42 N.E.2d 990 | Ohio | 1942
The sole question is: On whom does the burden of proof rest in an action brought by the Attorney General in the name of the state against a *238 non-complying employer based upon an award by the Industrial Commission pursuant to Section 1465-74, General Code, which makes a certified copy of the record of the commission's proceedings prima facie evidence of facts therein?
The pertinent part of Section 1465-74, General Code, reads thus: "In the event of the failure, neglect or refusal of the employer to pay such compensation to the person entitled thereto, or to furnish such bond, within a period of ten days after notification of such award, the same shall constitute a liquidated claim for damages against such employer in the amount so ascertained and fixed by the commission, and the commission shall certify the same to the Attorney General who shall forthwith institute a civil action against such employer in the name of the state, for the collection of such award. In such action it shall be sufficient for plaintiff to set forth a copy of the record of proceedings of the commission relative to such claims as certified by the commission to the Attorney General and to state that there is due to plaintiff on account of such finding and award of the commission a specified sum which plaintiff claims with interest. A certified copy of such record of proceedings in such claim shall be attached to the petition and shall constitute prima facie evidence of the truth of the facts therein contained."
The non-complying employer when sued on an award has a right by way of defense to set up among other things that the injury causing death was not received in the course of and did not arise out of the employment. Fassig v. State, ex rel. Turner,Atty. Genl.,
A good illustration of the principle is found inKlunk v. Hocking Valley Ry. Co.,
Likewise the case of Ginn, Admr., v. Dolan,
In the instant case plaintiff offered the certified copy of the proceedings and rested. Thereupon the defendant employer offered evidence which tended to show that the injury resulting in death was not received in the course of and did not arise out of the *240 employment. The plaintiff then offered evidence in rebuttal. Thus an issue of fact arose upon this defense. In charging that the burden of proof was on the defendant to prove his defense by a preponderance of the evidence the court committed prejudicial error. Under the rule, as heretofore explained, the burden of proof was upon the plaintiff throughout the trial and did not shift.
The Court of Appeals did not err in reversing the judgment of the trial court for so charging. Therefore the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, HART and ZIMMERMAN, JJ., concur.
BETTMAN, J., not participating.