#### The State, ex rel. The Wolf Run Coal Co., *v.*Industrial Commission of Ohio et al.

*Workmen’s compensation*— Waiver *of right to award*— Section *1465-16, General Code*— Instituting *independent civil*suit— *Failure to comply with lawful requirement*— Flection *of remedies.*

1. Under the express provisions of Section 1465-76, General Code, an employe, or his legal representative in case death results, who exercises his option to institute proceedings in court, as provided by such section, waives his right to any award.

2. Where an action is prosecuted by the administrator of an employe whose death had resulted from an injury sustained by him in the course of his employment, which is based upon the claim that such injury was caused by the failure of the employer to comply with a lawful requirement, the fact that the court found and determined that the act or omission did not constitute a violation of a lawful requirement within the purview of Section 1465-76, General Code, does not relieve the claimant from the operation of the express provisions of such statute respecting waiver. Under that statute the election of remedies is made by the institution of the suit and not by the result thereof.

(No. 18350

Decided June 3, 1924.)

In Peohibition.

This is an original action in prohibition in this court, wherein the relator seeks a writ prohibiting the Industrial Commission from proceeding to hear and determine a certain claim for compensation now pending before that Commission. The issue is presented by demurrer to the petition. The petition, in substance, alleges that on November 1, 1919, John Olshevsky was appointed administrator *488of the estate of Sylvester Troohanowski, and on November 3, 1919, such administrator began an action in the court of common pleas of Jefferson county against the Wolf Run Coal Company, wherein he sought to recover damages from that company on account of the death of Sylvester Trochanowski, on the ground that such death was caused, on September 8, 1918, by an explosion in the mine of said company, which it was asserted was caused by the failure of the company to comply with Section 902, General Code, that being part of the Mining Act of the state.

Defendant filed a demurrer to the amended petition in that case, challenging the right of the administrator to prosecute such action, which demurrer was overruled and issue joined upon the merits. Thereupon a trial was had, resulting in a verdict and judgment against the coal company, and in favor of the administrator. Upon proceeding in error from that judgment the Court of Appeals reversed the action of the common pleas court, and the administrator then prosecuted error to the Supreme Court, where the judgment of the Court of Appeals was affirmed. After that action was commenced in the common pleas court, which was brought by the administrator on behalf of the widow and next of kin of Sylvester Troohanowski, the widow filed an application with the Industrial Commission of Ohio for compensation from the state insurance fund on account of the death of her husband, but no action was taken by the Industrial Commission until after the Supreme Court had affirmed the Court of Appeals *489and final judgment had been entered in favor of the Wolf Bun' Coal Company.

It is averred in the case here under consideration that the Industrial Commission is about to hear and determine the claim of the widow to compensation from said state insurance fund, and it is asserted, upon belief, that the industrial Commission will make an award therein unless a writ of prohibition is issued by this court.

While this cause was submitted upon demurrer to the petition, it was agreed that certain other facts should be considered in determining whether a writ of prohibition should issue, including the record in the case above referred to, *Olshevsky*v. *Wolf Run Coal Co.,*106 Ohio St., 122, 140 N. E., 126. In that case the administrator sought to recover damages from the company on account of the death of Sylvester Trochanowski, on the ground that the company, by its agents and servants, placed a keg of blasting powder in the neck of one of the rooms of its mine, in which Sylvester Trochanowski was working, which blasting powder came in contact with an electric wire near which it had been placed, resulting in an explosion which caused the death of the decedent. That suit was based upon the claim that the company had violated a lawful requirement, in that it had failed to comply with the provisions of Section 962, General Code.

*Messrs. Bulkley, Hauxhurst, Jamison & Sharp,*for relator, the Wolf Run Coal Company.

*Mr. John M. Pindras,*for dependents of Trochanowski.

*490
      *Mr. C. C. Crabbe,*attorney general, and *Mr. R. R. Zurmehly,*for Industrial Commission of Ohio.

Matthias, J.

The sole question presented by this record is whether the action brought by the administrator of decedent in the courts of the state, and prosecuted to final judgment, constitutes such a waiver as to preclude the making of an award by the Industrial Commission.

The action brought by the administrator was based upon the claimed failure of the employer of the deceased employe to comply with a lawful requirement for the protection of the life and safety of the employe, which action is expressly authorized by the provisions of Section 1465-76, General Code. By these provisions of the Workmen’s Compensation Act the right to maintain an action for damages for injury from such cause is preserved to an injured employe or his legal representative in case death results from the injury; but, by the further express provisions of that act, such employe, or, in the event of his death, his legal representative, may not institute such court action and also file and prosecute before the Industrial Commission a claim for compensation under such act. The statute has so provided in language so clear and concise as to leave nothr ing whatever to the court for interpretation or construction.

Let us notice first the provision in Section 1465-76, General Code, as follows:

> “Such employer shall not be liable for any injury to any employe or his legal representative in case death results, except as provided in this section.”

*491It is to be observed that “this section” authorizes suit only “in case such injury has arisen from the willful act of such employer * * * or from the failure of such employer * * * to comply with any lawful requirement,” etc.

Then looking further to the provisions of this section it is to be observed that “such injured employe, or his legal representative in case death results from the injury, *may, at Ms option,*either claim compensation under this act or institute proceedings in the courts for his damage on account of such injury.”

This language in itself makes it clear that the injured employe, or his legal representative, must at the outset exercise his option to either claim compensation from the Industrial Commission or institute action in court; he is not permitted to do both. Further along in this same section it is still more clearly and concisely provided that the election of one of the remedies provided excludes the party from then or thereafter pursuing the other. The provision, “every employe, or his legal representative in case death results, who makes application for an award * * * waives his right to exercise his option to institute proceedings in any court except as provided in Section 43 hereof,” was before this court in the case of *Zilch, a Minor,*v. *Bomgardner,*91 Ohio St., 205, 210, 110 N. E., 459, 460, and the court there announced the conclusion that “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 *492proceeding in the court of common pleas should have been dismissed.”

The other alternative set forth in the same section is just as clear and explicit. It is as follows:

> “Every employe, or his legal representative in case death results, who exercises his option to institute proceedings in court, as provided in this section, waives his right to any award.”

Language cannot be made more direct or certain, and no part of it calls for or permits any interpretation or construction by the court. Under that provision, if an employe, or in the event of his death his legal representative, exercises his option and institutes proceedings in court, as provided in that section, he thereby waives the right to make claim for an award from the Industrial Commission on account of such injury. Concededly the legal representative in the ease to' which we have referred did exercise his option pursuant thereto, not only in the trial court, but in the reviewing courts, and under the provisions of this act an award by- the Industrial Commission was waived, and therefore a claim before that Commission could not be prosecuted, nor is the Commission authorized to make any award. *Carnegie Steel Co.*v. *Zebich,*108 Ohio St., 449.

The administrator, being the “legal representative” of an employe whose death had resulted from an injury sustained by him in the course of his employment, caused by the failure of his employer to comply with a lawful requirement, is authorized to maintain a suit to recover damages in behalf of the widow and next of kin, and hence, if the act or omission complained of in the court action above referred to had constituted a failure *493to comply with a lawful requirement, the administrator, as such legal representative, would have been entitled to recover a judgment in that action. The fact that the Court of Appeals and the Supreme Court found that the act or omission of certain workmen to do the thing directed by the provisions of .Section 962, General Code, did not constitute the violation of a lawful requirement within the purview of Section 1465-76, General Code, cannot relieve the claimant from the operation of the express provisions of the statute respecting waiver, above quoted. The election of remedies is made by the institution of the suit and not by the result of such action.

The term “legal representative” used in that section with reference to such court action is evidently employed with the meaning it has in the common use of the words, in its ordinary signification, as a term equivalent to executor or administrator; but, as used later in the section, the term seems to refer to the next of kin. However, the purpose of the legislative provision, plain and manifest in the section taken as an entirety, is that there shall be no duplication of awards, whether by a suit in court or by a claim filed with the Industrial Commission. If the rule and requirement of this statute should be changed or amended, that is necessarily a matter for the Legislature and not for the court.

*Writ (Mowed.*

Marshall, C. J., Robinson, Jones, Day and-Allen, JJ., concur.

Wanamaker, J., not participating.