
    The Collings-Taylor Co. v. American Fidelity Co.
    
      Contract of insurance indemnity — Employers’ liability—Damages for personal injury — Error—Evidence—Negligence—Employment restrictions as to minors — Age and schooling certificate—-Penalty for violation — Sections 7765, 7766, 12975 and 12994, General Code—Title to act of general assembly—Court construction of legislative intent.
    
    1. In an action to recover upon a contract of indemnity for money paid in satisfaction of a judgment rendered in an action brought by an employe against the insured for damages for personal injuries suffered in the course of his employment, where the defense is made that the injured workman was employed contrary to law, in violation of a specific condition written into the contract of indemnity, it is not error for the trial court to sustain an objection to the introduction in evidence of the record of the cause in which the judgment was obtained, offered by the defendant in support of this defense, where it appears from such record that the grounds of negligence upon, which the employe recovered the judgment for damages against the insured did not involve the legality of his employment.
    2. Sections 7765 and 7766, General Code, are the only laws of this state that provide for the issuing of an age and schooling certificate. Therefore, the phrase “the age and schooling certificate provided by law,” in Sections 12975 and 12994, General Code, necessarily means the age and schooling certificate authorized by the first named sections.
    3. Sections 7765 and 7766, General Code, authorize the issue of an age and schooling certificate as a condition precedent to the employment of a minor over 14 and less than 16 years of age, during the school term and while the public schools are in session. These sections do not authorize or require an age and schooling certificate during school vacation.
    4. Where the general assembly of Ohio expressly declares in the title to an act, that the purpose of such act is to make the laws on the subject to which it relates conform to the laws relating to a kindred subject, a court in construing such act will give effect to the intent and purpose of the law-making power, unless the language used in the act itself imperatively requires a different construction.
    (No. 15206
    Decided April 3, 1917.)
    Error to the Court of Appeals of Cuyahoga county.
    The Collings-Taylor Company brought action against the defendant in error, American Fidelity Company, in the common pleas court of Cuyahoga county, upon a contract to indemnify the plaintiff against loss and expense on account of claims of any of the employes of the plaintiff, wherever employed, for bodily injuries, including death resulting therefrom, accidentally suffered or alleged to have been suffered while said policy or contract was in force.
    The liability of the defendant by the terms of said contract was limited to $5,000, and, in addition thereto, all costs and expenses in the trial and defense of suits and legal proceedings against the plaintiff on account thereof.
    The plaintiff avers that Steve Korens accidentally suffered or alleged that he had suffered bodily injuries while in the employ of the plaintiff at its place of business, on the 11th day of June, A. D. 1911, while said policy was in full force and effect; that an action was brought by Steve Korens, by his next friend, against the plaintiff, in the court of common pleas of Cuyahoga county; that said action was duly tried and a final judgment therein rendered against the plaintiff for the sum of $6,000, with interest from the first day of the term, to-wit: April 1, 1913; and that said judgment was affirmed by the court of appeals of Cuyahoga county and plaintiff was compelled to pay to the said Steve Korens, for and on account of said injuries suffered by him and the judgment recovered therefor, the sum of $6,312 and $47.30 cost, and other costs and expenses incurred and sustained in the trial and defense of said action, amounting to $1,086.89.
    Plaintiff further avers that it duly performed all the conditions on its part to be performed, and that it gave notices required by the terms and conditions of the policy, but that the said defendant has not kept or performed the terms and conditions of said policy on its part to be kept and performed; that it neglected and refused, although often requested so to do, to settle and discharge said action against plaintiff, or to defend the same in the name of the plaintiff at its own cost and expense, and has failed, refused, and neglected to pay to the plaintiff the money plaintiff was compelled to pay in satisfaction of said judgment and costs.
    A copy of the contract of indemnity is attached to the petition. There was also an itemized account of the expenses incurred in defending the suit, filed as an amendment to the petition.
    The defendant answered, admitting that, for a valuable consideration to it paid, it entered into a contract to indemnify the plaintiff against loss and expense on account of claims of any of the employes of said plaintiff, and that this contract was in force at the time of the injury; that an action was brought by Steve Korens by his next friend against the plaintiff, and a judgment recovered for $6000, with interest thereon; and that this judgment was affirmed by the court of appeals and plaintiff was obliged to pay and did pay the amount of said judgment and the cost as stated in his petition and amendment thereto. The defendant also admits that the plaintiff gave notices required by the terms and conditions of the policy, and that it, the defendant, refused to defend said action and has refused to pay to plaintiff the moneys paid in satisfaction of said judgment and costs, or the costs and expenses incurred, sustained and paid by plaintiff in defense of said action. Further answering, defendant denies each and every allegation in said petition contained.
    The defendant then avers that said policy of insurance had a condition therein written, wherein it was recited that said policy did not cover loss or expense for injuries or death:
    
      First. Caused to any person whose compensation is not included in the pay roll.
    
      Second. Caused to or by any child under fourteen years of age.
    
      Third. Caused to or by any person employed by the insured contrary to law.
    Defendant further avers that on or about the 6th of June, A. D. 1911, the plaintiff employed Steve Korens as a sweeper and to wipe, clean and operate or assist in wiping, cleaning and operating certain carding machines which plaintiff then owned, maintained and operated at its plant; that these carding machines were operated by belts connected with the motor power of the plaintiff, and consisted of numerous rollers, large and small, with many pins projecting from the same, and fed by automatic feeders; that the belts, wheels, pulleys and rolls of these carding machines were not guarded or covered, and the clothing, body or tools of employes coming in contact with the machinery while the same was in motion were liable to be caught and entangled therein; that Steve Korens at the time of his injury was in the act of removing with a broom, a rag from one of the carding machines, when his shirt sleeve was caught on the pins of the rolls and his arms pulled into the machine, causing the injury complained of; that Steve Korens was required in the performance of his duties to be around and about the carding machines and in close proximity thereto, and that his employment was dangerous to life and limb; that Steve Korens was a minor between fourteen and sixteen years of age and was employed by plaintiff and permitted to work in its factory without first procuring from the proper authority the age and schooling certificate required by law; that the jury in the case of Steve Korens against this plaintiff returned a general verdict against this plaintiff on the issue joined by the second amended petition, the answer, and the reply thereto, and thereby found and determined all of the foregoing facts in reference to the employment of Steve Korens to be true and that said Steve Korens was employed by said plaintiff contrary to law and in violation of condition two of said policy of insurance; and that thereupon this defendant promptly notified this plaintiff that it would not take charge of the adjustment and settlement of said claim or of any suit brought to recover thereon, and would not be responsible under the terms of said policy for any judgment rendered against the plaintiff therein.
    The plaintiff for reply admits that the policy of insurance contained the provisions pleaded in the answer; that it employed Steve Korens on the 6th of June, 1911, without demanding the age and schooling certificate; that the public schools were not then in session, the school term having ended on the 23d of May, 1911; that Steve Korens was employed as a sweeper and cleaner in its plant; that its machines were operated by belts connected with motor power, and fed by automatic feeders; that Korens at the time of his injury was engaged in the act of removing with a broom, a rag from one of the carding machines; and avers that he was at the time acting outside the scope of his employment and in utter and open disregard of his instructions and the warnings that had been given him.
    The defendant to maintain the issue on its part offered in evidence a transcript of the docket and journal entries in the action in which Steve Korens recovered the judgment against The CollingsTaylor Company, the reply of Steve Korens in that action to the answer to the second amended petition of the plaintiff, and the bill of exceptions taken in the trial of that cause, which bill of exceptions contained a transcript of all the evidence, the exhibits, and the charge of the court. Whereupon counsel for plaintiff objected to the introduction in evidence of all of the papers offered by defendant, which objection was sustained by the court, to which defendant excepted. There being no other or further evidence offered, the court directed the jury to return a verdict in favor of the plaintiff in the amount claimed in its petition, to which the defendant also excepted.
    The jury under the instructions of the court returned a verdict in favor of the plaintiff. Motion for a new trial was overruled, and judgment entered in accordance with the verdict. Error was prosecuted in the court of appeals, which court reversed the judgment of the common pleas court, “because it is contrary to the weight of the evidence.” And, “no other error appearing in the record,” the cause was remanded to the court of common pleas for further proceedings.
    This proceeding in error is prosecuted in this court to reverse the judgment of the court of appeals.
    
      Messrs. Westenhaver, Boyd & Brooks, for plaintiff in error.
    
      Messrs. Guthery & Guthery, for defendant in error.
   Donahue, J.

Upon the trial of this case in the common pleas court the plaintiff introduced in evidence the policy of insurance, and testimony in reference to the date of the adjournment of the school term, tending to prove that the public schools of Cleveland were not in session at the time plaintiff employed Steve Korens, nor at the time of the' accident, nor at any other time during his employment.

It was admitted that the several items of the account contained in the amendment to the petition are correct.

The defendant offered in evidence a transcript of the docket and journal entries in the action in which Korens recovered judgment against The Collings-Taylor Company, the reply of Steve Korens in that action to the answer to the second amended petition, and the bill of exceptions taken in the trial of that cause, which bill contains a transcript of all the evidence, the exhibits, and the charge of the court. To the introduction of this evidence the plaintiff objected, which objections were sustained by the court. No further evidence was offered by the defendant.

It is apparent that the question of the weight of the evidence could not have been before the court' of appeals. Therefore, that court erred in reversing the judgment of the common pleas court “because it is contrary to the weight of the evidence.”

It appears from the entry of judgment in the court of appeals that that court found “no other error appearing in the record.” Nevertheless, it is the duty of this court to consider the questions presented by the record, and to determine whether the judgment of the court of appeals is right for any reason.

This involves a consideration of the ruling of the trial court in rejecting the evidence offered by the defendant and a further consideration of the question whether the judgment of that court is contrary to law.

It appears from the transcript of the docket and journal entries, and the bill of exceptions, in the case of Steve Korens, a Minor, by John Korens, his Next Friend, v. The Collings-Taylor Company, offered in evidence by the defendant, that the trial court in that cause took from the jury all grounds of negligence pleaded in the petition, except the fourth, fifth and seventh, which read as follows:

“4th. Defendant was reckless and negligent in failing to instruct this plaintiff adequately and fully respecting the operation of said carding machine, and was further reckless and negligent in failing to warn and apprise him of all the dangers thereof.
“5th. Defendant was reckless and negligent in ordering and directing and permitting the removal of non-wool rags or extraneous material from said machine with a broom while said carding machine was in motion or operation.
“7th. Defendant was reckless and negligent in failing to adopt, promulgate and enforce a reasonably safe rule and method for the operation of said machine and the removal of extraneous or non-wool rags therefrom.”

Neither of these three grounds of negligence submitted to the jury by the court, and upon one or all of which the jury’s verdict must have been predicated, involved the question of the employment of Steve Korens by the insured contrary to law.

Therefore, the facts pleaded in the defendant’s second amended answer in this case were not “found and declared by said jury in rendering said verdict, and by said court in overruling said judgment,” as averred in that answer.

While the trial court in that cause may have charged erroneously touching the question of the assumption of risk, yet it could not in that manner import into that- case an issue not presented by the pleadings to the prejudice of this plaintiff in this case. The court in that case, however, did specifically charge the jury that before it could return a verdict for the plaintiff, he must establish by the preponderance of the evidence, “that the defendant was guilty of negligence in some one or more of the particulars as charged in the fourth, fifth or seventh grounds of negligence in the petition, and that such negligence was the proximate cause of the injury to the plaintiff.”-

This charge fairly submitted to the jury, the real issues involved in that action. If the charge in relation to the assumption of risk was erroneous it was not prejudicial.

The trial court in the case at bar properly excluded the record of the Korens case offered in evidence by the defendant.

It is averred in the second amended answer that the employment of Steve Koyens was in violation of condition two of the policy of insurance, which recites that “said policy does not cover loss or expense for injuries or death caused to or by any child under fourteen years of age.”

This answer admits that Steve Korens was between 14 and 16 years of age. No evidence was offered to the contrary. The burden of proof was upon the defendant to establish the truth of this averment by a preponderance of the evidence. It offered no evidence directed to that issue, but on the contrary admitted that Steve Korens was over 14 years of age. There was therefore nothing to submit to the jury touching this averment as to the violation of condition two of the policy of insurance.

It is contended on the part of the defendant that the plaintiff violated the third condition of the policy of insurance, which reads as follows:

“Third. Caused to or by any person employed by the insured contrary to law.”

This is denied by the plaintiff. No evidence was admitted on the part of the defendant in support of this averment. This of course ends the inquiry so far as the pleadings present an issue of fact touching the employment of Steve Korens by plaintiff contrary to law.

The reply of the plaintiff, however, avers that Steve Korens was employed June 6, 1911, was injured on the 11th day of the same month, and that the public schools of Cleveland were not in session, having closed for the current school year May 23, 1911. This seems to be established by the stipulation, with reference to the testimony of Sarah E. Hyre, and there appears to be no controversy touching any of these averments.

The question is therefore fairly presented by this record whether it is contrary to law to employ during the summer school vacation, a minor between 14 and 16 years of age, without first procuring an age and schooling certificate as a condition precedent to such employment. Section 12994, General Code, imposes a penalty upon a person employing a minor between 14 and 16 years of age in a factory, workshop, business office, telephone or telegraph office, restaurant, bakery, hotel, apartment house, mercantile or other establishment, or in the distribution or transmission of merchandise or messages, without first procuring from the proper authority “the age and schooling certificate provided by law.” This section, as it now reads, is general in its terms, and makes no exception whatever with reference to vacation of the public schools; but before this section can be properly construed it is necessary to inquire as to the age and schooling certificate provided by law.

Sections 7765 and 7766, General Code, provide for an age and schooling certificate, authorizing the employment of a child-under.sixteen and over fourteen years of age during the school term and while the public schools are in session. That certificate is to be issued only upon satisfactory proof that the child is over fourteen years of age and has been examined and passed a satisfactory fifth grade test in the studies enumerated in Section 7762, General Code.

It necessarily follows that “the age and schooling certificate provided by law,” referred to in Section 12994, refers to the age and schooling certificate authorized to be issued under Sections 7765 and 7766, General Code; for there is no other certificate provided by [aw- That certificate, under the plain terms of the statute authorizing its issue, has no purpose or application except “during the school term and while the public schools are in session.” It is clear, not only from the language used, but also from the history of this legislation, that no other construction can be given it.

On the 23d of April, 1904 (97 O. L., 321), the general assembly of Ohio passed an act, one of the purposes of which, as declared in its title, was “to make the minor labor law conform with the compulsory education law.” That act required the age and schooling certificate provided in Section 4022-2, Revised Statutes, as a condition of employment of a child over fourteen and under sixteen years of age. This act was amended February 28, 1908 (99 O. L., 30), but the amendment retained this provision in identical language.

Section 4022-2, Revised Statutes, provided that no child under sixteen years of age should be employed during the school term and while the public schools are in session, without first procuring the age and schooling certificate. The codifying commission changed the language of the original act, “the age and schooling certificate prescribed in Section 4022-2 of the Revised Statutes of Ohio,” to read as follows, “the age and schooling certificate provided by law.” This language necessarily means the same as the language found in the original act, especially in view of the fact that no section other than Sections 7765 and 7766 provides for the certificate. These sections are found in the chapter relating to compulsory education, and contain substantially the same provisions as Section 4022-2, Revised Statutes.

It is therefore evident that this provision of Section 12994, General Code, must receive the same construction as the similar provision found in the original statute, which by its title appears to have been passed for the purpose of making the minor labor laws conform with the compulsory-education laws of Ohio.

The general assembly having solemnly declared that it was the purpose and intent in passing this act to make the laws relating to minors conform with the laws relating to compulsory education, a court should hesitate to ignore the intention of the legislature, expressed in clear and explicit language, and to declare these laws in conflict with each other. In this section, however, the phrase “provided by law" must necessarily be construed in connection with the statutes which provide for such certificate. Sections 7765 and 7766, General Code, which provide for the age and schooling certificate, require such certificate only “during' the school term and while the public schools are in session."

The fact that under the provisions of Section 7766, General Code, these certificates can be issued only upon satisfactory proof that the child has been examined and passed a satisfactory fifth grade test in the studies enumerated in Section 7762 'necessarily confines the issuance of these certificates'to the school term, for it would be practically impossible to hold such examination during vacation.

This would mean the enforced idleness of a child legally entitled to be employed during the school vacation, merely because there are no means provided by which the necessary certificate could be procured.

The contention on the part of the defendant that these laws relating to the employment of minors do not conform to the laws relating to compulsory education, notwithstanding the declared purpose and intent of the legislature, is sought to be maintained upon the theory that it was the intent of Section 12994, General Code, to prevent the employment of a child between fourteen and sixteen years of age in the establishments described in Section 12993, General Code, and in the distribution and transmission of merchandise or messages, without some evidence of the mental capacity of the child to protect himself from the dangers incident to such employment.

If the legislature had so intended, it would undoubtedly have provided for the procuring of a certificate of that character instead of the certificate provided in Sections 7765 and 7766, General Code, and would also have provided some means by which such a certificate could be obtained during the school vacation. However, an examination of Section 12993 furnishes a conclusive answer in the negative of this proposition. It includes business offices, telephone or telegraph offices, restaurants, hotels, apartment houses, mercantile or other establishments, and the distribution and transmission of merchandise or messages. These employments present no extraordinary danger. On the contrary, many of them are as safe as any employment in which a minor could engage.

In view of the fact, however, that Section 12972 specifically prohibits the employment of a child under sixteen years of age in a place dangerous to its life, limb or health, or where its morals are likely to be impaired or depraved, further legislation upon that subject would be useless and unnecessary. This latter section covers the whole subject-matter, and protects a child under sixteen years of age from these dangers, regardless of whether he has or has not procured the age and schooling certificate.

The issue as to whether the employment of Steve Korens was in violation of Section 12972, General Code, was fairly presented by the pleadings in this case, but, the court having properly excluded the record in the original case, no other evidence was offered on the part of the defendant in the trial court to maintain this issue.

The phrase, “the age and schooling certificate provided by law,” found in Section 12975, must receive the same construction as heretofore given that language in. Section 12994. Section 12975 in this respect contains practically the same language found in Section 4022-2, Revised Statutes, which was originally a part of the compulsory-education laws of the state. The fact, that in the subdivision of that original section by the codifying commission this part of it was placed under its present sectional numbering in the chapter relating to offenses against minors, cannot affect its construction, even if the legislature had not declared the purpose of making these laws conform to the compulsory-education laws of the state.

The legislative intent further appears in the act of May 10, 1910 (101 O. L., 310), wherein Sections 7765, 7766 and 12975 were amended in one and the same act.

The defendant having admitted that the items of the account contained in the amended petition were correct, there was no disputed question of fact to be submitted to the jury, and the trial court properly directed a verdict for the plaintiff.

Judgment of the court of appeals is reversed, and that of the common pleas court affirmed.

Judgment of the court of appeals reversed and that of the court of common pleas affirmed.

Nichols, C. J., Jones and Johnson, JJ., concur.  