
    The Acklin Stamping Co. v. Kutz, by etc.
    
      Workmen’s compensation — Minor not employe, when — Section 1465-61, General Code — Illegal employment — Civil liability of employer — Common-law defenses — Section 1465-76, General Code — Fraud or misrepresentation by minor — Section 6245-2, General Code — ■Fañhire to safeguard machinery.
    
    1. The Workmen’s Compensation Act was enacted for the purpose of providing a state insurance fund for the benefit of injured and dependents of killed employes and requiring contribution thereto by employers. If the relation of employer and employe does not exist the provisions of the act have no application.
    2. A minor who is employed in violation of a statute enacted for the protection of children is not an employe within the meaning of that term as used in that act and as defined in Section 14 (Section 1465-61, General Code).
    3. In an action by such a minor for damages on account of personal injuries claimed to have arisen from the failure of the employer to comply with a lawful requirement for the protection of the lives and safety of employes, the provisions of Section 29 of that act (Section 1465-76, General Code) do not apply.
    
      4. In such an action the provisions of Section 6245-2, General Code, apply, and the defense of contributory negligence is not available to the employer unless he show by a preponderance of the evidence that there was fraud or misrepresentation on the part of the minor employe as to his age.
    (No. 15630
    —Decided April 2, 1918.)
    Error to the Court of Appeals of Lucas county.
    Defendant in error, as a minor fifteen years of age, brought an action by Louis Kutz, his father and next friend, in the common pleas court of Lucas county, to recover damages on account of personal injuries sustained by him while in the employ of The Acklin Stamping Company.
    It appears from the amended petition that the defendant in the common pleas court, The Acklin Stamping Company, owned and operated a factory and workshop in the city of Toledo and employed more than five workmen, operators and employes in and about said business; that on June 28, 1916, and for about thirty days prior thereto, Walter Kutz, the plaintiff, was employed as an assistant to a stamper, between the hours of 5:45 o’clock in the evening and 5:15 o’clock in the morning; that on the night of June 28, 1916, plaintiff was ordered by the foreman of the defendant to take small pieces of iron or steel, called and known as yoke-ends, from barrels and place them on a board set at an incline immediately adjacent to one of defendant’s stamping machines, in such manner and in such numbers that the yoke-ends would at all times be convenient, and at the command of the operator of the stamping machine.
    
      It was alleged, in substance, that on June 28, 1916, defendant had erected and maintained in its factory a steel fan about four and. one-half feet in diameter, and had connected the same with machinery which caused it to operate and be operated by revolving rapidly at great speed, and that defendant had carelessly and negligently caused and permitted said fan to revolve at said high rate of speed at said time and place without the protection of any guard of any kind, and had thereby carelessly and negligently failed to comply with the lawful requirements for the protection of the lives and safety of employes as set forth in Section 1027, General Code of Ohio.
    The defendant was charged also with negligence on account of its failure to comply with the lawful requirements for the protection of the lives and safety of employes as set forth in Sections 15 and 16 of an act creating an industrial commission of Ohio, 103 Ohio Laws, page 95.
    It was further alleged that about nine o’clock in the evening of June 28, 1916, while in the performance of his duty under said employment and under the direction of his foreman, plaintiff went to some barrels standing in said factory near said revolving fan to get some of said yoke-ends for said stamping machine, and while so engaged, and without any fault on his part, his right hand was drawn into said revolving fan and was by said fan so broken and torn and crushed and mutilated that it was necessary in order to save his life to amputate his hand at the wrist, and it was so am-
    
      putated. There was a prayer for judgment in the sum of $40,000.
    The answer contained four defenses. In its first defense defendant admitted that it was a corporation owning and operating a factory in the city .of Toledo, that it regularly employed more than five workmen, and that plaintiff, Walter Kutz, received some injury during the evening of June 28, 1916, which necessitated the amputation of his right hand. Each and every other allegation in the amended petition was denied.
    In the second defense it was alleged that defendant had elected to operate and on June 28, 1916, was operating under the Workmen’s Compensation Law of the state, that it had paid the required premium into the state insurance fund in pursuance of said law, and that if plaintiff had been injured in its factory on or about June 28, 1916, said injury was in no way the result of its wilful act nor did it result from the failure of defendant to comply with any lawful requirement for the protection of the lives and safety of its employes.
    In its third defense defendant alleged that plaintiff was employed by it on or about May 15, 1916; that from said date until June 28, 1916, his duty was to lay out work and act as helper; that prior to the time plaintiff was so employed he represented to defendant that he was more than sixteen years of age and that defendant in employing him relied on his representations that he was more than sixteen years of age and that at no time did it have any knowledge that he was under sixteen years of age. It was further alleged in the third defense that defendant on June 28, 1916, about six o’clock p. m., installed in its factory in an opening in the wall thereof, and about five feet from the floor, a metal fan about three or four feet in diameter; that after said fan had been so installed defendant caused it to revolve for the purpose of testing and adjusting it, and that while said fan was revolving and was being so tested and adjusted defendant warned and ordered its employes and said plaintiff in particular to keep away from said fan; that within three or four hours after said fan had been installed, and while it was revolving and being tested and adjusted, plaintiff left his work and commenced to experiment and play with the fan and throw articles into said fan while it was revolving, with the result that his right hand was caught in some way unknown to defendant by the fan and injured; that plaintiff, Walter Kutz, had no business or duty about or near said fan and that his duties did not require or make it necessary that he go near it, but on the contrary plaintiff in going near and about said fan disobeyed the warning and instructions given to him; and that there was no negligence or want of care on the part of the defendant which contributed to or caused said injury to plaintiff in any way whatsoever.
    In its fourth, defense defendant averred that if it was in any way negligent, which it specifically denied, the negligence of plaintiff in going near and about and experimenting and playing with said fan while it was revolving and while it was being tested and adjusted, and after having been warned and ordered to keep away from it, directly contributed to the accident and was the proximate cause thereof.
    In his reply plaintiff denied each and every allegation contained in the answer which was not affirmatively stated as a fact in his amended petition.
    The case was tried to a jury and resulted in a verdict for the defendant. A number of interrogatories were submitted to the jury, which, with the answers thereto, are as follows:
    “1. Did the plaintiff, during the evening before he was hurt, know the fan was running? Answer. Yes.
    
      “2. Should the plaintiff, in the exercise of ordinary care úpon his part, have known that the fan was revolving before and while he stood within a short distance of it? Answer. Yes.
    “3. During the evening before he was hurt, was the plaintiff ordered away from the fan by his foreman? Answer. Yes.
    
      “4. Did the plaintiff go into the vicinity of the fan to look for yoke ends in pursuance of any instructions from anyone in authority over him? Answer. No.
    “5. Was the plaintiff’s hat lifted from his head by the air suction of the fan when his head was at a distance of at least three feet from the fan? Answer. No.
    
      “6. Was the plaintiff’s hand drawn into the fan by the air current created by the fan from a distance of at least three feet? Answer. No.
    
      “7. Did the plaintiff just shortly before he was hurt go into the immediate vicinity of the fan for his own entertainment or amusement? Answer. Yes.”
    A .motion for a new trial was overruled and judgment was rendered on the verdict in favor of the defendant. Defendant in error here prosecuted error to the court of appeals and the judgment of the common pleas court was reversed and the cause remanded to that court for a new trial. On application of plaintiff in error the court of appeals was directed to certify its record to this court.
    
      Messrs. Marshall & Fraser and Mr. John E. Parsons, Jr., for plaintiff in error.
    
      Mr. S. S. Burtsfield, for defendant in error.
   Newman, J.

The Acklin Stamping Company had in service five or more workmen or operatives regularly in the same business and had paid into the state insurance fund the premiums provided for in the Workmen’s Compensation Act. Plaintiff in his amended petition charged that the injury on account of which he claimed damages had arisen from the failure of The Acklin Stamping Company to guard the revolving fan, which he claimed was required by the provisions of Section 1027, General Code.

The court of common pleas treated the case as one where the employe in the exercise of his option had seen fit not to claim compensation under the Workmen’s Compensation Act, but had instituted a proceeding in the courts for his damage on account of the injury alleged to have arisen from the failure of the employer to comply with a lawful requirement for the protection of the lives and safety of employes. In such a case the employer would, under the provisions of Section 29 of the act (Section 1465-76, General Code), be entitled to plead the defense of contributory negligence. It is there provided that in all actions authorized by the section “the defendant shall be entitled to plead the defense of contributory negligence and the defense of the fellow-servant rule.” But was the court of common pleas correct in assuming that the case was controlled by the provisions of the Workmen’s Compensation Act?

This act was enacted for the purpose of providing a state insurance fund for the benefit of injured and the dependents of killed employes and requiring contribution thereto by employers. If the relation of employer and employe does not exist its provisions have no application. It becomes necessary, therefore, to determine who is an employe within the meaning of that term as used in the Workmen’s Compensation Act. - The term is defined by Section 14 of the act (Section 1465-61, General Code). It includes minors “who are legally permitted to work for hire under the laws of the state.” We think that it was intended by this clause to exclude from the operation of the provisions of the act minors whose employment is illegal. We cannot subscribe to the view that it was intended to mean minors who may be legally employed to work under the laws of the state at some occupation, at some time and under certain circumstances, regardless of whether the minor was eligible for employment in the work or occupation in which he was engaged at the time of his injury. The test is, Was the employment of the minor in the given case illegal ? If there has been on the part of the employer a violation of the statutes of this state enacted for the protection of children, the employer cannot avail himself of the provisions of the Workmen’s Compensation Act.

It was alleged in the amended petition that Walter Kutz, the plaintiff, a minor under sixteen years of age, had been employed to work between the hours of 5.45 in the evening and 5.15 in the morning as an assistant to a stamper.

Section 12996, General Code, provides, among other things, that no boy under the age of sixteen shall be employed to work in, about or in connection with any establishment or occupation named in Section 12993, General Code, before the hour of seven o’clock in the morning or after the hour of six o’clock in the- evening. Among the establishments named in Section 12993 are a mill, factory and workshop. Section 13001, General Code, prohibits the employment of a child under the age of sixteen years to assist in operating a stamping machine used in sheet metal and tinware manufacturing.

There was evidence offered tending to prove the allegations as to the time at which plaintiff was required to work and the capacity in which he was employed. At the conclusion of the testimony of plaintiff, a motion was made by counsel for the defendant to withdraw from the jury the evidence with respect to the age of plaintiff, the time he was employed in the factory, the evidence with respect to the hours he worked, and that with respect to his having been a helper on the press. At the close of all the evidence in the case the court sustained this motion, and the. jury was instructed to disregard such evidence. We think this evidence was competent and should have been allowed to go to the jury. If plaintiff had been employed to work in or about or in connection with the factory before the hour of seven o’clock in the morning and after the hour of six o’clock in the evening, or had been employed to assist in operating a stamping machine used in sheet metal and tinware manufacturing — and these were questions of fact for determination by the jury — then the employment was illegal, and plaintiff would not be an employe within the meaning of that term as used in the Workmen’s Compensation Act. Its provisions would have no application and the case would be one as though the act had not been enacted.

In the amended petition defendant is charged with failure to comply with the provisions of Section 1027, General Code. If the revolving fan in question was machinery which came under the provisions of that section, and there was a failure on the part of the employer to guard it, such failure was negligence per se (Variety Iron & Steel Works Co. v. Poak, 89 Ohio St., 297); and it was held in Schell v. DuBois, Admr., 94 Ohio St., 93, that if such negligence was the direct and proximate cause of the injury, not directly contributed to by the injured party, the defendant is liable. There Would then arise in the case at bar the question whether or not the defense of contributory negligence was available to the defendant. Section 6245-2, General Code, is as follows: “That in all such actions [for damages for personal injuries] where a minor employee has been employed or retained in employment contrary to any statute or law of the state or United States, such employee shall not be deemed or held to have been guilty of contributor}'- negligence, nor to have assumed any of the risks of such employment; but the employer may show by way of defense any fraud or misrepresentation made by such employee.”

As we have said, it was for the jury to determine whether or not Walter Kutz, the minor, had been employed to work in or about or in connection with the factory before the hour of seven o’clock in the morning and after the hour of six o’clock in the evening, or had been employed to assist in operating the stamping machine used in sheet metal and tinware manufacturing. If he had been, the employment was illegal, and, under the provisions of Section 6245-2, supra, a minor employe could not be deemed or held to have been guilty of contributory negligence; but the employer might show by way of defense any fraud or misrepresentation by such employe. The defendant in its answer alleged that plaintiff represented that he was more than sixteen years of age and that in employing him it relied upon this representation, and that at no time did it have knowledge that he was under sixteen years of age. The burden of proving these allegations was upon the employer. If the jury found from a preponderance of the evidence that there was fraud or misrepresentation on the part of the employe as to his age, the defense of contributory negligence would then be available.

It is said by counsel for plaintiff in error that the record indicates that the action was not only instituted on the theory that the Workmen’s Compensation Act applied, but that throughout the trial both plaintiff and defendant consistently clung to that theory. It is to be noted, however, that counsel for plaintiff requested the court to charge before argument, in substance, that plaintiff had been employed contrary to law and in violation of Section 12996, General Code, supra, and that under the provisions of Section 6245-2, supra, he could not be deemed or held to have been guilty of contributory negligence, nor to have assumed any of the risks of such employment, which the trial court refused to charge.

We think the court of common pleas erred in assuming that the case was One coming within the provisions of the Workmen’s Compensation Act, and that it erred in sustaining the motion of the defendant to have withdrawn from the jury the evidence with respect to the age, the time of employment, and the character of the work. The court of appeals was correct in reversing the judgment of the common pleas court and remanding the cause for a new trial.

Judgment affirmed.

Nichols, C. J., Wanamaker, Jones, Matthias, Johnson and Donahue, JJ., concur.  