weekly in a factory of the kind named in Section 12998, General Code, and who is injured therein by his employer’s negligence?

Second. If such employe, while still a minor, accepts payments from the state, compensation fund on account of such injury, is he thereby precluded from maintaining his action at law for negligence?

*5The ease of *Acklin Stamping Co.*v. *Kutz, supra,*was decided April 2, 1918. The date of plaintiff’s injury was September 3, 1919, and on August 14, 1919, Section 1465-93, General Code, as amended 108 Ohio Laws, pt. 1, 324, became effective. It provides as follows: “A minor shall be deemed *sui juris*for the purposes of this act. ** ***”

The language that was in the act at the date of the decision of the *Kutz case,*“minors who are legally permitted to work for hire under the laws of the state,” was not in the act in force at the date of the accident to plaintiff in error.

The definition of the word “employe,” as found in Section 1465-61 on September 3, 1919, must be construed in the light of the rights of such minor as fixed by Section 1465-93 on that date.

There is nothing in the petition to disclose that the employment of the plaintiff, as one 16 and under 18 years of age, was not entirely legal, in so far as the contract of employment itself was concerned, the nature of his duties, and so on. In regard to his hours of employment it may have occurred that at the end of the week, in sum total, there was an hour and a half more time than he was legally permitted to work, but, in so far as the character of the work in which he was engaged is concerned, it is entirely to be distinguished from that of the minor in the *Kutz case,*who not only worked during forbidden hours, to-wit, at night, but, though a child under 16 years of age, was employed to assist in operating a stamping machine in violation of Section 13001, General Code. So we are constrained to the conclusion that the *Kutz case*is not controlling upon the vital point in this case, which is: Was the *6plaintiff in error, a minor between 16 and 18 years of age, whose contract of employment was not of itself illegal, *sui juris*on September 3, 19191 We find the plaintiff in error came within the terms of the Workmen’s Compensation Act, and it must follow that he was *sui juris*at the date of his accident, to-wit, September 3, 1919.

The record discloses that after the date of the unfortunate accident the plaintiff applied to and received from the Industrial Commission relief from its compensation fund, and later secured what is denominated “permanent relief,” and accepted and kept both of these sums.

Thereafter he instituted the instant case. Now it is apparent upon an examination of the petition that among other acts of negligence he averred the violation of lawful requirements by his employer. Having elected to pursue his remedies under the Workmen’s Compensation Act, and having accepted the benefits thereof, he is estopped from now maintaining an action in court against his employer.

“Having made his application for compensation from the insurance fund, plaintiff waived his right to exercise his option to institute a proceeding in court, and his proceeding in the court of common pleas should have been dismissed.” *Zilch, a Minor,*v. *Bomgardner,*91 Ohio St., 205, 210, 110 N. E., 459.

“The options given to an employe or his legal representative by Section 1465-76, General Code, are confined to employes injured in the course of employment, and comprehend *only*those cases where the injury has arisen from the willful act of the employer or from his failure to observe a lawful requirement. In such cases the employe or his rep*7resentative may exercise Ms option either to institute proceedings under the act for damages or to make application for an award. But the selection of one of these remedies is a waiver of the right to pursue the other.” *Conrad, Admx.,*v. Yough*iogheny & Ohio Coal Co.,*107 Ohio St., 387, 140 N. E., 482.

In the light of the foregoing announcement, the judgment of the Court of Appeals is affirmed.

*Judgment affirmed.*

Marshall, C. J., Robinson, Jones, Matthias and Allen, JJ., concur.