#### The State, ex rel. Herbert, Atty. Genl., Appellee, *v.*Whims, Appellant.

(No. 3314

Decided May 29, 1941.)

*Mr. Thomas J. Herbert,*attorney general, and *Mr. William J. Berwanger,*for appellee.

*Mr. John H. Cooper,*for appellant.

Geiger, P. J.

This action involves an appeal from the judgment of the court below based upon a verdict of the jury finding in favor of the plaintiff, Thomas J. *40Herbert, attorney general, on behalf of Grover Williamson, in the snm of $1002.29.

The action was brought by the Attorney General under favor of Section 1465-74, General Code, providing for the redress of an employee when the employer has failed to comply with the Industrial Commission Act. This section provides in substance that any employee injured in the course of employment, whose employer has failed to comply with the provisions of Section 1465-69, General Code, may, in lieu of proceeding against his employer by civil action as provided by Section 1465-73, General Code, file his application with the commission for compensation, and the commission shall hear such application in like manner as other claims and shall make an award as if such employer had complied with the provisions of Section 1465-69. In the event of the failure of the employer to pay such compensation, it is provided that the same shall constitute a liquidated claim for damages in the amount so fixed by the commission and the commission shall certify the same to the Attorney General who shall institute a civil action for the collection of such award. The section further provides that in such action it shall be sufficient for plaintiff to set forth a copy of the record of the proceeding's of the commission relative to such claims as certified by the commission and to state that there is due to plaintiff a specified sum; and that *“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 act provides for the filing of other pleadings and that as soon as the issues are made the case shall be advanced. The amount recovered in such action from such employer is to be paid into the state insurance fund.

The petition alleges that on the 18th of March 1940 *41the commission made an award against the defendant, Jackson D. Whims, in favor of Grover Williamson, which was duly certified and a copy attached. The petition alleges that there is due the plaintiff the amount of $1,002.29.

To this petition was attached a certified copy of the finding and order of the commission.

The defendant answered admitting that the commission made the finding and award, but denying all other allegations, and stating that on or about June 16, 1939, the only person employed by him for farm labor upon his farm was Grover C. Williamson, and that he did not have in his employ any other person or persons at or about said time.

Section 1465-61, General Code, provides that the term “employee” shall be construed to mean every person in the service of an employer employing three or more workmen regularly in the same business under any contract for hire, express or implied.

The evidence discloses that Jackson D. Whims is a farmer of Franklin county opérating about 400 acres in Franklin county. He employed claimant to do general farm work on one of his farms of 220 acres. The claimant was employed by the defendant on two separate occasions, the first beginning in 1933 and terminating in 1936, the compensation varying during that period. He was re-employed in 1939. During the early part of that summer while Mr. Williamson was milking a cow he was struck in the eye by the cow’s swishing tail, and his sight was seriously impaired. Thereupon Williamson quit the employ, as did his sons who also worked on the defendant’s farm.

The definite defense is made that Williamson was the only person employed by Whims, it being claimed that Williamson was an independent contractor and that while his three boys worked with him on Whims ’ farm at the time of the accident they were as a matter *42of fact not working for Whims, bnt were working for their father, Williamson, and that therefore Whims did not have in his employ at that time three or more operatives.

We have carefully read the record in this matter and readily arrive at the conclusion from the testimony of Grover Williamson, the father of Kenneth, Chester and Paul Williamson, as well as from the statement made by the defendant Whims, that the sons of Grover Williamson, at least during the latter period of employment, when all but one had reached the age of majority, and two were married, were working as employees of Whims and not as employees of their father. Whims was accustomed to pay the entire compensation, which during the latter period of employment was $125 per month, to the father, with instructions to divide it between the boys, but nevertheless there is sufficient evidence to justify the jury in finding that the boys were employed for farm work by Whims notwithstanding the payment of the compensation in a lump sum to the father.

The case of *Industrial Commission*v. *Laird,*126 Ohio St., 617, 186 N. E., 718, holds that the law indulges no presumption that an employee is either a servant or an independent contractor and the burden is upon the party having the affirmative to show the relation to be such as to entitle him to recover. Where the claim is made on one side that the party injured was an employee and on the other side that he was not an employee but an independent contractor, the burden is upon the claimant to prove by the greater weight of the evidence that he was such employee at the time of the injury. If the claimant offers some testimony tending to prove at the time of the injury that he was an employee, the issue should be submitted to the jury under proper instructions and failure to do *43so constitutes error. Paragraph four of the syllabus of that case reads:

“The vital test, in determining whether a person employed to do a certain work is an independent contractor or a mere servant, is the right of control over the work reserved by the employer.”

In the case at bar the employer testifies that he controlled the work and, further, all of the boys testified that they reported to Whims daily for instructions as to what he wished done and followed those instructions. There is no claim made that the father claimed a right of control over the work done by his sons to the exclusion of the landowner. The testimony is clear that upon the second engagement of the father :by the landowner, when the boys had reached majority, the father told Whims that the boys were at liberty to exercise their own judgment as to whether they should go back to the farm or continue in the work in which they were -then severally engaged, free from any connection with the father. We, therefore, find that at the time of the accident, three or more workmen were regularly employed in the farming enterprise, each under a separate contract.

The next question raised is the claim that the provisions of Section 1465-74, General Code, that “ 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”*are unconstitutional. (Italics ours.)

Counsel for defendant urges that this section places the burden upon the defendant to overcome the finding of the commission, whereas the burden should be upon the plaintiff to establish all the facts essential to his recovery by a preponderance of the evidence, and that this violates the Constitution. On the other hand, it is urged by the state that the provision of this statute is not unconstitutional since it simply provides that *44undér certain conditions the finding of the commission should be *prima facie*evidence of a certain state of facts, and that the defendant had ample opportunity to meet this *prima facie*evidence by the production of his evidence. The words *“prima facie”*as used in statutes merely mean a fact presumed to be true unless disproved by some evidence to the contrary, but they always imply that the proper party shall have the opportunity of offering proof in rebuttal of the *prima facie*facts. *“Prima facie”*in this case is a presumption on appeal-that the order of the commission, based upon facts presented to it, is just, reasonable and correct, which presumption is subject to be overcomp or rebutted by the facts in the record as found by this reviewing court.

The section in question has been before the court in several cases, in the first of which the question of its unconstitutionality was based upon the fact that it did not provide for the trial by jury before the commission.

One of the most frequently quoted cases is that of *State, ex rel. Turner,*v. *Fassig,*first reported in 5 Ohio App., 479, wherein it was held that the provisions of Section 27 of the act (Section 1465-74, General Code, 103 Ohio Laws, 82), fixing the liability of noncomplying employers for injuries to employees, are constitutional. This case was reviewed and reported by the Supreme Court, in *Fassig*v. *State, ex rel. Turner,*95 Ohio St., 232, 116 N. E., 104, where it is held that in the exercise of the power granted by the Constitution to pass a compulsory compensation law, the General Assembly is authorized to include all such reasonable provisions as are necessary to make the law effective; that in providing for the enforcement of its enactments the Legislature may clothe administrative officers with power to ascertain whether certain specified facts exist without delegating to such *45officers legislative or judicial powers; and that the provisions of Section 1465-74, General Code, constitute a valid exercise of legislative power not repugnant to the Constitution.

The act at that time did not contain the provision that the finding of the commission should be *prima*' *facie*evidence, but the attack was directed against the lack of an opportunity for trial by jury before the commission fixed the compensation. The case of *Pittsburg Coal Co.*v. *Industrial Commission,*108 Ohio St., 185, 140 N. E., 684, holds that Section 1465-74, General Code, provides an adequate remedy by due course at law, whereby the employer, when sued for the compensation fixed, may contest all jurisdictional facts necessary to be determined by the- commission before making an award for compensation. The matter is discussed by Jones, J., delivering the opinion of the court, on page 190.

*DeWitt*v. *State, ex rel. Crabbe, Atty. Genl.,*108 Ohio St., 513, 141 N. E., 551, holds that Section 1465-74, General Code, is a valid and constitutional enactment, not repugnant to either the federal or state Constitution. This decision held that the provision of the act as to the 50 per cent penalty was constitutional.

The case of *State, for benefit of Bredwell,*v. *Hershner,*118 Ohio St., 555, 161 N. E., 334, held that the clause contained in the section imposing 50 per cent penalty, in addition to the statutory award, is unconstitutional and void, but the decision did not criticize the lack of a jury trial or the *prima facie*provision. The very matter here in question was under consideration by the Court of Common Pleas of Hamilton county, Gorman, J., afterwards a member of the Supreme Court, rendering the opinion. It is there held that the section in question which provides that the certified copy shall constitute *prima facie*evidence of the truth of the facts therein contained, places upon *46the employer the burden of proving that the injury did not occur during the course of employment.

“Such statute is within the power of the Legislature to prescribe the rules of evidence and methods of proof, and to provide that certain facts shall be *prima facie*evidence or presumptive evidence of other facts, if there is a natural and rational evidentiary relationship between the facts proved and those presumed, there being no vested right in rules of common law as guides of conduct.”

The court quotes many cases and its decision deserves a careful reading.

Our statutes are replete with provisions that under certain conditions the findihg of a ministerial officer shall be *prima facie*evidence of certain facts. A provision that is often called to our attention is that a speed beyond a certain rate is *'prima facie*evidence of a speed that is greater than is reasonable and proper. This provision does not in any way prevent a person who exceeds such speed from showing either that he was not guilty of the speed claimed or that under the peculiar circumstances it was not greater than was reasonable and proper.

The claim is made that there is error in the instructions of the court. We have gone over this carefully and see no reason why the same should be criticized, nor any instruction which would give rise to prejudicial error.

The judgment of the court below is affirmed.

*Judgment affirmed,.*

Geiger, P. J., Barnes and Hornbeck, JJ., concur.