Bunnell v. Parelius , 166 Or. 174 ( 1941 )

In the result reached by the majority, I concur. But finding that my reasoning is somewhat different from theirs, I prefer to delineate mine.

The majority say that if A owns a car which was driven by B at the time it injured C, an inference is permissible that B was A's agent at that time. To warrant such an inference, A's ownership and B's possession must be deemed circumstantial evidence of B's agency. The results which come from circumstantial evidence are inferences. When enough circumstances tending to evince a muted fact are proved so that after all probabilities have been weighed, the fact may be inferred from them, we say that the conclusion is the result of an inference. Inferences are deductions. They are deductions and nothing else. They are not the result of law, but of logic. Accordingly, if A's ownership and B's possession authorize an inference that B is A's agent, then the circumstantial evidence just mentioned still exists at the close of the trial. Therefore, if a motion for a directed verdict is made, some disposition must be made of the circumstantial evidence — it must either be believed or disbelieved. If it so happens that A, as a witness in his own behalf, swore that B was not his agent, his testimony is direct evidence submitted for the purpose of combating the indirect or circumstantial evidence. C may have good reason for distrusting the veracity of A, and yet have no means of discrediting him except so far as A's demeanor upon the witness stand repels confidence. Ordinarily, the conflict between circumstantial and direct evidence is an issue for the jury's determination. Accordingly, when the majority say that Parelius' motion for a directed verdict should have been sustained, they must first have weighed the evidence, both indirect and direct, and having found that the inferences drawn from the indirect (Parelius' bailment and Brown's possession) were much outweighed by the cogency of the direct evidence, they must have disregarded the indirect as unworthy of credit.

Let us see whether there are any other means of dealing with the situation.

If A owns a car which was driven by B at the time it injured C, any of the three following possibilities may be present: (1) The facts stated may be deemed circumstantial evidence warranting an inference that B was A's agent; or (2) recourse may be had to the well-established presumption that when owner and driver are not the same, the driver is presumed to be the owner's agent; or (3) the facts stated may warrant not only an inference but also a presumption that B was A's agent. See Wigmore on Evidence (3d ed.), sec. 2510a, and Department of Water and Power v.Anderson, 95 F.2d, p. 577.

Inferences and presumptions (of law) are not the same. The former are the result of logic and of reason; the latter are creations of the law. They are creations of the law in much the same sense as are corporations. To avoid being misunderstood, it may be well to note that presumptions of fact and inferences are the same. They are merely different names for the same thing. A presumption of law is a legal device employed for the purpose of temporarily relieving a party of the necessity of proving a fact. As a stop-gap it fills the void and enables the party to get safely past a nonsuit. It exacts of his opponent the first evidence upon the subject. The expedient employed is a presumption that the disputed fact exists. Some presumptions find their justification in probabilities and human experience. Others are based upon a supposition that the adversary is better able to show the nonexistence of the fact, if it does not exist, than is the proponent able to prove its existence. For instance, most writings are truly dated; therefore, the law creates a presumption that each writing bears its true dating as a means of dispensing with proof — needless in most cases — and of thereby expediting the trial. Upon the other hand, the presumption that the driver was the owner's agent recognizes that in most instances an injured party is less familiar with the relationship between the driver and the owner than is the latter. The presumption that the driver is the owner's agent is, therefore, an expedient to exact of the party best able to prove the true relationship the first evidence concerning it. In this way the injured individual gets past a defendant's motion for a nonsuit. Presumptions, which are not based upon human experience, may have but slight tendency to point to the facts, yet they are as serviceable to the party favored by them as the others. An example is the presumptions concerning survivorship among persons who died in a common disaster.

Let us note further the difference between an inference and a presumption. The former, as already suggested, is a voluntary conclusion; the latter is a compulsory or mandatory conclusion. The law demands that it be indulged in. For instance, in a criminal case all concerned with it must presume the innocence of the defendant until the contrary has been shown. This presumption must be indulged in even though some infer the presence of guilt. Whenever presumptions and inferences, drawn from the same circumstances, conflict, the former prevail. Inferences and presumptions are different in another respect: an inference will be discarded only when shown to be unsound. But a presumption is only an expedient. It, therefore, vanishes when it has served its purpose. It is like a chrysalis which takes wings and is gone. Its purpose while it exists is to coerce the adversary to submit proof. When it has performed its full coercive mission it has become functus officio, and then the existence or the nonexistence of the questioned fact is ascertained by ransacking through the evidence.

Let us see whether there is a presumption created by the law that the driver is the owner's agent, and if there is such a presumption, let us see whether there is anything in our laws which prohibits us from employing it. In Judson v. Beehive AutoService Co., 136 Or. 1, 294 P. 588, 297 P. 1050, 74 A.L.R. 944, it is said:

"Among the disputable presumptions enumerated in the statute (sec. 9-807, Oregon Code 1930), we find none that a person in possession of an automobile is presumed to be acting as an agent of the owner and for the latter's benefit. We, therefore, conclude that the prima facie case is based upon an inference and not a presumption."

Wigmore on Evidence (3d ed.), in a footnote to sec. 2499, describes the California statute (C.C.P. 1872, sec. 1963), of which our above-cited law is a counterpart, as an enumeration of "a number of standard presumptions" thus indicating that the enumeration is not complete. Our statute, by preceding the enumeration with the words "The following are of that kind", indicates that the enumeration is only a partial compilation of the disputable presumptions. It is easy to recognize the absence from our statute of a number of well-established presumptions; for instance, the presumption that a child less than seven years of age is mentally incapable of committing crimes; the presumption of physical incapacity of a male less than fourteen years of age to commit sexual crimes; the presumption that vehicle is owned by the individual whose name is printed upon it; and the presumption that death resulted from an accident or natural causes rather than from suicide. Accordingly, the absence of the presumption under investigation from the list compiled in sec. 9-807, Oregon Code 1930, which is now sec. 2-407, O.C.L.A., is not determinative. Section 2510a, Wigmore on Evidence, (3d ed.), states that the driver of an automobile is presumed to be the agent of the owner; the section cites many decisions in support of the statement. Hence, such a presumption exists. The reasoning of Mr. Justice McCAMANT, in overruling the petition for a rehearing in West v. Kern, 88 Or. 247, 171 P. 413, 171 P. 1050, L.R.A. 1918D, 920, is a good portrayal of the presumption. Without resorting to more analysis, I state my belief that the law created in favor of the plaintiff a presumption that Brown was Parelius' agent.

A presumption continues until overcome: sec. 2-405, O.C.L.A. The presumption in the present case enabled the plaintiff to escape a nonsuit; thus it performed one of its functions. Next, it coerced Parelius into taking the witness stand and delineating the circumstances concerning Brown and the car which the latter drove into collision with the plaintiff. From the evidence which thus came forth it appeared that neither Parelius nor Brown had the right to operate the car at the time of the accident. Parelius did not attempt to disprove the bases which had created the presumption (Parelius' bailment and Brown's possession), but, as just said, he established circumstances indicating that the owner of the car had prohibited its use and that Brown was not acting within the scope of his authority at the time he injured the plaintiff. This affirmative testimony was direct and positive. After this proof had been submitted, the plaintiff made no effort to refute it. Rather, he undertook to show that Brown at other times had endeavored to sell other cars — cars which Parelius owned. That proof, however, in no way affected the fact that the car which struck the plaintiff was not subject to sale at the time Brown took it. Therefore, Parelius' testimony concerning this car, which the Ladd Estate Company owned, was not questioned by the plaintiff. Under these circumstances, it seems to me that the presumption had exhausted itself. It no longer could avail the plaintiff anything. In short, it had disappeared from the case.

It is sometimes said that a presumption is evidence, and that, therefore, the presumptions germane to a case must be submitted to the jury so that they can be placed in the scales of justice and be weighed with the proof. Section 2-401, O.C.L.A., which treats inferences and presumptions as "indirect evidence," is relied upon as support for that view. Whatever may be the merits of that treatment of presumptions, they have no application to this case. If Brown was Parelius' agent, his status as such would not be evidence. Rather, the fact of his agency, deduced from the evidence, would be a deduction, inference, presumption, or, better yet, a conclusion. Being a conclusion drawn from the evidence, it could not be evidence. It would be the product of the evidence. I conclude, the presumption had spent itself before the defendant moved for a directed verdict. As has been said, the same facts which create a presumption may sometimes warrant an inference. If presumption and inference are alike, the plaintiff is doubly fortunate. Under favorable circumstances, it may be that an inference can be drawn that the driver is the owner's agent. Such an inference might be very reasonable if the vehicle is of a commercial type. In the present instance, the car was not of a commercial character. The hour of its operation was past midnight. Brown had never sold a car. His principal duty was to operate the gasoline pump, to grease cars and each morning place the used cars on the used-car lot. An inference must have substance; it can not be based upon speculation. The facts supporting it must be substantial. The scintilla of evidence rule is not employed in this state. Time after time we have said that the verdict must be supported by substantial evidence. In Consolidated Edison Co. v. NationalLabor Relations Board, 305 U.S. 197, 83 L.ed. 126, 59 S. Ct. 206, Mr. Chief Justice Hughes said:

"The companies contend that the Court of Appeals misconceived its power to review the findings and, instead of searching the record to see if they were sustained by `substantial' evidence, merely considered whether the record was `wholly barren of evidence' to support them. We agree that the statute, in providing that `the findings of the Board as to the facts, if supported by evidence, shall be conclusive,' means supported by substantial evidence. Washington, V. M. Coach Co. v. National Labor Relations Bd., 301 U.S. 142, 147, 81 L.ed. 965, 970,57 S. Ct. 648. Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Appalachian Electric Power Co. v. National Labor Relations Bd. (C.C.A. 4th) 93 F.2d 985, 989; National Labor Relations Bd. v. Thompson Products (C.C.A. 6th)97 F.2d 13, 15; Ballston-Stillwater Knitting Co. v. National Labor Relations Bd. (C.C.A.2d) 98 F.2d 758, 760."

In National Labor Relations Board v. Columbia Enameling Stamping Co., 306 U.S. 292, 83 L.ed. 660, 59 S. Ct. 501, Mr. Justice Stone said:

"Substantial evidence is more than a scintilla, and must do more than create a suspicion of the existence of the fact to be established. `It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' Consolidated Edison Co. v. National Labor Relations Bd.,305 U.S. 197, ante, 126, 59 S. Ct. 206, supra, and it must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury. See Baltimore O.R. Co. v. Groeger,266 U.S. 521, 524, 69 L.ed. 419, 422, 45 S. Ct. 169; Gunning v. Cooley,281 U.S. 90, 94, 74 L.ed. 720, 724, 50 S. Ct. 231. Appalachian Electric Power Co. v. National Labor Relations Bd., supra (C.C.A. 4th),93 F.2d 989)."

Circumstances can warrant the inference which the party requests to be drawn only when there is a logical and reasonable connection between the two; or, stated otherwise, the inference must be the probable and natural result of the circumstances.

When this cause was before us on a previous appeal (Bunnell v.Parelius, 160 Or. 673, 87 P.2d 230), we held that an inference was not warranted that Brown was Parelius' agent at the time of the accident. The facts in the present record are slightly different from those which were before us at that time. Some of them then had a greater tendency to prove an agency than those now before us. Possibly, by the process of speculation or guesswork, one could surmise that Brown was Parelius' agent at the time of the tortious conduct, but speculations, guesses and surmises are not the type of substantial evidence that is needed to sustain a verdict. The same reason that convinced this court before that an inference of agency could not be drawn from the evidence convinces me now.

To conclude: The presumption which carried the plaintiff past a nonsuit subsequently disappeared. It had been displaced by facts which the plaintiff did not dispute. No inference favorable to the plaintiff was present at any time. Accordingly, the motion for the directed verdict should have been sustained.

I concur in the result reached by the majority. The above are my reasons.