APPLICATION FOR REHEARING
No. 3569.
BY THE COURT:Submitted on application for rehearing, consisting of two branches.
We have also received a supplemental brief on the application in the form of a letter from counsel for appellee, in which particular stress is laid upon the application of §26 GC, to the admissibility of the evidence in the death certificate.
We very fully discussed both questions urged on the application and are committed to the view which we expressed .in our original opinion.
We have also examined the question presented by the supplemental brief. Although the latter question is somewhat in doubt, we are still of opinion that the charge as to the prima facie case made by the death certificate was erroneous and prejudicial to the rights of defendant. See Warner v Rd., 31 Oh St 265; Westerman v Westerman, 25 Oh St 500; Bridgman v Bridgman, 27 Oh St 22; Woodruff v State, 36 Oh Ap 287.
All other matters were carefully considered in our original opinion to which we adhere. The application will be denied..
BARNES, P. J., HORNBECK and GEIGER, JJ., concur.MOTION TO CERTIFY RECORD
No. 3569.
Herbert S. Duffy, Columbus and Thomas J. Duffy, Columbus, for plaintiff-appellee, and for the motion. Thomas J. Herbert, attorney general, Columbus, and Robert E. Hall, assistant attorney general, Columbus, for defendant-appellant, and contra the motion. BY THE COURT:Submitted on motion of plaintiff-appellee to certify the record in this case to the Supreme Court of Ohio for review for the reason that the judgment upon which this Court of Appeals has agreed is in conflict with two other judgments pronounced upon the same question by other Courts of ApT peals, namely, Van Allen v Industrial Commission, 26 N. P. (N. S.), 179, Court of Appeals of Muskingum County, and Industrial Commission v Mounjoy, 36 Oh Ap 476.
The motion will be sustained. In sustaining this motion we are resolving all doubts as to our right to make certification and as to conflict in favor of the plaintiff-appellee. The conflict is more definite in Van Allen v The Industrial Commission than in Industrial Commission v Mounjoy, but we do not have the opinion of the Court of Appeals in the former case, and secure our information respecting the judgment in that court from a notation at the bottom of the first page of the case as reported in 26 N. P. (N. S.)
We also are moved to make the certification because of the fact that it will remove the case in its entirety to the Supreme Court where all questions urged in this court on review will be considered and determined. We are in considerable doubt if that part of the death certificate relating to the contributory causes of Stough’s death, to which counsel for the Commission objected, is in any view of the law admissible, but we did not hold that it was inadmissible, but that it was not sufficient to support the charge of the court that it was prima facie evidence of the fact therein stated to which objection was specifically made.
BARNES, P. J., and HORNBECK, J., concur. GEIGER, J., not participating.