Williams v. Sinclair Refining Co. , 39 N.M. 388 ( 1935 )

I concur in the reversal of the judgment for rent, but the holding of the appellant liable for the equipment, valued at $1,304.50, seems to me not supported by substantial evidence. The learned trial judge, at the close of the case, said: "As to this equipment that was taken there, I think the only testimony that affects this is this man Tex Parks evidence what was actually in there. They had gone off and left this place. The court can find no testimony showing what was in there when they opened it up."

Where the trial court's finding of fact is based upon a presumption, I take it the correct procedure is for the appellate court to consider all the facts and circumstances surrounding the transaction, and from the record determine whether or not the inference drawn by the trial court is justified. The trial court indulged the presumption that a state of things once established will be supposed to continue until the contrary is shown. He based his finding upon the testimony of appellee that he placed the equipment in the filling station, and presumed that it remained there and was delivered to the appellant, who was placed in lawful possession of the station by appellee's cotenant. Professor Wigmore states: Wigmore on Evidence (2d Ed.) § 2494. Theory of Presumptions. "* * * Perhaps the best statement of the question is this: ``(The proposition) cannot merely be, Is there evidence? * * * The proposition seems to me to be this: Are there facts in evidence which if unanswered would justify men of ordinary reason and fairness in affirming the question which the plaintiff is bound to maintain?'"

Elliott on Evidence, vol. 1, § 81, reads as follows: "Presumptions of fact have been defined as ``inferences which from certain proved facts, are considered as prima facie established, or which, in the absence of rebutting evidence, should be or may be drawn by the court or jury, and which must yield to direct rebutting evidence.' A learned judge has said: ``Presumptions of fact are questions of fact. They are merely the major premises of those inferences which juries are at liberty to draw, in the light of their experience as men of the world, from facts directly proved.' Another judge long ago said: ``A presumption of any fact is properly an inferring of that fact from other facts that are known; it is an act of reasoning.' It is in the nature of a logical inference or argument. It is, says another writer, ``a logical argument from a fact to a fact; or, as the distinction is sometimes put, it is an argument which infers a fact otherwise doubtful from a fact which is proved.'" See, also, Hawkins v. Byrn, 150 Tenn. 1, 261 S.W. 980, 983; Doran v. United States Building Loan Ass'n, 94 Mont. 73, 20 P.2d 835, 837; 22 C.J. 79.

The undisputed facts are: That the appellee, Williams, and his cotenant, Gibson, on February 10, 1931, executed a lease to appellant of the filling station in block 42; that on April 8th, after the removal of the filling station building, in the month of February, to the new location on lots 1 and 2 in block 21 in the other Hobbs townsite, a second lease was delivered to appellant which bore the name and acknowledgment of appellee and Gibson, but which the court found was not executed by the appellee; that both leases were on the printed form used by the appellant in leasing filling stations (the only difference in the two leases being the description of the land), apparently for the purpose of compelling proprietors to sell only Sinclair gasoline; that appellee locked up this filling station, situated in a boom oil town, and left it unguarded for a considerable period of time, between his departure and the placing of appellant in possession by Gibson; that Gibson put Tex Parks in this station to sell accessories, and that Tex Parks also sold appellant's gasoline; that appellee returned to Hobbs in June, 1931, and shortly afterwards took over the filling station, and continued to buy gasoline from appellant in Tex Parks' name; that he testified the equipment involved in this case had been taken before his return; that the agents of appellant denied ever having received the equipment, and no explanation is offered as to the absence of Gibson, who could have testified as to the equipment delivered to appellant, and who at the time of the disposition of the filling station was an equal owner with appellee of the remaining equipment; that appellee's equipment was mortgaged, and during the month of March, 1931, suit was commenced against appellee which resulted in equipment being taken from the filling station on execution after appellee took possession in June; that the station was burglarized about December 24, 1930, and equipment taken. Eliminating from consideration the fact that H.L. Lyman, who operated the filling station for appellee at the old stand until about the middle of February, 1931, testified that the equipment involved in this suit was not in the filling station at the time he left, shortly before the removal of the station, I do not think that a presumption that the equipment came into the possession of the appellant and was appropriated by it is justified.

I therefore dissent.