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

Before Judson v. Bee Hive Auto Service Co., 136 Or. 1,294 P. 588, 297 P. 1050, 74 A.L.R. 944, this court, in a number of cases, had considered the effect to be given to evidence that the defendant was the owner of an automobile driven by another, whose negligent driving caused injury to the plaintiff. Uniformly, it was held that such evidence sufficed to make a prima facie case of responsibility of the owner of the vehicle for the acts of the driver. Sometimes the court arrived at this result by saying that the fact of ownership creates a presumption of law that the driver was the agent of the owner and acting within the scope of his agency at the time of the accident; sometimes, that the jury might so infer; at other times, both.

In the Judson case, which was twice argued upon elaborate briefs, the court, sitting in banc, held unanimously, and, as I think, by way of putting at rest a vexatious question, that in this state the fact of agency in such circumstances was one that the jury might reasonably deduce from the fact of ownership; and that it was not a conclusion made imperative by the law. In other words, the court decided, as definitely as anything could be decided, that it was dealing, not with a presumption of law but with an inference of fact.

Were the question still an open one, as I think it is not, the analysis in the able, specially concurring opinion of Mr. Justice ROSSMAN might be persuasive. Certainly, there is much authority for his position. But there is likewise much authority for the position of this court. To go no further, among the numerous decisions cited by Wigmore in his discussion of the subject, are decisions espousing the inference theory, including, indeed, the Judson case itself: IX Wigmore on Evidence (3d Ed.), § 2510a, Note 2, pp. 400 et seq. Again, this court held in the Judson case that in this state the only presumptions are those enumerated in the statute. This is disputed in the specially concurring opinion and Wigmore's construction of the California statute is cited as authority. But the California supreme court holds that there are no presumptions of law except those "declared by our code or statutes", and that for the court to determine otherwise would be "to usurp the legislative function". Davis v. Hearst, 160 Cal. 143, 116 P. 530. Surely, high as is the authority of Professor Wigmore, it is not to be preferred to that of the highest court of a state in construing its own statute.

As I understand the argument now advanced, it is thought that the court should abandon the rule of the Judson case because a presumption is a mere device or expedient founded in convenience or necessity, to enable the plaintiff to get past a nonsuit, and which vanishes when the facts are shown; while, an inference being a species of evidence, it is necessary, in order to reach the result here announced, to weigh the evidence on one side against that on the other, and thereby to violate the fundamental law. I have put the argument somewhat more bluntly than does Mr. Justice ROSSMAN, but, I think, with substantial accuracy.

The difficulty I find with that position is the premise, not stated though assumed, that a presumption is not evidence. Whatever may be the law in other jurisdictions, a presumption in this state is evidence, so declared by statute and in at least four decisions of this court: §§ 2-401, 2-405, 2-1001, subd. 2, O.C.L.A.; Clark v. Shea, 130 Or. 195, 205, 279 P. 539; CityM.T. Co. v. Franklin Fire Ins. Co., 116 Or. 102, 107,239 P. 812; Sather v. Giaconi, 110 Or. 433, 440, 220 P. 740; Dohertyv. Hazelwood Co., 90 Or. 475; 484, 175 P. 849, 177 P. 432. There is a dictum in Johnson v. Hoffman, 132 Or. 46, 58, 284 P. 567, which points the other way, but the court found it unnecessary to rule on the question; and, so far as I am able to ascertain, there is no decision of this court contrary to the four cited, and, in the face of the plain language of the statute, I am unable to see how there could be. Of course, there are certain so-called presumptions which must be excepted from this view. Thus, it is said that the defendant in a negligence action is presumed to have exercised due care, but that is only another way of saying that the burden of proving negligence is upon the plaintiff. If the plaintiff in such an action establishes violation of a statute by uncontradicted evidence, free from suspicion, he would be entitled to a peremptory instruction, and the so-called presumption of due care would avail the defendant nothing. But, if the defendant in this case had introduced no evidence bearing on the question of agency, then, under the presumption theory, the plaintiff would have been entitled to an instruction that the operator of the automobile was the defendant's agent, who was acting within the scope of his authority, and that the defendant must respond for his negligence.

Now, since a presumption is evidence, the fault which the specially concurring opinion finds with the opinion of the court would be present no less were we to abandon the doctrine of the Judson case. We would still be weighing evidence.

In my opinion, however, we do nothing of the sort in either case. For the inference of agency from the fact of ownership is a slender reed upon which to lean; a species of evidence so weak that in any intelligent system of law it must yield to facts established by evidence which only an arbitrary judgment would reject. Such is the character of evidence produced by the defendant in the instant case. In the face of that evidence, there is, as the opinion of the Chief Justice holds, no deduction to the contrary which "the reason of the jury" could draw.

Even where the doctrine of stare decisis is not strictly applicable, stability of judicial decision is in itself a desirable end; and something is gained by a court adhering to a rule once deliberately established, which is not manifestly unsound, not lacking in support in the authorities, and not likely to be productive of injustice.