Chakmakjian v. Lowe

TRAYNOR, J.

I concur in the judgment.

It is my opinion that as a matter of legislative policy section 3708 of the Labor Code places upon the employer the burden of proof, which remains upon him throughout the case. (Compare, Hunter v. Hunter, 111 Cal. 261, 267 [43 P. 756, 52 Am.St.Rep. 180, 31 L.R.A. 411]; Wilcox v. Wilcox, 171 Cal. 770, 774 [155 P. 95]; Estate of McNamara, 181 Cal. 82, 95 [183 P. 552, 7 A.L.R. 313]; O’Dea v. Amodeo, 118 Conn. 58, 65 [170 A. 486, 488]; Am. Law Institute, Model Code of Evidence, rule 703.) The employer in this case has not sustained that burden. It therefore serves no purpose to consider when the presumption was dispelled. That question would be pertinent only if the plaintiff had the burden of-proof, aided by the presumption. (See dissenting opinion in Speck v. Sarver, 20 Cal.2d 585, 590-598 [128 P.2d 16].)

Edmonds, J., concurred.