Plaintiff's decedent suffered a compensable accident July 21, 1938, while in the employ of the Ingham county road commission. Both cars were upset and he was pinned under the body of the truck. Defendant filed a report of compensable accident August 4, 1938, which alleged that plaintiff's decedent was killed instantly. The case came on for hearing. At the conclusion of the testimony it was announced as "closed with this exception, that the parties will confer and examine the record of the Ingham county road commission to determine *Page 322 the basis of computation for compensation if the dependents are entitled to same and such testimony will be submitted to the deputy commissioner by stipulation of counsel for the parties and such stipulation afterwards will be considered a part of the testimony in this case and upon which the deputy commissioner will arrive, together with the other testimony, at his conclusion." The case was then adjourned. An award was made by the deputy commissioner, whereupon defendant made an application for review in which it raised the question whether there was any evidence tending to show the deceased was engaged in the service of defendant or whether he was an independent contractor. Plaintiff then filed a petition to take additional testimony. The department of labor and industry said the petition should be granted in the furtherance of justice, and that such testimony was to be taken at the cost and expense of defendant. We think this was error.
The burden of proof was upon plaintiff to establish the ground for liability. The order of the department of labor and industry will be reversed as to the cost and expense of taking this testimony. In all other respects, it will be affirmed.
BUSHNELL, C.J., and SHARPE, CHANDLER, NORTH, McALLISTER, WIEST, and BUTZEL, JJ., concurred. *Page 323