Epitomized Opinion

1. Plaintiff’s petition alleges that defendant regu larly employs more than five workmen, but does no1 allege whether it has or has not complied with the Workmen’s Compensation Law, so as to obtain th« immunity accorded by the Patten case (O. Sup. Ct June 14, 1921) and Toledo Cooker Co. case by an employer who has done so. But in absence of an affirmative averment to the contrary, it will be presumec that an employer doing business in Ohio, and subject to the law, has complied with rather than violated it.

2. In the Fleischman case, decided by the C. C. A, of this circuit, No. 7, 1922 (7 Abs. 179) it was held that these decisions were controlling on the federal courts and decisions of the court of appeals of this circuit to the contrary are no longer to be followed.