available, and inconsistent remedies, and that he undertook to pursue one. 9 R. C. L. pp. 956, 957, 962; Clark v. Heath, 101 Me. 530, 8 L.R.A. (N.S.) 144, 64 Atl. 913; Harrill v. Davis, 22 L.R.A. (N.S.) 1153, 94 C. C. A. 47, 168 Fed. 187; Dudley v. Barrett, 66 W. Va. 363, 66 S. E. 507.

As the plaintiff at the time of the injury was entitled to pursue only his remedy for damages at common law, the doctrine of estoppel by election of remedies is inapplicable. Hogan v. New York C. & H. R. R. Co. 139 C. C. A. 328, 223 Fed. 890, 12 N. C. C. A. 1050; Waters v. Guile, 148 C. C. A. 298, 234 Fed. 532.

In the first of these cases it was held that, the remedy for injury or death of an employé under the Federal Employers' Liability Act (U. S. C. title 45, §§ 51-59) being exclusive, the bringing and subsequent discontinuance of an action at common law or under a state statute does not constitute an election of remedies which will bar a later suit under the federal statute. In the second case, wherein the defendant railroad company, engaged in interstate commerce, had elected to come under the Michigan Compensation Act, it was held also that the remedy of a brakeman engaged in interstate commerce for injuries occasioned by the negligence of the railroad company, under the Federal Employers' Liability Act, being exclusive, his notice of injury to the railroad company and the industrial board in conformity with the Michigan Compensation Act, which terminated in a disagreement and failure to make settlement, did not estop him from subsequently suing under the Federal Employers' Liability Act.

There are not sufficient facts in the case under consideration to constitute the action of the plaintiff in applying for and accepting current benefits under the Compensation Act either an estoppel in pais or estoppel by adjudication.

Counsel for the defendant assert that the affirmance of the judgment

below would result in the reversal of the cases of Fickeisen v. Wheeling Electrical Co. 67 W. Va. 335, 27 L.R.A. (N.S.) 893, 67 S. E. 788; Perry v. Ohio Valley Electric R. Co. 70 W. Va. 697, 74 S. E. 993; Suttle v. Hope Natural Gas Co. 82 W. Va. 729, 97 S. E. 429, and Roberts v. United Fuel Gas Co. 84 W. Va. 368, 99 S. E. 549. The first two of these cases hold that one electric company, delivering electricity to another, is not responsible for defects in the lines owned and operated by the purchasing company. In the third case it is held that an employé of an interstate carrier of gas assisting in the erection of a threepole rig or derrick, to be used in cleaning out a gas well in order to accelerate the production, and whose work then and on other occasions was wholly distinguishable from the transportation phase of the business, is engaged in work clearly separable and distinguishable from interstate commerce within the meaning of § 52 of the Workmen's Compensation Act. The fourth case holds that the excavation of a ditch by an interstate pipe line company preparatory to laying a gas pipe parallel to one of its existing main lines, and to be connected therewith for the purpose of increasing its carrying capacity, is not part of its commerce business, but is work clearly separable and distinguishable therefrom, and in the performance thereof such company is subject unconditionally to the provisions of the Workmen's Compensation Act. In the opinion it is stated: "The work of excavating the ditch was purely construction work, within the state, and was clearly separable and distinguishable from defendant's commercial business. The pipe line to be laid in the ditch was not part of defendant's means or appliance for carrying on either intrastate or interstate commerce, nor could it become such until the pipe was laid. This is altogether unlike a case where an employee is injured while engaged in repairing an existing means or

cian to be filled on his employer's credit, with knowledge that the druggist has first called up the employer and obtained its promise to pay for them, the jury will be justified in finding an election to proceed under the act, to the exclusion of an action at law for damages for personal injuries as provided in the act, and the fact that the employer subsequently paid the doctor and medicine bills "without the knowledge, direction, or consent" of the employee, would not negative an election.

So, in Davis v. H. P. Cummings Constr. Co. (1925) N. H., 129 Atl. 729, it was held that under the state statute an injured employee could not maintain a common-law action to recover for his injuries after he had signed releases and receipts for compensation allowable to him under the Workmen's Compensation Act, unless he was mentally incompetent to transact business or the receipts were obtained by fraud.

Where, after an injury to an employee, payment of compensation was made by the employer according to a finding of the industrial board, she is not subsequently entitled to claim that she still has outstanding a right of action based upon a claim that the employer was guilty of a separate tort in that he failed to provide her with reasonably competent medical and surgical services to care for her injury, as required by the act, as she and her employer were under the act, and by her act in voluntarily going before the industrial board and consummating an agreement in settlement of her claim for injury, she is estopped, the act providing that no common-law right is available to recover damages other than as therein provided. Spelman v. Pirie (1924) 233 Ill. App. 6. The court said that it could not reasonably be maintained that she settled with her employer for the injury, but did not settle with her employer for not providing skilful medical and surgical services.

Where an injured workman of similar origin, upbringing, education, and capacity as his employer, and knowing that a statutory obligation rested on his employer to make compensa

tion, accepted weekly payments from his employer for six months, it was held in Mackay v. Rosie (1907) 1 B. W. C. C. (Scot.) 52, that it was an agreement to make and accept compensation in the statutory form, and consequently, under the provisions of the act, the employee could not claim at common law.

In Elliott v. Liggens [1902] 2 K. B. (Eng.) 84 Div. Ct., it was held that an injured workman who had accepted as the maximum compensation one half his weekly wages, as provided in the Compensation Act, could not subsequently claim the other half of his wages accruing during the time of his incapacity, the provisions of the act being inconsistent with the view that the original wages were to go on during incapacity.

And in Conrad v. Youghiogheny & O. Coal Co. (1923) 107 Ohio St. 387, 36 A.L.R. 1288, 104 N. E. 482, 23 N. C. C. A. 215, it was held that if an injured employee or his legal representative accepts compensation under a Workmen's Compensation Act, under the provisions of the act, he would be estopped from instituting any suit for damages resulting from the injury, even though the injury was not covered by the act, for one cannot pocket the fruits of the act and later disclaim it.

And see to the same effect Barbee v. Baker Car Co. (1926) Tenn. 289 S. W. 525, where under the express provisions of the Act, the employee was held estopped even though his employer had not complied therewith.

But in the reported case (ADAMS v. KENTUCKY & W. V. POWER CO. ante, 217) it was held that where an employer engaged in intrastate and interstate commerce failed to file written acceptances or joint election to take under the act, as provided therein, and was not, therefore, protected by the act, an employee, under such circumstances, not being entitled to compensation under the act, is not estopped, by applying for and accepting benefits thereunder, from subsequently instituting an action at common law to recover damages for his injuries.

So, in Grand Trunk R. Co. v. Knapp

(1916) 147 C. C. A. 624, 233 Fed. 950, 13 N. C. C. A. 1100, it was held that the mere fact that an employer paid the hospital and doctor bills of an injured employee, as required in all cases by the state Workmen's Compensation Act, does not constitute an election by the employee, after his injury, to accept the act so as to preclude an action other than thereunder, the employee not assenting that such payment was in compliance with the act, and the act not covering the injury, the employee being engaged in interstate commerce.

And in Waters v. Guile (1916) 148 C. C. A. 298, 234 Fed. 532, it was held that the fact that an employee, whose injuries were covered by the Federal Employers' Liability Act, and not by the state Workmen's Compensation Act, allowed his employer to pay medical and hospital bills after the presentment of his claim for compensation under the state act, did not estop him from subsequently bringing an action under the Federal act, it not appearing that his employer was prejudiced thereby, since, had the employee paid the bills himself, he could have recovered the amount thereof as an element of damages in his action under the Federal act.

But in Mitchell v. Louisville & N. R. Co. (1915) 194 Ill. App. 77, it was held that where a railroad employee accepted compensation under the state act, and signed a release therefor, he could not subsequently maintain an action under the Federal Employers' Liability Act, the release being for a good consideration and fairly entered into.

But in Neumann v. Morse Dry Dock & Repair Co. (1918; D. C.) 255 Fed. 97, it was held that the acceptance of compensation under a state Workmen's Compensation Act does not constitute such an election of remedies as will preclude a stevedore from maintaining an action for personal injuries in admiralty, the payments received being extrajurisdictional, as the state compensation board was without authority in the matter.

And in Gray v. New Orleans Dry Dock & Shipbuilding Co. (1920) 146 La. 826, 84 So. 109, it was held that an 50 A.L.R.-15.

injured employee was not estopped, by his conduct in accepting and retaining payments of compensation under the state Employers' Liability Act for several weeks of total disability, from maintaining an action under the general law of torts, the employment being maritime, and the act, therefore, not applicable; the employer's insurance carrier, having paid only what was then conceded to be due the employee, regardless of what might subsequently be due, was not in any worse position for having made the payments, even though it believed, at the time of each payment, that that was all that was due at that time.

So, where the administratrix of a deceased employee and his employer proceeded upon the assumption that the injury was covered by the state Workmen's Compensation Act, the making of payment of compensation to her under that act was no bar to a subsequent action at common law, brought after the employment was decided to be maritime, and therefore not covered by the Compensation Act. Liverani v. John T. Clark & Son (1919) 176 N. Y. Supp. 725.

And see also Carter v. Uhrich (1927) 122 Kan. 408, 252 Pac. 240, and Parker V. Pantages Theater Co. (1927) Wash., 254 Pac. 1083. But in Riegel v. Higgins (1917; D. C.) 241 Fed. 718, the court said that, in its opinion, if payments of compensation made under a state Workmen's Compensation Act to an injured seaman represented the full measure of his employer's liability under that act, the seaman, after exhausting his claim for compensation in the face of the statutory declaration in the act that the remedy therein was exclusive, could not be permitted thereafter to claim damages for the same injury in admiralty. The court held, however, that since he had not received the full compensation to which he was entitled by virtue of his injuries, the amount. paid him never having been determined by any tribunal or agreement, but solely by the insurance brokers, his acceptance of compensation from the latter would not bar a subsequent action by him.

And in Brassel v. Electric Welding

Co. (1924) 239 N. Y. 78, 145 N. E. 745, 24 N. C. C. A. 395, it was held that where a Workmen's Compensation Act provides that the liability of an employer thereunder is exclusive and in place of any other, one who accepts and retains an award given by the state industrial board in pursuance to the act, is chargeable with knowledge thereof, and cannot maintain a subsequent action for damages on the ground that the industrial board was without jurisdiction, because his injuries occurred on navigable water.

So, in The Fred E. Sander (1914; D. C.) 212 Fed. 545, 5 N. C. C. A. 97, it was held that one engaged in maritime employment has an election to proceed either in admiralty or at common law, and where he receives compensation under a Workmen's Compensation Act, which takes away the common-law right, he cannot subsequently proceed in admiralty, and thereby obtain double compensation.

Where an injured minor unlawfully employed under the age of sixteen, with the consent of his father as next friend, entered into an agreement with his employer to comply with the Workmen's Compensation Act, and later, after becoming sixteen, with like consent, entered into a supplemental agreement to abide by the act, and accepted payments of compensation, the supplemental agreement was valid and binding under a section of the act so providing, not having been modified or set aside as required by that section, "and must 'operate as a surrender by the parties thereto of their rights to any form or amount of compensation or damages for any injury or death occurring in the course of their employment, or to any method of determination thereof, other than as provided in article 3 of this act.' Section 303 of the Act of June 2, 1915 (P. L. 736, 740; Pa. Stat. 1920, § 21,990). This, of course, covers the father's claim also, for when the act applies, defendant is liable only for the payments thereby required." Delaney v. Philadelphia & R. Coal & I. Co. (1922) 272 Pa. 578, 116 Atl. 537.

Where a Workmen's Compensation Act provided that for the purpose of the act a minor was deemed sui juris,

a minor, in accepting both temporary and permanent compensation from the state insurance fund, is estopped thereby from afterwards maintaining an action for damages against his employer. Lopez v. King Bridge Co. (1923) 108 Ohio St. 1, 140 N. E. 322.

But where, after an injury to a minor employee unlawfully employed, a guardian was appointed for her as provided in the Workmen's Compensation Act, and payments of compensation were made to him for her benefit, she is not precluded from subsequently maintaining an action at common law through her husband as next friend, having married in the meantime, by reason of her acceptance of such payments, her employment being unlawful, and the act not applying thereto, and the appointment of the guardian was therefore unauthorized, as were the payments to him for her. Manning v. American Clothing Co. (1922) 147 Tenn. 274, 247 S. W. 103.

So, the acceptance by an injured infant of half his weekly wages as compensation does not estop him from subsequently maintaining an action at common law, for he was not capable of bargaining away his common-law rights, no one ever having been appointed whose duty it was, or who was capable of advising him as to the course which he should pursue, and no proceedings ever having been taken in such form as to be binding upon him, Shephens v. Dudbridge Ironworks Co. (1903) 19 Times L. R. (Eng.) 665, affirmed in (1904) 20 Times L. R. 492—C. A.

And in Grand Rapids Trust Co. v. Petersen Beverage Co. (1922) 219 Mich. 208, 189 N. W. 186, it was held that since the Workmen's Compensation Law excluded from its application the illegal employment of a minor, he cannot make an election thereunder, and the acceptance of compensation by him and his dependents was no defense to a common-law action after his death by his administrator.

In King v. Viscoloid Co. (1914) 219 Mass. 420, 106 N. E. 988, Ann. Cas. 1916D, 1170, 7 N. C. C. A. 254, it was held that under the Massachusetts act the fact that a minor had received