delivered the opinion of the court.
*464This is an appeal by the plaintiff from a judgment dismissing bis complaint.
The appellees pleaded below and plead here that the complaint does not allege facts sufficient to constitute a cause of action and if they are right the action can not be maintained; therefore, an analysis of the material allegations made by the plaintiff is necessary in order to decide this question.
In bis 'complaint the plaintiff alleges that on October 31, 1918, be suffered the loss of an arm while working as an employee of the defendants near a coffee-bulling machine,due to the negligence of the defendant in not having removed from the drum of the machine a hand-crank which was formerly used for driving the machine in connection with a wheel and a lever, but is not now. necessary because the machine is driven by an oil motor; that because of such negligence the crank of the drum entangled a sack which he had over his head and shoulders as a protection from the drippings from the coffee berries on the upper floor; that his arm was also caught and broken; that he earned forty cents a day.
When the accident occurred the Workmen’s Accident Compensation Act of February 25, 1918, was in force, section 33 of which provides that the Act shall apply to accidents occurring subsequent to June 30, 1918.
Section 2 of the Act provides that the Act shall apply to laborers injured, disabled or killed by accidents occurring while engaged in their work, but that it shall not apply, to any employer who regularly employs less than three laborers or to any laborer whose wages exceed the sum of $1,200 annually. The compensation to which a laborer is entitled, which is governed by the same Act, may be claimed by him from the Workmen’s Relief Commission (section 8) therein created. . Section 21 of the Act provides that nothing contained in the Act shall be interpreted as depriving the injured *465workman, or bis heirs, in case of death, of waiving the provisions of the Act at any time prior to receiving corn pensation thereunder, and to claim and recover damages from, his employer, in accordance with the provisions of law existing before the said Act went into effect, when the injuries sustained by the said workman were caused by the illegal act or wilful misconduct of his employer; provided, that only in case of waiver shall the workman comprised in the said Act, or his heirs in accordance therewith, have the right to institute an action for damages against the employer.
Consequently, as the plaintiff does not allege that his employer was employing less than three workmen, in order to show that the said plaintiff was not hound by the provisions of the Act, he had to allege that he had received no compensation thereunder and that the injuries suffered were the result of the wrongful act or the criminal negligence of his employer in order to make the complaint adduce facts sufficient to constitute a cause of action for the recovery of damages from the defendant.
For the said reason the judgment appealed from must be
Affirmed. ■
Chief Justice Del Toro and Justices Wolf, Hutchison and Franco Soto concurred.