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Opinion, per NICHOLS, C. J.
compelled to rely upon an insurance indemnity company to secure their compensation, or to have any relation whatever with such companies. If an injured employe elects to avail himself of the provisions of the workmen's compensation act, the law protects just as amply the employe of a noncontributing employer as the employe of one who has contributed to the fund. The court is of opinion that Section 22 violates neither of the "equality before the law” sections of the constitution.
In this connection it is proper to observe that under the present constitution the supreme court of Ohio has been clearly and distinctly directed by the people of Ohio that the power to set aside laws passed by the general assembly, over which the people exercise the veto power through the referendum, is to be exercised with the greatest care. Not only does the long-established rule laid down in Cass v. Dillon, 2 Ohio St., 607, still obtain in all its restrictive effect, but the privilege of exercising the vast responsibility of this power has been hedged about with the most positive and drastic limitations. In Section 2, Article IV of the Constitution, the very section which gives the court its existence, it is provided that “No law shall be held unconstitutional and void by the supreme court without the concurrence of at least all but one of the judges.” Much significance is to be attached to the inclusion of this provision in the judicial article. It represents, as is known of all men, a compromise between those of our people who sought to deny to the court the right to exercise the power at all and those who felt that the supreme court should be un
Opinion, per NICHOLS, C. J.
hampered by any such restriction. Of all the states of the Union the constitution of ours alone has thus expressly granted this great power to its highest court, and we are reminded that it should be exercised with the greatest possible care and reserve.
The power was exercised almost from its beginning by the supreme court of Ohio, but always, until 1913, by and through a claim of an implied grant of power. A vast amount of discussion, with a display of much learning, has been had in recent years with regard to the exercise of this implied power, both as to the state and federal courts. As to the merits of this controversy, we are not called on to, and do not, express opinion; for happily in Ohio our power in this respect, with its pronounced limitation, is one of express grant.
It is proper to add, in conclusion, that while the attorney general, as a party, filed the demurrer to the answer of the defendant, wherein the alleged unconstitutional features of Section 22 were plead, he did so at the earnest request of his associated counsel, who are the attorneys in this case of The Ohio State Federation of Labor, but he, himself, both by brief and oral argument, most vigorously defends Section 22 as being a constitutional enactment.
The second ground of the demurrer is overruled.
Demurrer overruled and petition dismissed.
WANAMAKER, NEWMAN, JONES, MATTHIAS, JOHNSON and DONAHUE, JJ., concur.
Statement of the Case.
VERDUCCI V. CASUALTY COMPANY OF AMERICA.
Indemnity insurance – Powers of insurance companies — Rights of
employes of indemnified companies — Construction of Section 9510, General Code - Employes subrogated to rights of employer, when - Provisions of Section 9510-1, General Code – May not be defeated by contract, when.
1. The business of insurance is one of public interest, affecting
all classes of people and property, and is therefore properly
the subject of legislative regulation and control. 2. Domestic and foreign corporations engaged in the insurance
business in Ohio must conform their business and contracts to the provisions of the statutes of Ohio regulating and con
trolling the same. 3. Section 9510, General Code, must be construed in connection
with Section 9510-1, General Code, in determining the terms and provisions that may be written into a contract of insurance to indemnify employers against loss or damages for personal injury sustained by an employe in the course of his employment, through negligence of the employer, or negligence for
which the employer is liable. 4. No contract of insurance can be written under the authority
granted in Section 9510, General Code, that will defeat the provisions of Section 9510-1, General Code, subrogating the injured employe who has recovered judgment against his employer for injuries sustained in the course of his employment through the negligence of his employer, or negligence for which the employer is liable, to all the rights of the employer under
such contract. 5. A provision in such a contract of insurance that no action can
be brought thereon except by the employer, or that no action can be brought thereon until a judgment obtained by the employe against his employer has been fully paid and satisfied, is in conflict with the provisions of Section 9510-1, General Code, and void.
(No. 15392 — Decided May 15, 1917.)
Error to the Court of Appeals of Cuyahoga county.
Statement of the Case.
On the 13th day of October, 1914, Antonio Verducci filed a petition in the common pleas court of Cuyahoga county, praying judgment against the Casualty Company of America, to recover upon a contract of indemnity issued by that company to H. H. Ensminger and G. R. Ensminger, partners, doing business under the firm name and style of Ensminger Brothers, whereby the Casualty Company of America agreed to insure and did insure Ensminger Brothers against loss and expense resulting from claim upon them, or either of them, for damages on account of personal injuries to any of their employes in the course of their employment, suffered through an accident occurring during the term of said policy, through the negligence of said Ensminger Brothers or negligence for which they were liable.
The petition avers that during the time said contract of indemnity was in force, the plaintiff, while in the employ of Ensminger Brothers, sustained serious bodily injuries through the direct and proximate negligence of his employers; that on the 22d day of May, 1912, he instituted a suit in the common pleas court of Franklin county, Ohio, against said Ensminger Brothers; that thereupon the Casualty Company of America, under the terms of its contract of indemnity, assumed by its counsel the sole and entire defense of the suit; that plaintiff recovered in the suit against Ensminger Brothers a verdict and judgment in the sum of $10,000 and costs, from which judgment no appeal was taken; that no part of this judgment has ever been paid; that Ensminger Brothers are insolvent;
and that the amount of this judgment and no part thereof can be realized upon execution issued against them. The prayer of the petition is that he may be subrogated to all the rights of Ensminger Brothers under this contract of indemnity against the Casualty Company of America.
The Casualty Company of America for answer to plaintiff's petition admits that the plaintiff was on the 23d day of August, 1911, in the employ of Ensminger Brothers, and that on said day he received serious bodily injuries, for which he recovered a judgment against the Ensminger Brothers in the sum of $10,000 and costs of suit, from which judgment no appeal was taken. It admits that no part of said judgment has ever been paid, that Ensminger Brothers are insolvent, and that the judgment is still unsatisfied.
The defendant further admits that prior to August 23, 1911, it executed, issued and delivered for a valuable consideration, its employer's liability policy to Ensminger Brothers, whereby it agreed to insure and did insure them against loss and expense resulting from claim made upon them for damages on account of bodily injuries suffered by any of their employes through accident occurring during the term named in the policy, and denies each and every other allegation in the petition.
For its defense it avers that the policy executed and delivered to Ensminger Brothers provided among other things that defendant's liability for an accident resulting in injuries to one employe was limited to $5,000; that said policy further provided as follows: