
    No. 18350
    The State, ex rel, The Wolf Run Coal Co., v. The Industrial Commission of Ohio.
    In Prohibition.
    1283. WORKMEN’S COMPENSATION— Institution of court proceedings not a waiver of right to statutory award. Finding of court that act or omission of employer did not constitute a violation of a lawful requirement, does not relieve claimant respecting waiver.
   MATTHIAS, J.

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 wtaiver. Under that statute the election of remedies is made by the institution of the suit, and not by the result thereof.

Writ allowed.

Marshall, C. J., Robinson, Jones, Day and Allen, J., concur. Wanamaker, J., not participating.  