Peterson v. Sorensen , 91 Utah 507 ( 1937 )

In the complaint it in substance is alleged that the defendant owned and operated a furniture store and was engaged in selling at retail furniture and other supplies; that the plaintiff was an employee of the defendant in selling goods and supplies at the store; that the defendant had in its employ more than three employees and was subject to the provisions of the Workmen's Compensation Act, but had neglected to comply with the act, particularly in failing to secure workmen's compensation insurance as by the act provided; that the defendant in the course of his business maintained and operated an elevator from floor to floor of the store; that when the elevator was not on the main floor the shaft at such place was open and unguarded; that the premises were dark and unlighted, and that due care required the premises to be lighted and the elevator shaft guarded by a gate or other guards to prevent employees in the course of their employment from falling into the shaft; that the defendant failed and neglected to have the premises lighted or the shaft guarded by a gate, or by other guards; and that by reason of such negligence the plaintiff, while in the course of his employment and in the discharge of his duties about the premises, fell into the open shaft and to the bottom thereof and was injured.

The defendant by its answer admitted some of the material allegations of the complaint, denied others, and affirmatively alleged that whatever injuries were sustained by the plaintiff were due to his own negligence, and further pleaded that the action was barred by subdivision 1, § 6468, Comp. Laws Utah 1917, which provided that an action for liability created by statute was required to be brought within one year from the time the cause of action accrued; the accident having occurred December 22, 1928, and the complaint filed August 31, 1932.

The case was tried to the court and a jury, resulting in a verdict and judgment in favor of the plaintiff, from which the defendant prosecuted this appeal. The chief assignments, and as stated in the prevailing opinion, relate (1) to the alleged bar of the statute, and (2) to portions of the court's charge.

I fully concur in the views expressed in the prevailing opinion and in the holding that the action was not predicated upon a liability created by statute and hence was not barred by the pleaded statute, and that the four-year period and not the one-year period of limitation applied. In support of the proposition, I, however, wish to cite the further and additional authorities and cases bearing on the subject: 28 R.C.L. 829; 71 C.J. 1487, §§ 1502, 1503; Preece v. Oregon S.L.R. Co.,48 Utah 551, 161 P. 40; Jeremy Fuel Grain Co. v. Denver R.G.R. Co., 60 Utah 153, 207 P. 155; Pomeroy's Code Remedies (4th Ed.) §§ 452-454, §§ 459-462; Hawkins v. Iron ValleyFurnace Co., 40 Ohio St. 507; Hocking Valley R. Co. v. NewYork Coal Co. (C.C.A.) 217 F. 727; Abell v. Bishop, 86 Mont. 478,284 P. 525; Miller Lux v. Batz, 131 Cal. 402,63 P. 680; Beeler v. Butte London Copper Devel. Co., 41 Mont. 465,110 P. 528; Jensen v. Aikman, 32 Idaho 261, 181 P. 525;Brown v. Roberts, 78 Mont. 301, 254 P. 419; Frost v.Witter, 132 Cal. 421, 64 P. 705, 84 Am. St. Rep. 53; Anderson v. Wetter, 103 Me. 257, 69 A. 105, 15 L.R.A. (N.S.) 1003;Emory v. Hazard Powder Co., 22 S.C. 476, 53 Am. Rep. 730. Such cases hold that a liability created by statute is one which would not exist but for the statute, and point out the distinction between a right or cause of action and remedy, and that the one is not equivalent to nor synonymous with the other.

That a civil action by an employee brought against an employer not complying with the Compensation Act, the denial by the statute of defense of negligence of a fellow servant, assumption of risk, and contributory negligence, do not constitute the creation of a liability where theretofore none existed, I also cite the following additional cases: Whiteneck v. Board ofCommissioners, 89 Okla. 52, 213 P. 865; Board of Com'rs v.Hancock, 96 Okla. 238, 221 P. 429; Bower v. Nunemaker,46 S.D. 607, 195 N.W. 506; Van Gorkom v. O'Connell, 201 Iowa 52,206 N.W. 637; Bayon v. Beckley, 89 Conn. 154, 93 A. 139;Beeler v. Butte London Copper Devel. Co., supra; Dillon v. Great Northern Ry. Co., 38 Mont. 485, 100 P. 960; French v. Cloverleaf Coal Min. Co., 190 Ill. App. 400; Kleet v.Southern Illinois Coal Coke Co., 197 Ill. App. 243. See, also, annotations of cases, 21 A.L.R. 1428.

I also concur in the holding that as to a noncomplying employer with the Compensation Act, the employee has the choice either of claiming compensation under the Workmen's Compensation Act or to maintain a civil action against the employer for damages sustained by reason of personal injury arising out of or in the course of employment.

I, however, do not concur in the holding that prejudicial error was committed by the court in its charge to the jury and referred to in the prevailing opinion. As is seen, the action by the plaintiff was predicated on the ground that his employer had failed and neglected to comply with the Workmen's Compensation Act and as set forth in the prevailing opinion. At the conclusion of the evidence, the following facts or propositions were established without dispute: (1) That the plaintiff was an employee of the defendant; (2) that the defendant had more than three employees in his employ and was subject to the Workmen's Compensation Act; (3) that he failed to comply with the provisions of such act; and (4) that the plaintiff as such employee sustained personal injuries arising out of or in the course of his employment. There is no dispute in the evidence as to that. The plaintiff also gave evidence to support the alleged negligence charged in the complaint. The sufficiency of such evidence to support such allegations is not questioned. As is seen by the statute, section 42-1-54, R.S. 1933, set forth in the prevailing opinion and relating to employers who failed to comply with the provisions of the Workmen's Compensation Act, the employer is rendered liable in a civil action to its employees for damages suffered by reason of personal injury arising out of or in the course of employment caused by the neglect or default of the employer or of any of his officers, agents, or employees, and in such an action such noncomplying employer may not avail himself of any of the defenses of the fellow-servant rule, or assumption of risk, or contributory negligence, and by the act it is expressly provided that "proof of the injury shall constitute prima facie evidence of negligence on the part of the employer and the burden shall be upon the employer to show freedom from negligence resulting in such injury." It was by reason of such provision of the statute and upon the undisputed evidence in the case that the court gave instruction No. 5 referred to in the prevailing opinion, to the effect that:

"The law under which this action is brought makes a happening of such an accident as this prima facie evidence of negligence, and the burden is upon the defendant to show that he was free from negligence. If you believe from the evidence that the defendant was guilty of any negligence, no matter how slight, which in any manner contributed to the accident in question, then your verdict should be in favor of the plaintiff and against the defendant."

Let it be conceded that such charge in the absence of the statute would be erroneous. The holding is that such a charge, notwithstanding the statute and the undisputed evidence bringing the case within the statute was erroneous and prejudicial. I do not concur in that. I think that by reason of the statute, the charge in substance and effect was proper and was in effect but charging the jury the substance and effect of the statute, in an action brought against a noncomplying employer for an injury to his employe arising out of or in the course of his employment. In view of the statute in such particular, the holding in the prevailing opinion that a plaintiff must prevail, if at all, upon the negligence charged, that a jury may not award damages for negligence not charged, nor for charged negligence not sustained by proof, that the jury by instructions should be confined to a consideration of the negligence charged and supported by proof, and that there is not anything in the Workmen's Compensation Act which justified a plaintiff to recover either for negligence not charged or for negligence charged but not proved, I think is erroneous and is not giving proper effect to the statute providing what shall constitute prima facie evidence of negligence in a civil action against a noncomplying employer, and casting on him the burden of proof to show his freedom from negligence. In other words, by the prevailing opinion that in a civil action against a noncomplying employer, the same rule applies as in tort actions generally, requiring allegations of specific acts of negligence on the part of the employer and that to entitle the employee to recover he was required to establish such allegations of negligence by a fair preponderance of the evidence, and all that the employer was required to do when evidence was adduced to establish such negligence against him was merely to go forward with evidence to controvert the evidence so adduced by the plaintiff. I think such a holding is taking the very essence, the very life, out of the language of the statute that "proof of the injury shall constitute prima facie evidence of negligence on the part of the employer and the burden shall be upon the employer to show freedom from negligence resulting in such injury." In such particular, I think it is evident that the Legislature intended to modify, and did modify, the rule as to burden of proof generally applicable to tort action, and to relieve the employee from the duty in the first instance of affirmatively alleging or establishing specific acts of negligence as a plaintiff generally is required to do in tort actions, and to cast the burden on the employer to show freedom from negligence resulting in the injury. That, I think, is a fair meaning of the statute and reflects the clear intent of the Legislature.

The appellant urges that the statute declaring what shall constitute "prima facie evidence of negligence on the part of the employer" is a mere presumption of law which, when evidence is adduced concerning which the presumption relates, the effect of the presumption is dissipated and has no evidentiary value. I think that does not reflect the true meaning of the statute. Presumptions of law are indulged independently and in the absence of evidence. No such presumption is declared by the statute. What the statute declares to be, not a presumption, but "prima facie evidence of negligence on the part of the employer," is based on proof of other facts and not independently of evidence. That is to say, to show and prove a case of liability against a noncomplying employer, it is requisite that the relation of employer and employee be alleged and established, that the employer was subject to the Workmen's Compensation Act and failed to comply therewith, and that the employee sustained personal injuries arising out of or in the course of his employment. When such facts are shown, then, declares the statute, proof of injury shall constitute prima facie evidence of negligence on the part of the employer. And then there is a clear distinction between a mere presumption of law and a presumption or inference of fact. 1 Elliott on Evidence, 103, § 83; 1 Jones, Comm. on Evidence (2d Ed.) 71, § 37. Such distinction is clearly pointed out by this court in the case of Chamberlain v. Larsen, 83 Utah 420,29 P.2d 355.

What is thus called a "prima facie case" or "prima facie evidence" is not indulged or inferred independently or in theabsence of evidence, but upon facts or circumstances shown orproven in the case. A "prima facie case" is that state of facts which entitles the party to have the case go to the jury [Millar v. Semler, 137 Or. 610, 2 P.2d 233, 3 P.2d 987]; that a "prima facie case" is evidence to be considered by thejury [White v. Hines, 182 N.C. 275, 109 S.E. 31; Eaker v. International Shoe Co., 199 N.C. 379, 154 S.E. 667]; that a "prima facie case" means that the case has proceeded uponsufficient proof to that stage where it must be submitted to thejury [Welch v. Creech, 88 Wash. 429, 153 P. 355, L.R.A. 1918A, 353]; that a "prima facie case" is one made out by proper and sufficient testimony, one which is established by sufficient evidence, and can be overthrown only by rebutting evidence adduced on the other side. Purity Ice Cream Dairy Co. v.Adams Express Co., 217 Mich. 593, 187 N.W. 296; Gilmore v.Modern Brotherhood of America, 186 Mo. App. 445, 171 S.W. 629.

The authorities further show that the expressions, "res ipsa loquitur," "prima facie evidence," and "prima facie case," are used synonymously, and signify nothing more than evidence to be considered by the jury in connection with all other evidence in the case (White v. Hines, supra) and that the phrase "prima facie evidence" (the language used in the statute under consideration) is such evidence as in judgment of law is sufficient to establish the fact and, if not rebutted, remains sufficient for the purpose (Ballentine's Law Dictionary, 1009); that it is evidence sufficient to establish a fact unless rebutted and is that degree of proof which, uncontradicted, is by itself sufficient to establish the truth of a legal principle asserted by a party, and suffices for proof of a particular fact (4 Nicholls, App. Evid. 3691); that prima facie evidence of fact is in law sufficient to establish a fact unless rebutted or until overcome by other evidence (Bouvier's Law Dict.; Baldwin's Cent. Ed. p. 974); that prima facie evidence is sufficient to show the existence of the fact it is adduced to prove unless overcome by counter evidence and is sufficient to support a verdict in favor of the party by whom it is introduced (23 C.J. 9, § 1735); it means that the proponent having the first duty of producing some evidence in order to pass the judge to the jury, has fulfilled that duty, satisfied the judge, and may properly claim that the jury be allowed to consider it in the case, sufficiency of evidence to go to the jury (5 Wigmore on Ev. [2d Ed.] § 2494, p. 455). A leading case on the subject cited by lexicographers and by courts is Kelly v. Jackson, 6 Pet. 622,8 L. Ed. 523, wherein Mr. Justice Story said:

"What is prima facie evidence of a fact? It is such as, in judgment of law, is sufficient to establish the fact; and, if not rebutted, remains sufficient for the purpose. The jury are bound to consider it in that light, unless they are invested with authority to disregard the rules of evidence, by which the liberty and estate of every citizen are guarded and supported."

Other courts have said that "prima facie evidence" is proof of the case upon which the jury may find a verdict unless rebutted by other evidence, and that such evidence is to be weighed together with the other evidence [Uptmore v. State,116 Tex. Crim. 181, 32 S.W.2d 474]; that prima facie evidence means sufficient evidence upon which a party will be entitled to recover if his opponent produces no further testimony [EckmanChemical Co. v. Chicago N.W. Ry. Co., 107 Neb. 268,185 N.W. 444]; means evidence which standing alone and unexplained maintains the proposition and warrants the conclusion to support which it is introduced [Chandler v. Prince, 217 Mass. 451,105 N.E. 1076]; is such evidence as in the judgment of the law is sufficient to establish the fact, and if not rebutted remains sufficient for that purpose. Hamilton v. Blakeney,65 Okla. 154, 165 P. 141; Hargis v. State, 33 Okla. Crim. 283,243 P. 986. To the same effect, see, also, Southern Ry. Co. v.Wessinger, 32 Ga. App. 551, 124 S.E. 100; Dodson v. Watson,110 Tex. 355, 220 S.W. 771, 11 A.L.R. 583; Gallup Co. v.Rozier, 172 N.C. 283, 90 S.E. 209; Caffee v. State,11 Okla. Crim. 485, 148 P. 680. To that effect also is the case ofMcIntyre v. Ajax Min. Co., 20 Utah 323, 60 P. 552.

The authorities thus cited hold that a "prima facie case" or "prima facie evidence" is one not only sufficient to let the case to the jury, but also to be considered by the jury as evidence, and if so regarded by the jury may be sufficient to support a finding as to the proposition so established by the prima facie case. The cases heretofore cited clearly show that. However, I call special attention to the case of FrankMeline Co. v. Kleinberger, 108 Cal. App. 60, 290 P. 1042,1043, wherein it is said:

"Appellant argues here that the appellate court held merely that the facts as presented by plaintiff sufficed to make out a prima facie case, and that any evidence contradictory of the facts adduced by plaintiff was sufficient to overthrow this prima facie showing. Such is not the law, nor can authority be cited in support thereof. A prima facie case having been once established, it was a matter for the trial court [to whom the case was tried, sitting without a jury] to determine when and if the showing so made was overcome by evidence offered to the contrary."

Thus, what the Legislature declared to be "prima facie evidence" of negligence on the part of the defendant, the appellant erroneously calls a "presumption of law," and then to show that "presumptions of law" have no evidentiary value he cites the case of Ryan v. Union Pac. R. Co., 46 Utah 530,151 P. 71; Clark v. Los Angeles S.L.R. Co., 73 Utah 486,275 P. 582; State v. Steadman, 70 Utah 224, 259 P. 326; State v.Green, 78 Utah 580, 6 P.2d 177; and In re Newell's Estate,78 Utah 463, 5 P.2d 230. But let it be noticed the kind of such cases in which the term "presumptions of law" was applied. None was in a case where by statute or otherwise it was declared or held as to what proof of facts or what proof shall constitute a "prima facie case" or "prima facie evidence" to establish a fact or proposition, here negligence of the defendant. Such cited cases are all cases where a "presumption of law" was indulged independently or in the absence of evidence. The cited Ryan and Clark Cases each are to the effect that independently and in the absence of evidence, the law presumes due care, and that when evidence is adduced with respect to which the presumption is indulged, the presumption ceases and has no evidentiary value and the fact of care or negligence was to be determined on the evidence adduced. The Steadman Case dealt with the presumption of innocence, a clear presumption of law, and that independently and in the absence of evidence, every person is presumed to be innocent, but when evidence is given concerning the guilt or innocence of the accused, the presumption ceases and has no evidentiary value and the guilt or innocence determined upon the evidence adduced. The Green Case dealt with a presumption of sanity, that independently or in the absence of evidence every one is presumed sane, again a clear presumption of law, but when evidence was adduced concerning the sanity or insanity of the accused, the presumption of sanity ceased, and that the question of sanity or insanity was to be determined upon the evidence adduced. The Newell Estate Case dealt with a statute that when a testator omits to provide in his will for any of his children, etc., unless it appears that such omission was intentional, such child, or the issue of such child, must have the same share in the estate of the testator as if he had died intestate. Such statute was construed by this court prior to the Newell Estate Case, that when the testator omitted to provide for his child, etc., a presumption, independently or in the absence of evidence, arose that such omission was unintentional, unless by the will itself or by intrinsic evidence it was shown that the omission was intentional; and that when evidence was adduced concerning the question of whether the omission was intentional or unintentional, the matter was to be determined upon the evidence adduced and not upon the presumption. In the Newell Estate Case both parties regarded the presumption as a "presumption of law," one to be indulged and applied as are all "presumptions of law," independently and in the absence of evidence, and so was it considered by the court. But how unlike is such a case with the instant case, where the Legislature by the statute in question did not independently or in the absence of evidence deal with any presumption, but in a civil action predicated on negligence brought by an employee against his noncomplying employer, in unmistakable terms declared what proof of facts shall constitute "prima facie evidence" of negligence of the employer, sufficient evidence to justify a finding of negligence, and as in all cases where a prima facie case is established by sufficient evidence either direct or indirect to be considered by the jury or other trier of facts in connection with all other evidence in the case. The statute has nothing whatever to do with presumptions either of law or of fact. It simply defines what proof of facts shall constitute "evidence" of negligence on the part of the defendant, and if the question of negligence is controverted, then an issue of fact arises for determination by the trier of facts. Thus the force and effect of the statute as to what the Legislature declared to be "evidence" of the employer's negligence may not be avoided nor minimized by calling it something else, a mere "presumption of law."

There are statutes of various states where railroad companies are required to fence their right of way to keep cattle on adjoining lands from wandering or straying upon the right of way, and where domestic livestock on adjoining premises get upon the right of way and are injured or killed through the operation of an engine or train of cars by the railroad company, a prima facie case of negligence is established without allegations or proof of negligent acts of the railroad company in the operation of the engine or train of cars, casting the burden upon the railroad company to show its freedom from negligence. 2 Shearman Redfield on Negligence (6th Ed.) 1073, § 432. Such prima facie case is not dissipated and does not cease to have evidentiary value upon proof made that the defendant was free from negligence. It but raises an issue of fact, and may or may not, depending upon the weight given it by the trier of fact, overcome or outweigh the showing made by the prima facie case.

So, too, where a keeper or proprietor of a hotel or restaurant dispenses and serves food to guests and customers to be consumed on the premises of the hotel or restaurant keeper or proprietor, and it be shown that putrid, infected, or deleterious food was served by the hotel or restaurant keeper or proprietor to such guest or customer who consumed portions thereof, resulting in serious illness, a prima facie case predicated on tort is established by proof of such facts, without allegations or proof of specific acts of negligence on the part of the hotel or restaurant keeper or proprietor; and though evidence be adduced tending to show want of negligence on his part, still the prima facie case so made is not dissipated, nor does it cease to have evidentiary value.

So, also, in a case where proof of facts is made giving rise to a prima facie case of negligence by applying the doctrine or maxim of res ipsa loquitur, such prima facie showing "affords reasonable evidence in the absence of explanation by the defendant that the accident arose from want of proper care" (1 Shearman Redfield on Neg. [6th Ed.] §§ 58A and 58B), and as by the authorities heretofore referred to the expressions, "prima facie case," "prima facie evidence," and "res ipsa loquitur" are used synonymously.

When the instruction under consideration is thus considered concretely and in view of the statute and the undisputed evidence, I think no error was committed in the giving of the instruction.

Because plaintiff specifically alleged negligence on the part of defendant, a noncomplying employer, did not deprive the plaintiff of the aid and benefit of the statute as to what constituted prima facie evidence of negligence. By analogy, the same rule in such particular applies here as to an action against a carrier for personal injuries when it is shown that the injuries were sustained under circumstances rendering the maxim of "res ipsa loquitur" applicable, and where the plaintiff is not required in the first instance to prove any particular defect by evidence other than by establishing the prima facie case, even though the facts with respect to defects are alleged with particularity in the complaint. Dearden v. San Pedro, L.A. S.L.R. Co., 33 Utah 147, 93 P. 271, 273. In that case, said the court:

"When it is shown that a person has sustained an injury under circumstances where the maxim referred to applies, he is not required in the first instance to prove any particular defect by evidence other than by the prima facie presumption, although the facts with respect to some defect are unnecessarily alleged with particularity in the complaint. All that the plaintiff here was required to aver and prove to entitle him to recover was the relation of passenger and carrier, that the accident through which he received his injuries was connected with the means or instrumentality used by the defendant in the transportation, and an injury resulting therefrom. When such facts were shown, a prima facie presumption arose that the accident was occasioned by the defendant's negligence, and the burden was cast on it to show that it was not at fault and that the accident was not caused by its negligence. Because the plaintiff alleged and attempted to prove more than he was required to do did not displace the presumption of negligence as an element in his case nor change the rule of evidence with respect to the burden of proof. Had the plaintiff averred his freedom from contributory negligence when, as is the rule in this jurisdiction, such averment is not essential, the burden of proving such fact being upon the defendant, it might almost as well be said he was required to prove it before he was entitled to recover. The essential and ultimate fact alleged in the complaint and in dispute was the negligence of the defendant in causing the collision. A prima facie case of such negligence was proven by the showing of the circumstances of the collision heretofore referred to. That the plaintiff averred and undertook to show a defective brake chain as evidence of negligence causing the collision, did not waive nor affect the presumption of negligence arising from the circumstances, which was in itself sufficient to show such negligence. A relevant fact may frequently be proved in several different ways. The circumstances from which the presumption referred to arose were evidence for plaintiff of the fact of the defendant's negligence causing the collision. The evidence of a defective brake chain which the plaintiff produced was also some proof of such negligence, and was in aid of and not adverse to the presumption. And though he had failed in such proof, the presumption of negligence which had been shown to exist independent thereof was in no wise displaced nor weakened."

To that effect are also the following cases directly in point:Kluska v. Yeomans, 54 Wash. 465, 103 P. 819, 132 Am. St. Rep. 1121; Cassady v. Old Colony Street Ry. Co., 184 Mass. 156,68 N.E. 10, 63 L.R.A. 285; Lippert v. Pacific Sugar Corp.,33 Cal. App. 198, 164 P. 810; Palmer Brick Co. v. Chenall,119 Ga. 837, 842, 47 S.E. 329.

So here, under the statute, an employee to state a case of negligence against a noncomplying employer, all that he was required to aver was negligence in general terms arising from allegations that plaintiff was an employee of defendant; that defendant was subject to the Workmen's Compensation Act and had failed to comply therewith by not securing compensation insurance as by the act provided; and that plaintiff was injured in the course of his employment, without otherwise alleging specific acts of negligence, and if he did so and though no proof was made of such alleged specific acts, yet that did not deprive him of the aid or benefit of what the statute declared to be prima facie evidence of negligence of the employer.

Particular criticism is made of the language of the charge that, "if you believe from the evidence that the defendant was guilty of any negligence, no matter how slight, which in any manner contributed to the accident in question, then your verdict should be in favor of the plaintiff and against the defendant." Tested by the general rule applicable to tort actions, as my Brethern do, such a charge may well be objectionable. But how about the statute? Are we, notwithstanding the statute, going to hold that an employee bringing a civil action against a noncomplying employer is, as in tort actions generally, required to allege specific acts of negligence on the part of the employer and to entitle the employee to recover he has the burden of proof to establish such allegations of negligence, thereby applying with full force the familiar maxim or doctrine, alegata et probata; and all that the employer was required to do, when evidence was adduced to establish such negligence against him, merely to go forward with evidence to controvert what is so produced against him? That in effect is what my Brothers hold. That, I think, in view of the statute, is wrong. If what my Brothers hold is true, then, of course, the charge is wrong. But to so hold is to take the very essence, the very life, out of the statute. By its language that "proof of the injury shall constitute prima facie evidence of negligence on the part of the employer, and the burden shall be upon the employer to show freedom from negligence resulting in such injury," the Legislature intended to modify, and did modify, the rule as to burden of proof generally applicable to tort actions. Just as clear is it that by such language it was intended to declare that where an employer subject to the Workmen's Compensation Act refused or failed to comply therewith he became liable in a civil action for damages for an injury sustained by his employee in the course of his employment, and upon proof of such facts and injury, the burden of proof, the onus probandi, not a mere duty of going forward with evidence, was cast on him to show his freedom from negligence resulting in the injury, to show that he was not guilty of any negligence resulting in the injury, clearly shifting the burden of proof, or onus probandi, from the shoulders of the employee and casting it on the shoulders of the employer. In other words, in such case the Legislature relieved the employee from the duty of affirmatively establishing specific acts of negligence as generally required in tort actions, and cast the burden on the employer to show his freedom from negligence resulting in the injury; and unless he by a fair preponderance of the evidence shows such freedom, not partly but wholly, resulting in the injury, the employee is entitled to prevail. That, I think, is a fair meaning of the statute and reflects the clear intent of the Legislature.

The cases cited in the prevailing opinion and others cited by the appellant to the effect that to entitle a plaintiff to recover he must allege and prove specific acts of negligence, otherwise may not recover, are cases based on general tort actions not controlled or influenced by any statute such as in the instant case prescribing what shall constitute a prima facie case of negligence, and hence have, as I think, no application to such a statute as here under consideration in an action brought against a noncomplying employer subject to the Workmen's Compensation Act.

The case of State v. Barretta, 47 Utah 479, 155 P. 343,347, also is cited in the prevailing opinion as an authority condemning instruction No. 5 here complained of. It seems to me there is a clear distinction between the Barretta Case and the instant case. The Barretta Case was a criminal case. In that case it was distinctly stated that:

"There was no shifting of burden, either of proof, or duty of going forward. The state at the start had the burden to establish beyond a reasonable doubt every essential allegation of the information, and that burden, without shifting, remained with the state throughout the entire case. So, when there is no shifting of burden of proof or duty of going forward, we see no good purpose, in the submission of a case, to inform the jury what constitutes a prima facie case."

Of course, in a criminal case the burden of proof never shifts to the defendant. It throughout the whole case on every proposition is with the State. But here, by the very language of the statute, there is a clear shifting of burden of proof. The statute expressly provides that in an action against a noncomplying employer, when the relation of employer and of employee is shown, noncompliance with the Workmen's Compensation Act by the employer and an injury to an employee arising out of or in the course of employment constitute prima facie evidence of negligence against the employer and cast the burden upon the employer to show his freedom from negligence. There thus is as much difference between the instant case and the Barretta Case as between night and day. In the one, there is no shifting of burden of proof; in the other, there is a clear shifting of burden of proof, rendering the case wholly different from ordinary or general tort action.

But aside from this, the court in other portions of the charge defined the term "negligence," the term "ordinary care," and "proximate cause," and as such terms usually are defined and of which no complaint is made; charged with respect to the duty of the defendant to furnish plaintiff a reasonably safe place to work, and that if such duty was not discharged resulting in injury to plaintiff, he was entitled to recover; and further charged that if the defendant failed to guard and protect the open shaft in which the elevator was operated and such failure proximately caused or contributed to the accident and injury, plaintiff was entitled to recover. The court also charged that if the jury found from the evidence that the alleged injuries of plaintiff were occasioned by his own negligence, and not contributed thereto byany negligence on the part of the defendant, his officers, agents, or employees other than the plaintiff, then "you must find" for defendant and against plaintiff, no cause of action.

Thus in view of the statute declaring what shall constitute prima facie evidence of negligence of defendant and of the meaning and legal effect of the term or phrase "prima facie evidence," as shown by the authorities, that the defendant had the burden of proof to show his freedom from negligence, and in view of the whole charge, I am of the opinion that defendant was not prejudiced in any substantial right by instruction No. 5 of which complaint is made, hence the judgment of the court below should be affirmed. Because this is the first case presented to this court brought under and involving a consideration and application of the statute in question, and because what we now determine and decide with respect thereto will establish a precedent in other cases brought under the statute, I feel justified in stating my views as I have at rather unusual length.

WOLFE, J., being disqualified, did not participate herein.