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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, 7706, 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 au

thorized 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

Statement of the Case.

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:

Statement of the Case

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

Statement of the Case.

$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

Statement of the Case.

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

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