
    No. 17591
    Mary Conrad, Admx., v. the Youghiogheny & Ohio Coal Co.
    Error to the Court of Appeals of Mahoning county.
    WORKMEN’S COMPENSATION — (1) Injury after termination of employment, 102 OS. 1, followed; 91 OS. 205 distinguished — (2) Adjudication of i claims — Second action against employer, when— (3) Estopel — (4) Exercise of options under 1456-76 GC.
   JONES, J.

1. The Ohio Workman’s Compensation Act does' not apply to employes who may be injured after the termination of their daily employment, nor when, at the time of the injury, the relationship of employer and employe has ceased to subsist. (Industrial Commission v. Weigandt. 102 Ohio St. 1, followed; Zilch v. Bomgardner, 91 Ohio St. 205, distinguished.) .

2. A legal representative of a killed employe can bring an action -for damages as at common law against the employer,- although such representative has therefore made application to the industrial corn-mission for an award-under -the. act, jf'the sole ground of rejection by the Commission is that at! the time of injury the deceased was not in the employ of the defendant or killed' in the course of employment.

3. In any case, if the finding of the commission is in favor of the applicant, or if the, latter accepts compensation under the act, the applicant would be estopped from institution any suit for damages resulting from the injury.

4. The options given to an employe or his legal representative by Section 1456-76, General Code;’ are confined to employes injured in the course of employment, and comprehend only those cases where the injury has arisen from the wilful act of the employer or from his failure to ..observe a lawful r.e7 quirement. In such cases the .employe or his representative may exercise his 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.

Judgment reversed.

Marshall, C. J., Wanamaker, Matthias, Day and Allen, JJ., concur.  