
    No. 17687
    William Montanari v. Elizabeth Haworth.
    Error to the Court of Appeals of Muskingum county.
    PLEADING — (1) Averment in answer, that plaintiff’s injuries were caused by negligence of third party, not an affirmative defense — Burden of proof to show it, not on defendant — (2) ATTACHMENT —Automobile law — Liability criminally incurred— Order of authorized under 11819 GC.
   MATTHIAS, J.

1. In an action for damages claimed to have been caused by the negligent act of the defendant, his answer, which, in addition to a general denial, contained an averment that whatever injuries plaintiff sustained were caused by the negligence of a third party therein named does not state an affirmative defense, and an instruction of the court which places upon the defendant the burden of proving the negligence of such third party, and that such negligence was the proximate cause of plaintiff’s injury, is erroneous and prejudicial to the defendant.

2. Where damages are caused by the owner and driver of an automobile as the result of his violation of a criminal law of the state, and an action is brought by the person injured to recover therefor, such liability was criminally incurred and an order of attachment is authorized by paragraph 10, Section 11819, General Code.

Judgment reversed.

Marshall, C. J., Wanamaker, Robinson, and Jones, JJ., concur. Day and Allen, JJ., concur in the syllabus but not in the judgment.  