In Re Pilcher's Estate. Von Pilcher v. Pilcher , 114 Utah 72 ( 1948 )

I concur. But I find much confusion in the decisions both of this and other courts as to the effect of a presumption. In the hope of clarifying some of these matters, I add this opinion.

The prevailing opinion recognizes that a presumption may have the effect of requiring the party, who claims the facts are contrary to such presumption, to not only produce some evidence that such is the fact, but also to persuade the trier of the facts not only by a mere preponderance of the evidence but by clear, convincing and conclusive evidence. This court has often said that a presumption only determines the burden of producing some evidence, and that when evidence is produced on the existence of a fact which would otherwise be presumed, the presumption drops out of the case and the facts must be determined from the evidence as though there were no presumption. That such is a correct statement of the law as to many presumptions there can be no doubt, but in other cases a presumption is held to go much further. In two cases we seem to have held that a presumption cannot change the burden of persuasion, under the law of this state, even under a statute which expressly so provides. Buhler v. Maddison, 109 Utah 267,176 P.2d 118, 168 A.L.R. 177; Peterson v. Sorensen,91 Utah 507, 65 P.2d 12.

Edmond M. Morgan, in an article entitled "Some Observations Concerning Presumptions," 44 Harvard Law Review 906, says:

"Out of the welter of loose language and discordant decisions concerning presumptions may be drawn two deductions which can fairly be said to be generally accepted. First, however great the disparity of judicial definition of the word, courts and text writers agree that `presumption' may properly be used to designate the assumption of the existence of one fact which the law requires the trier of the fact to make on account of the existence of another fact or group of facts standing alone. [See Thayer's Preliminary Treaties on Evidence (1898) 313-52; Bohlen, The Effect of Rebutable Presumptions of Law Upon the Burden of Proof (1920) 68 U. of Pa. L. Rev. 307; McCormick, Charges on Presumptions and Burden of Proof (1927) 5 N.C.L. Rev. 291; See also Wigmore on Evidence Sec. 2491] Second, such an assumption is thus compelled because it is believed to be justified on logical grounds by human experience or because it accomplishes a procedural convenience, or because it furthers a result deemed to be socially desirable, or because of a combination of two or more of these reasons. * * *" (Emphasis ours.) (See authorities above cited and Van Ausdall v. Van Ausdall, 1927, 48 R.I. 106, 110,135 A. 850, 852).

The above definition of a "presumption" requires the trier of the fact, in the absence of evidence or other evidence on that question, to assume the existence of an ultimate fact from the establishment of another fact or group of facts. This definition not only permits but requires the trier of the fact to make the assumption of the ultimate fact where the basic facts are established in the absence of evidence or other evidence on the existence of the ultimate fact. A rule of law which merely authorizes the trier of the fact to infer from one fact or set of facts the existence of another fact although often so called is not really a presumption. The term "in the absence of evidence or other evidence" is used because in many cases the facts on which the presumption is based have a logical tendency to prove the existence of the fact which is assumed therefrom, and are therefore evidence thereof and in such case the term "other evidence" applies. In other cases the basic facts have no such logical tendency and in such cases it requires "evidence" not "other evidence" to overcome the presumption. A true presumption is always rebuttable by sufficient evidence of the non-existence of the ultimate fact but in many cases it is said that there is an irrebuttable presumption. This means that what is said to be the basic facts are in reality the ultimate facts and they have the same effect as though what is said to be the ultimate facts did exist and that it is immaterial whether such facts actually exist or not. This is a rule of substantive law as to the effect of what is said to be the basic facts and not a presumption.

Courts have often said that upon the production of evidence on the existence of the ultimate fact the presumption disappears and has no further force or effect in the case. This is said to be true because a presumption is not evidence and cannot be weighed as such with other evidence. As will be later noted, a presumption is not evidence and cannot be weighed as such but it does not necessarily follow that it drops out of the case upon the production of some evidence as to the existence of the ultimate fact. Many presumptions do disappear upon the production of sufficient evidence from which the trier of the facts might reasonably believe that the ultimate fact which would otherwise be assumed does not exist. But other presumptions are overcome only by much stronger evidence. Some presumptions require that the trier of the facts be persuaded from the evidence that the fact which would otherwise be presumed does not exist, still others go farther and require that the presumption shall be overcome only by clear and convincing evidence and in still others the presumption is only overcome by evidence which convinces the trier of the facts beyond a reasonable doubt that the otherwise presumed fact does not exist. See "Instructing the Jury on Presumptions and Burden of Proof" by Edmond M. Morgan, 47 Harvard Law Review 59-83, where eight different effects of presumptions are said to have some judicial sanction.

Mr. Justice Ephraim Hanson, dissenting in Peterson v.Sorenson, 91 Utah 507, 531, 65 P.2d 12, 23, said:

"Presumptions of law are indulged independently and in the absence of evidence."

He was construing our Workmen's Compensation Act, which is now Section 42-1-54, U.C.A. 1943, which provides that an employer who fails to provide compensation for its employees who are accidentally injured in the course of such employment, shall be liable in a civil action for damages and that "proof of the injury shall constitute prima facie evidence of negligence on the part of the employer, and the burden shall be upon the employer to show freedom from negligence resulting in such injury." He argues that since a presumption cannot be weighed with evidence for or against the existence of the fact which would otherwise be presumed, but drops out and has no further force or effect in the case after the introduction of evidence on that question, that this statute which expressly places the burden of proving freedom from negligence upon the employer creates something more than a presumption and should not be thus limited in effect. The entire court assumed that such was the only possible effect of a presumption. To that effect Mr. Justice Hanson cited the following cases: Ryan v. Union Pac. R. Co., 46 Utah 530,151 P. 71; Clark v. Los Angeles S.L.R. Co., 73 Utah 486,275 P. 582; State v. Steadman, 70 Utah 224, 259 P. 326; State v.Green, 78 Utah 580, 6 P.2d 177; In re Newell's Estate,78 Utah 463, 5 P.2d 230.

From the foregoing Mr. Justice Hanson concludes that since this statute shifts the burden of proving negligence from the employee and places the burden of establishing freedom from negligence onto the employer, thereby providing that this statutory rule shall continue to wield an influence on the determination of the question of negligence after the introduction of evidence on that question, that the statute does not create a mere presumption but creates something more which is erroneously designated a presumption. The prevailing opinion seems to hold that this statute merely created a presumption, and since a presumption can only have effect in the absence of evidence, but cannot be weighed with evidence, that statute cannot have the effect of changing the burden of persuasion from the employee to the employer, but the presumption disappears from the case when evidence is introduced on the question of negligence.

The reasoning in both opinions in the Peterson case loses sight of the fact that not every presumption drops out and has no further effect after the introduction of evidence of the non-existence of the fact which would otherwise be presumed. The most commonly used presumption known to the law is that a person charged with a crime is presumed innocent until his guilt is established beyond a reasonable doubt. There the jury does not weigh that presumption against evidence but is nevertheless a real presumption of law. In the absence of evidence of defendant's guilt it requires an acquittal, but it does not disappear, however, upon the production of some evidence of guilt. It continues until overcome by evidence which removes from the jury's mind every reasonable doubt of guilt. This is clearly a presumption. It is a rule of law which requires the assumption of one fact (the innocence of the accused) from another fact (that the accused is a person) but this presumption does not drop out upon the production of evidence of defendant's guilt. Why should we not hold that the statute involved in the Petersoncase created a presumption which can be overcome only by evidence which convinces the trier of the facts that the preponderance of probability is that the employer is free from negligence? This seems to be what the statute requires, and is in harmony with many other cases involving a presumption.

In Buhler v. Maddison, 109 Utah 267, 167 P.2d 118, 168 A.L.R. 177, we placed that construction on a Nevada statute which is similar to ours but seem to have held that had we been construing our own statute under our laws we would have had to hold that the presumption dropped out upon the production of some evidence on the question of negligence.

This court, contrary to the Peterson case, has many times held some presumptions do not disappear from the case merely upon the production of some evidence. In some instances we have held that the presumption places the burden of persuasion on the party who claims the facts are contrary to the presumption. Thus inWalton v. Coffman, 110 Utah 1, 169 P.2d 97; Baldwin v.Nielson, 110 Utah 172, 170 P.2d 179; Bradley v. Miller,109 Utah 538, 550, 167 P.2d 978, which were child custody cases, we held that there is a presumption that it will be for the best interest of the child to be reared in the custody of its natural parents and that such presumption is not overcome until the trier of the facts is convinced by the evidence to the contrary. InState v. Steadman, supra, [70 Utah 224, 259 P. 329], which was a bastardy case, we held

"that the defendant was presumed to be innocent of having sexual intercourse with the prosecutrix until a fair preponderance or greater weight of the evidence convinced them [the jury] that he was guilty of such offense."

State v. Green was a murder case in which the defendant raised the issue of insanity. We held that there is a presumption of sanity until some evidence of insanity is introduced, whereupon the issue must be submitted to the jury with instructions that it must be determined from the evidence and not from the presumption and if the jury from the evidence has a reasonable doubt of his sanity they must acquit the accused. Here all that is required to overcome the presumption is sufficient evidence to raise a reasonable doubt of defendant's sanity. In the opinion we definitely recognized that [78 Utah 580, 6 P.2d 183]:

"Various degrees of proof are required to overthrow the various so-called disputable presumptions."

In re Newell's Estate, 78 Utah 463, 492, 5 P.2d 230, 241; was a will contest in which we held that upon it being established that the contestant was an inheritable heir who was omitted from the will and no provision made for him a presumption arose that the omission was not intentional and

"the burden of proof [persuasion] was cast on the defendants to establish the fact that the omission was intentional."

Thus one of the cases cited by Mr. Justice Ephraim Hanson recognized that various degrees of proof are required to overthrow the various presumptions. Two others held that the burden of persuading the trier of the facts is on the person who claims the fact to be contrary to the presumption. Chamberlain v. Larsen, 83 Utah 420, 29 P.2d 355, 363, involved a presumption of delivery of a deed from the fact that the deed was recorded and in possession of the grantee. Mr. Justice Ephraim Hanson writing the opinion of the court held that a presumption

"is a rule of law casting the burden of proof on him against whom the presumption operates."

He concluded that in that case it required clear and convincing evidence to justify the court to make findings contrary to the presumption. He justifies that result on the ground that the facts upon which the presumption is based are entitled to great weight and seems to assume that it necessarily follows therefrom that clear and convincing evidence is required to overthrow the presumption. However, that does not necessarily follow because the facts on which the presumption is based are in evidence and should be weighed and considered with other evidence for whatever they are worth by the trier of the facts regardless of the degree of evidence which the law requires to overcome the presumption. Presumptions often disregard entirely the inherent evidentiary value, if any, of the facts upon which they are based and exist in spite of the fact that such facts have no evidentiary value to prove the existence of the assumed fact and yet the courts require clear and convincing evidence, or place the burden of persuasion on the party who claims that the assumed fact does not exist. Thus it is the rule of law which creates the presumption which determines the degree of evidence necessary to overthrow it, and that is not necessarily determined by the weight as evidence, if any to be given the facts on which the presumption is based.

In criminal cases under statutory and common law rules it is often held that a fact or set of facts are prima facie evidence of another fact which constitutes a necessary element of defendant's guilt. This under the above definition is not a presumption because it does not require the trier of the facts to assume the ultimate fact from the existence of the basic fact, but only provides that such may be inferred. In such cases the trier of the facts merely uses the basic facts for what they are worth as evidence of the ultimate fact, but the rule of law requires that the case be submitted to the jury in the absence of conclusive evidence to the contrary. See State v. Barretta,47 Utah 479, 155 P. 343; State v. Sawyer, 54 Utah 275,182 P. 206; State v. Mellor, 73 Utah 104, 272 P. 635; State v.Donovan, 77 Utah 343, 294 P. 1108; State v. Bruno, 97 Utah 33,93 P.2d 1103; State v. Hall, 105 Utah 162, 145 P.2d 494;State v. Prettyman, 113 Utah 36, 191 P.2d 142.

Under these statutes the courts have sometimes erroneusly referred to them as presumptions. Under the above definition they are presumptions only where they require the trier of the facts to presume the existence of one fact from the existence of another fact or set of facts. Sometimes the fact or set of facts on which the assumption is based require no express proof of their existence but are assumed merely as an incidental to the main case, such as the fact that the defendant is a person, and in other cases the court may judicially know the facts on which the presumption is based. Nevertheless in all cases involving a presumption the law requires the trier of the facts to assume from one fact or set of facts the existence of another.

This court is committed to the doctrine that different presumptions are overcome by varying degrees of proof. In some cases, as soon as there is sufficient evidence on the question of the ultimate fact to justify the trier of the facts in determining the ultimate fact therefrom, the presumption disappears and has no further force or effect in the case. In other cases it has the effect of shifting the burden of persuading the trier of the fact, and in still others it requires the trier of the facts to presume the ultimate fact until clear and convincing evidence is produced to the contrary or until satisfied to the contrary beyond a reasonable doubt. But in none of these cases does the trier of the facts weigh the presumption against the direct evidence. A presumption is a rule of law which determines the effect of the evidence of one fact or set of facts in determining whether another fact exists. Such a rule of law cannot logically have any effect in persuading or convincing the mind of the trier of the facts that the facts are one way or the other but it can and does determine for the trier of the fact the degree or extent of persuasion required before such ultimate fact may be found contrary to the presumption.

A presumption is not the fact on which it is based, nor the inference to be drawn therefrom, but is the legal consequence thereof. Since it has no power of persuading or convincing the mind of the probability of the existence of a fact it cannot be weighed on the scales of justice in determining what the facts are. So when the evidence is sufficient to overcome its legal effects it drops out of the case and has no further force or effect. This is true in a criminal case where the defendant is presumed innocent until the jury is convinced of his guilt beyond a reasonable doubt as well as in the case where all that is necessary is to produce sufficient evidence from which the jury could find the ultimate fact. See Edmund M. Morgan's two articles above quoted: Wigmore on Evidence, Section 2491; State v. Green, supra; my concurring opinion in State v. Prettyman, supra. Still the fact or facts upon which the presumption is based may and usually do have some logical tendency as circumstantial evidence to prove the presumed fact. The facts on which the presumption is based must be in evidence or judicially known before the presumption can come into existence. Such facts remain in evidence after the presumption has ceased to function. And even though the presumption ceases to function as such the facts on which it is based are still in evidence before the trier of the facts and may be considered with the other evidence in determining what are the facts. SeeChamberlain v. Larsen, supra; Walton v. Coffman, supra;Baldwin v. Nielson, supra; Bradley v. Miller, supra, and authorities cited above in this paragraph.

In Edmond M. Morgan's article "Some Observations Concerning Presumptions," 44 Harvard Law Review, pages 931-32, he concludes that

"presumptions should be classified according to the reasons which justify their creation and existence,"

and that their effect in the case should be determined from those reasons. He mentions four classes of presumptions, each with a different reason for its existence. The third class he describes as

"Those [presumptions] created to further a result judicially deemed socially desirable."

Among such presumptions he lists

"the presumption of the validity of a ceremonial marriage and the presumption of the legitimacy of a child born in wedlock"

and says that they

"are demanded by the observed results of human experience and the accepted current convictions of social policy. Both usually fix the burden of persuasion, and * * * [are] required to be overcome by more than a preponderance of the evidence."

As stated in that article, the reason for the presumption in the present case is to further a result judicially deemed socially desirable. In other words, it is judicially deemed sociably desirable that where a marriage ceremony consummated by cohabitation is shown, an innocent person shall not be branded as having lived in unlawful cohabitation or innocent children be branded as illegitimate, even though if the truth were proved, such would be the case. To avoid such hardships on innocent persons the courts have erected a barrier against such results by creating a presumption in favor of a lawful marriage which presumption is not overcome by satisfying the ordinary burden of persuasion. Such a presumption persists until it is overcome by clear, convincing and conclusive evidence. See authorities quoted in the main opinion. I agree that such is the correct policy of the law.