183 S.W.2d 246 | Tex. App. | 1944
Ernest E. Martin, hereinafter referred to as Plaintiff, having brought this suit in Knox County against C. Hunter Strain, a resident of Tom Green County, hereinafter referred to as Defendant, to recover damages alleged to have resulted from the negligence of Lee Schaeffer, plaintiff filed a controverting plea tendering issues designed to sustain the venue on the ground that the suit was one based upon a trespass committed in Knox County.
Upon the hearing the Court overruled the plea of privilege, to revise which action *247 the Defendant has appealed. Defendant predicates his appeal upon only two points, namely, (1), the "failure of Appellee to prove that Schaeffer was the agent, servant or employee of Appellee, C. Hunter Strain," and (2), the "failure of Appellee to prove that Schaeffer, even if he was the agent, servant, or employee of Appellant, C. Hunter Strain, was at the time of the alleged collision acting within the scope of his authority."
By the words "failure of Appellee to prove." we understand is meant that there was no evidence to support a finding of such facts as issues of venue. The questions so presented are understood to be questions of "no evidence" in contradistinction to questions of "the sufficiency of the evidence," as the difference is explained in Hall Music Co. v. Robertson,
The briefs of the parties disclose no difference of opinion on the part of counsel that neither of the two issues of fact involved was supported by direct evidence. No witness testified either that Schaeffer was a servant of Appellant, or that if so, he was acting in the scope of his employment as such. The decision of the questions presented, therefore, involves a consideration of whether such absence of direct evidence to support such issues of fact was sufficiently supplied by legal equivalents thereof consisting of presumptions or inferences from such facts and circumstances as were shown by direct evidence.
The words presumption and inference are often used interchangeably as meaning the same thing. Perhaps all authorities agree that "A presumption of fact cannot rest upon a fact presumed, or, in other words, one presumption cannot be based upon another presumption * * *." 17 Tex.Jur. p. 247, sec. 57. Since the word inference is often used in the same sense as presumption it is in such sense likewise true, of course, as expressed in the clause following the above quotation that "an inference of a fact" cannot be based "upon other inferences." Id. But there is a distinction between the meaning of the word presumption and the word inference. The nature of the distinction is shown from the following quotation from Corpus Juris Secundum: "The fundamental characteristic of a presumption, as distinguished from an inference, is that the former affects the duty of producing further testimony, not merely the weighing of that already produced. It has also been said that a presumption is a rule which the law makes upon a given state of facts, while an inference is a conclusion which, by means of data founded upon common experience, natural reason draws from facts which are proved." 31 C.J.S., Evidence, § 115. Some characteristics of a presumption as distinct from an inference were stated by Judge Smedley in Empire Gas
Fuel Co. v. Muegge,
In Neely v. Provident Life, etc., Co.,
"With the distinction clearly in mind between presumptions andinferences, it is obvious that no presumption can be founded on apresumption; and it is equally obvious that inferences may be founded on inferences, as they are in the investigations carried on by scientific men and in the everyday affairs of life. As to the proposition that inferences cannot be based on inferences, Wigmore on Evidence (2d Ed.) vol. 1, § 41, says: `There is no such rule; nor can be. If there were, hardly a single trial could be adequately prosecuted. For example, on a charge of murder, the defendant's gun is found discharged; from this we infer that he discharged it; and from this we infer that it was his bullet which struck and killed the deceased. Or, the defendant is shown to have been sharpening a knife; from this we argue that he had a design to use it upon the deceased; and from this we argue that the fatal stab was the result of this design. In these and innumerable daily instances we build up inference upon inference, and yet no court ever thought of forbidding it. All departments of reasoning, all scientific work, every day's life and every day's trials, proceed upon such data. The judicial utterances that sanction the fallacious and impracticable limitation, originally put forward without authority, must be taken as valid only for the particular evidentiary facts therein ruled upon.' Dean William Trickett in an article published in The Forum of the Dickinson School of Law for March, 1906, vol. 10, p. 123, characterizes the postulate that, `when facts are to be inferred from other facts the latter must be established by direct evidence' as `error,' and suggests that as a doctrine occasionally recognized as a principle of proof it ought to be `extirpated.'
"Both in the activities of laymen and in the administration of justice there are many examples of the permissible drawing of more than one inference from a primary established fact. When jurors in their deliberations arrive by a process of reasoning at an acceptableinference of fact, they have a right to add such fact to any previous facts found by them and proceed by ratiocination from such fact or facts to additional inferences of fact and then proceed still further by like process until they arrive at the ultimate conclusion on the issue trying." (Italics ours.)
It remains to make application of our conclusions as expressed to the facts of *249 the instant case, and happily in so doing we at the same time are enabled to give a good example as tending to afford support of such conclusions.
There was direct evidence of facts and circumstances, which the judge as a trier of facts was warranted in believing and drawing all reasonable inferences therefrom, to these several effects: That Defendant was engaged in highway surfacing or re-surfacing on a strip of highway extending four or five miles out of Knox City; that asphalt was being used in such work; that there was an asphalt mixing (or treating plant) on the north side of the highway but a short distance east of the place of collision; that three or four large commercial trucks were used in conveying asphalt being used in such highway work; that one of such trucks was the one which collided with Plaintiff's truck. That such truck bore the same license number as a truck of like description, the registration certificate to which was a short while before issued to the Defendant; that in the truck at the time of collision were duplicate tickets showing sales of oil or gas to Defendant; that the collision occurred in midday (1 or 2 o'clock P.M.) on a week day (July 27, 1943); that the truck which collided with Plaintiff's truck was being driven on its left side of the road, indicating to the driver of Plaintiff's truck that it was preparing to turn off to the asphalt plant.
There may have been more evidence of material facts or circumstances, but it is believed the foregoing is sufficient.
In our opinion, such evidence of facts and circumstances warranted an inference that the truck was owned by the Defendant. It was further inferable that since the truck belonged to Defendant and was being used in work of the Defendant, the driver was a servant of the Defendant. Since the driver was inferentially a servant of the Defendant, that fact, together with the direct evidence that the truck was one of those being used in Defendant's work, warranted the further inference that the driver was at the time in the course of his employment. The latter inference was further strengthened by the fact that it was about the middle of a weekday when it would be more probable that a truck of the kind shown would be employed in the business of Defendant than being used on any other mission.
It is, therefore, our conclusion that Appellant's points are not supported by the record, that no error is shown, and that the judgment of the court below should be affirmed. It is accordingly so ordered.