Forbes v. Midwest Air Charter, Inc. ( 1999 )

Pfeifer, J.

The issue in this case is whether the jury was properly instructed on the issue of who was the “pilot in command.” For the reasons that follow, we conclude that the jury should not have been instructed on the rebuttable presumptions contained in R.C. 4561,23.

In Ayers v. Woodard (1957), 166 Ohio St. 138, 1 O.O.2d 377, 140 N.E.2d 401, this court stated: “A presumption is a procedural device which is resorted to only in the absence of evidence by the party in whose favor a presumption would otherwise operate; and where a litigant introduces evidence tending to prove a fact, either directly or by inference, which for procedural purposes would be presumed in the absence of such evidence, the presumption never arises and the case must be submitted to the jury without any reference to the presumption in either a special instruction or a general charge.” Id. at paragraph three of the syllabus. Appellant Forbes argues that the Ayers case stands for the proposition that presumptions, statutory or otherwise, are not provided to juries when evidence as to the subject matter of the presumption has been presented.

In State v. Myers (1971), 26 Ohio St.2d 190, 55 O.O.2d 447, 271 N.E.2d 245, this court stated: “In a trial of a person for the offense of operating a motor vehicle while under the influence of alcohol, the presumption provided by R.C. 4511.19(B) may be included in the court’s instructions to the jury and used by them in arriving at their decision, even though the prosecution introduces evidence of the defendant’s physical appearance, his walk, his manner of speaking, the smell of his breath, and opinion evidence that defendant was under the influence of alcohol.” Id. at paragraph two of the syllabus. Appellees argue that this case stands for the proposition that statutory presumptions are not subject to the rule of Ayers and, therefore, juries should be instructed as to the presumptions contained in R.C. 4561.23.

As far as we can tell, the Myers decision has never been relied upon by this or any court as to the point in contention. The Ayers decision, on the other hand, has been relied upon by this court under analogous conditions. Cotterman v. Ohio Dept. of Pub. Welfare (1986), 28 Ohio St.3d 256, 258, 28 OBR 334, 336, 503 N.E.2d 757, 759; Cincinnati Bd. of Edn. v. Hamilton Cty. Bd. of Revision (1997), 78 Ohio St.3d 325, 328, 677 N.E.2d 1197, 1200; Evid.R. 301, Staff Note.

Cotterman involved the presumption set forth in Ohio Adm.Code 5101:3-50-22(C). This court stated that the presumption “would ab initio be inapplicable” where evidence was presented to rebut the presumption. Id., 28 Ohio St.3d at 258, 28 OBR at 336, 503 N.E.2d at 759. The court’s sole authority, and without comment, was Ayers. Id.

Cincinnati Bd. of Edn. involved the common-law presumption that “the sale price reflects the true value of property.” Id., 78 Ohio St.3d at 327, 677 N.E.2d at 1199, citing Ratner v. Stark Cty. Bd. of Revision (1986), 23 Ohio St.3d 59, 61, 23 OBR 192, 193, 491 N.E.2d 680, 682; Walters v. Knox Cty. Bd. of Revision (1989), 47 Ohio St.3d 23, 24, 546 N.E.2d 932, 934. In Cincinnati Bd. of Edn., this court stated that “[i]f evidence had been introduced by the BOE [board of education], or others, which had shown that the sale was not an arm’s-length transaction, the rebuttable presumption that sale price reflects true value either would never have arisen or it would have disappeared.” Id., 78 Ohio St.3d at 328, 677 N.E.2d at 1200. The court relied solely on Ayers in support of this proposition.

Evid.R. 301 states, “In all civil actions and proceedings not otherwise provided for by statute enacted by the General Assembly or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of non-persuasion, which remains throughout the trial upon the party on whom it was originally cast.” The Staff Note specifically states that Evid.R. 301 “does not change Ohio law relative to the effect of a presumption in civil cases,” citing Ayers.

The Myers court distinguished its decision from Ayers because Ayers involved a common-law presumption, while Myers involved a statutory presumption. Myers, 26 Ohio St.2d at 200, 55 O.O.2d at 452, 271 N.E.2d at 251. Given Cotterman, which involved an Administrative Code presumption, and Evid.R. 301, which was adopted by this court long after Myers was decided, we are convinced that the more apt distinction is between a civil case, Ayers, and a criminal case, Myers. We conclude that Ayers governs the instant case and that Myers has no application.

Accordingly, we conclude that the jury in this case should not have been instructed as to the statutory presumptions set forth in R.C. 4561.23 because “evidence tending to prove a fact * * * which for procedural purposes would be presumed in the absence of such evidence,” was presented. Ayers, 166 Ohio St. 138, 1 O.O.2d 377, 140 N.E.2d 401, at paragraph three of the syllabus. The judgment of the court of appeals is reversed, and the cause is remanded to the trial court for a new trial.

Judgment reversed and cause remanded.

Douglas, Resnick and F.E. Sweeney, JJ., concur. Moyer, C.J., Cook and Lundberg Stratton, JJ., dissent.