Statement of the Case.

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 introduc

Opinion, per DONAHUE, J.

tion 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

Opinion, per DONAHUE, J.

employed Steve Korens, nor at the time of the accident, nor at any other time during his employ

ment.

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

Opinion, per DONAHUE, J.

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 nonwool 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

Opinion, per DONAHUE, J.

"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 Korens 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