Wyckoff v. Mutual Life Insurance

Arguеd reargued February 25, 1943; 1; October Pendleton reversed March LIFE WYCKOFF v. MUTUAL INSURANCE CO. OF NEW YORK (147 (2d) 227) P.

593- Justice, Chief Before Rossman, Belt, Bailey, Associate Justices. Kelly, Lusk, Hay, Brand (Biggs George Donart, Weiser, Idaho & Yturri, briefs), appellant. on Ontario, Wood, and Borden Robert Miller both 8. Port- (McCamant, King Wood, & of Portland, land on the respondent. brief), for

BELT, J. beneficiary brought The this action to recover under indemnity provision of a the double life insurance company, alleging policy the defendant issued “bodily injury came to his death the insured solely through violent, and external, effected accidental to-wit,.by being drowned the Snake means”, river. the in- defendant, answer,

The its admitted that in the but denied that sured was drowned Snake river alleged affirmatively accidental death was self died reason of destruction”. The “insured issue was clear cut. Was insured drowned as a result of an accident was his death suicidal? There was eye tragedy. no witness to this The case was based purely jury, by circumstantial The its evidence. found that the insured had verdict, committed suicide liability payable and hence no double under the policy. solely upon appeal based refusal of the requested give following

court to instructions: 1. legal pre-

“You are instructed that there is a sumption against body per- suicide and when the of a pointing son is found under circumstances to a sudden injury drowning, presumed death from or such death is by to have been caused accidental means rather than by person the intentional act himself.”

2. are “You instructed that in an action on an policy, by if is accident it shown the evidence that must death have been accidental or suicidal, the against presumption can suicide be overcome cir- only quality cumstantial evidence if it is of such weight negative every as to reasonable inference of by accident.” death requested presents

The first ques- instruction tion as to it was whether reversible error for the court legal tell to refuse to that there is a presump- against request pertains tion suicide. second quantum necessary of evidence to overcome a against presumption suicide.

595 against presumption of law a That there is jurisdiction and elsewhere: settled this suicide is well P. 90 Cо., 37, Or. Insurance Fink v. Prudential Royal L. R. A. Tribe, 365, 71 P.73, Or. Cox v. 762; Rep. exhaustive note Am. 752. Also see 620, 95 St. Cyc. of Insurance Law A. L. R. 185 and Couch’s 8)

(Vol. § in 29 Am. Jur. 1085: 2230. As said * * “* it is doubtful from the evidence where an or death caused accident whether presumption accident, a that arises an suicide, citing numer- death”, the cause suicide, was not support of the text. ous authorities presumption, from such common law Aside statutory disputable presumption that believed person A.) (Subd. § 2-407 L. “That is innocent O. C. wrong” comprehensive enough broad and crime or against upon presumption suicide. Based to include Supreme Court of California, an statute, identical Co., Accident Ins. Standard Cal. in Wilkinson against referring to the 180 P. suicide, said: “ necessarily logically fol- This ‘ statutory person That a

lows from ” (Code wrong.’ Civ. of crime Proc. is innocent 1.) § subd. knowledge persons common sane

It is do experience ordinarily ldll themselves. Human strong love life and fear there is teaches experienced in manldnd. It is this inherent death legal presumption that the conduct human course early common law, is based. Under suicide felony. punished a Blackstone as describes was suicide ignominious along given an burial the suicide how through body. highway his driven with a stake We regard severity do not now suicide such with never- but, ordinarily self destruction theless, involves moral turpitude regarded undoubtedly being wrong. and is presumption specifically True, such is not enumerated disputable presumption. in the statute as a Neither is presump- fraud but will it be contended there no tion of disputable statutory law it? The various stronger of which are much than —some experience others —are based human and have, by legislative crystallized enactment, into rules law. presumption evidentiary

Whether a of law has value question upon legal ais which text writers, commenta- professors say nothing tors, and of the law—to about judges learning evinced much and erudition. —have Presumptions” The “Battle of commenced when that legal Thayer, eminent scholar, Professor of Yale Uni- versity, “Preliminary in his on Treatise the Law of strongly Evidence” criticized the United States Su- preme States, Court United 156 U. S. 432, Coffin reversing judgment L. Ed. 15 S. Ct. because the court of conviction trial refused to instruct that a of innocence exists as evi- person dence in favor accused of crime. The court quoted § on from G-reenleaf Evidence, 34, that, “This legal regarded by of innocence is to be jury, every as a matter of case, evidence to the party of which the is entitled.” benefit Then came — Wigmore, scholar, Professor another eminent been the torch had thrown —and he whom became the theory leading exponent evidentiary that, value and

law has no after it has jury, past the presump- case court carried the disappears weighed the case can not tion According the evidence. scales with to this only procedural theory, presumption, con- law has a operated it is as such sequences and it has when words, In when evidence other functus officio. introduced presumption weak to rehut the —however may presumption is overcome he—the the evidence professors, destroyed. law writers, Some text Wigmore espoused have judges doctrine who have flimsy how one another in an effort to show vied with really presumption is. This a of law and unsubstantial flitting “phantom law” has been likened “bats twilight disappearing in sun- in and then about a house of that facts,” shine of actual and to cards topples It remained over when rebutted evidence. the class when he said Professor Bohlen to head presumption a male was like Maeterlinck’s law functioning, disappeared. after which, bee ( plain § A.) L. However, the statute 2-401 C. in O. explicit language presumption a declares that § 2-403 L. A. under C. defines and, indirect evidence O. expressly it directs to be as a law deduction particular L. A. facts. Section 2-405 C. made from O. provides presumption that a be “overcome” provides § L. A. evidence, and 2-1001 O. C. other judges “are the effect or value of * * *” they not bound find but “that are any conformity the declarations number with produce do their tohieh not conviction witnesses against presumption a or number, a less minds, (Italics satisfying their minds.” or other evidence ours.) how a difficult to understand could It is presumption has bеen overcome determine whether if evidence, not instructed as other presumption. Obviously, Wig- existence of reconciled with the statute. can more doctrine aWhile in the strict sense of statutory evidence, word is not it is clear from these provisions, entirety, when considered in their probative evidentiary has value. Under our statute, stands in lieu of evidence necessarily “disappear” Wig- and does not when, as says, opposition more evidence is offered thereto. “disappears” only It when the facts which it by is based have been “overcome” evidence to the contrary. by As said Mr. Justice Fields in Lincoln 26 L. Ed. French, 105 U. S. 1189: “Presumptions indulged supply place are the they of and established are never facts; allowed ascertained

facts.” It is conceded that evidence be of such conclusive only character that one reasonable deduction can be in which therefrom, drawn event disappear would and verdict be directed, but that City quille, is this Kernin v. case: Co 143 Or. Company 21 P. 1078; Hancock Land v. Port P. P. 250. land, 85, 159 969, 161 82 Or. question here, as involves case,

When of fact, say judge presump- who to is or the —the —that tion has been overcome? Assume the evidence highly improbable offered rebut the unworthy and that thinks witness is destroyed? belief. Is the thus of law produces Has been “overcome” it which jury? in the conviction minds of the legislature (§ A.) in When the 1862 2-4010. L.C. de- clared that indirect evidence is two kinds: “Infer- Presumption”, (2) merely express- and ences; it was ing opinion universally prevailed among laAvyers judges at that time. no Indeed, as- one thirty years contrary than until more serted to promulgate Thayer his commenced to Professor later significant interesting rather doctrine. It is background P. that Mathew of the statute a historical Deady, compiled the General Laws and annotated who Oregon “The in code that noted such 1845-1864, principles as em- of evidence of the law rules and following two and the and codified this bodied mainly chapters and extracted are condensed * * *” of Evidence on the Law Greenleaf’s Treatise graced T. who once Honorable Harris, Lawrence says “History entitled, his article bench, this Oregon Oregon that “It Law Review Code”, say portion that all that therefore accurate to except amend- minor code which was enacted Deady; prepared P. Mathew ments, was already say, on the evidence men- is also áccurate to preparing legisla- work of tioned, that most Deady.” performed by P. tion of Mathew 1862 was Deady this state That services rendered to were satisfactory although that, is evidenced the fact years elapsed, no amendments his code have legal pertaining presumptions effect of ever been made. have adopted main, in the have, most courts

True, Thayer-Wigmore that a of law doctrine evidentiary probative value. There how is, no has authority refusing very respectable to follow the ever, majority in no relevant statute is even when rule, Accident Insurance v. Providence Co. volved: Life (2d) 124, 215; Tenn. 88 W. Mutual Prieto, 169 S. Life Maddox, 221Ala. So. New York 292, 128 383; v. Ins. Co. Beason, 229 Ala. So. 140, 530; v. 155 Ins. Co. Life Ohio, Commission 135 Ohio St. v. Industrial Mitchell 600 (2d) Metropolitan E. v.

110, 19N. Brown Ins. 769; Life (2d) (Iowa), England Co. 7 W. O’Brien v. 21; N. New Kan. Co., 109 P. 138, 197 1100; Mutual Ins. Aetna Life Taylor, Ins. v. 128 Ark. 193 155, 540, Co. S. W. Life v. Ann. Cas. 1918B 1122; Mutual Ins. Eckendorff Life La. Co., 183, 394; 154 97 v. So. Arkimo Co. Lumber (2d) Luckett, Ark. 143 v. 189, 1102; 201 S. W. Worth Wyo. P. Worth, 441, 649, 49 A. L. R. 48 103 107. (decided 1942), In the Iowa case above cited court said:

“Appellant presumption against contends the does not suicide have the effect of evidence and asks long that we over-rule our line decisions to the contrary. In Reddick v. Grand Union Tea Co., 230 recently Iowa 296 N. 108, 119, 805,W. we considered previous holdings our and declined to overrule them. 999, In Allison v. Bankers Life Co., 230 Iowa 995, again passed upon proposition 299N. we 891,W. again presumption against held the suicide has holdings the effect of evidence. These reaffirm a rule which has been followed more than half century. prepared We are not to recede from it.” Regardless of the conflict of authorities in other jurisdictions, consistently it has been held this court extending period fifty years decisions over that, statute, under our of law had eviden Peabody tiary R. Co., value: v. O. & N. 21 Or. 121, 26 P. 823, A. L. R. 1053, 12 1891; decided National Bank v. Royal Co., 43, 33 52 P. Assurance Or. 1050; Cox v. 42 71 L. Tribe, Or. P. 60 R. A. 365, 73, 620, 95 Am. St. Rep. 752; Schanen-Blair, Caraduc v. 66 Or. P. 310, 133 City Queen v. 636; Co., Firе Ins. Ward Or. Doherty

P. v. 1067; Co., Hazelwood Or. 175 P. Co., P. v. R. N. 849, 177 432; Hansen O. W. & Or. 190, 655; 191 P. Giaconi, 188 P. Sather Or. Trucking Fire City v. Franklin Co. Motor 740;

220 P. Shea, v. 812; P. Clark 102, 239 Co., 116 Or. Insurance 166 Or. Parelius, v. 539; P. Bunnell 195, 130 Or. (2d) 88. 111 P. this has been court first time is This Wigmore adopt In v. urged doctrine. Ward thirty years supra, City Co., decided Fire Ins. Queen saying: ago, do so, refused to court this * “ * * or our states, be the rule some whatever principle text-writers, sanctioned species regards a as a code by placing presumptions in the indirect class of L. reason 93 O. L. No sufficient evidence: Section overruling presented its this court to warrant subject pronouncement con on the under former given sideration, and for that reason adherence is embodying rule instructions of the lower to the (Italics ours.) court.” supra, Co., R. & N. decided In v. O. W. Hansen rejected speak again the doctrine and, court 1920,this through ing Justice said: Harris, fal- take the view that “Some text-writers any disputable

lacious to attribute probative opponent force after the comes artificial pre- to contradict the with some evidence forward opposite sumption, when the therefore, and that party with some evi- contradicts immediately disappears dence, the goes case free from law, a rule of and the Wig. any § on 2491; of law: 4 Ev. artificial rule 894. Other text-writers and courts Review, Am. Law legal presumption disputable is in maintain that weighed is to be as such: the nature of evidence and (132 Kelly, 22 N. D. N. W. Ann. Cas. State 974); 896; L. J. 82. 10 R. C. C. 1913E, presump- jurisdiction “In this the Code makes species L. evidence; L., for Section O. tions 602 that declares indirect evidence two kinds: presumptions. presumption, Inferences and A ac cording L. to Section 995, L.,O. is a deduction which expressly particular the law to be directs made Doherty

facts; v. Hazelwood 90 Co., 475, Or. 481 (175 432). Pac. 849, 177 868, Pac. Section See, also, laying pre subd. L.2, Instead, O. L. the then, sumption out of the the case moment evidence con tradicting presump the received, the tion remains to be ease considered already pointed as evidence. As out, Section 797 meaning does not define the term ‘overcome’; provisions meaning but other plain.” Code make the (Italics ours.) legal But the ivas not conflict ended. The doctrine Wigmore agаin espoused specially able, in an concurring opinion by Justice Rossman v. Bunnell supra. Paralius, court, however, refused to de part long holding pre from its line of decisions sumptions, by evidentiary virtue of the have statute, value. statutory

In California and Montana have which provisions presumptions relative to identical with consistently those of state, this the courts have held evidentiary of law have value: Mont. 292 Co., 132, Nichols v. New York Ins. 88 Life P. 90 Mont. Bank, 424, Renland v. National 253; First Cooney, (2d) 4 P. Mont. P. 488; McMahon v. 95 25 138, (2d) Gagnon (2d) Jones, Mont. 62 P. 365, v. 103 131; v. New 683; Co., Lewis York Ins. 113 Mont. Life. (2d)

124 P. v. 579; Standard Accident Ins. Wilkinson supra; (Cal.), People 122 Co., Milner, v. Cal. 171, 212 Co., ; v. P. 299 P. P. S. Cal. 833; Smellie (2d) (2d) 730, 59 P. Estate, 90; In re Pitcairn’s 6 Cal. (2d) Speck P. Sarver, Cal. 16. In clearly the rule stated thus court ease, the Milner long prevailed state: in this has proved “Against admitted, a fact fact, or weight; where disputable but, has no against pre- prove fact it is undertaken say sumption, remains with it still they proven, if and, has been not the fact whether or sup- proof offered its with the are not satisfied liberty accept they port, the evidence of are at ’’ presumption. legal presumption there is

If it be assumed that probative value, it has suicide and that logical inquiry tell the shall the court next is: What rights party jury it Have the substantive about % upon presumption violated been relies such who jury ? existence inform the its refusal of the court to probative presumption if a of law has no course, Of arriving jury in at ver not aid the value and would evidence, the law and the there in with dict accordance telling jury it. If, about how no sense in would be presumption our statute, under have does, such ever, jury evidentiary instruct the failure to value, clearly be reversible error. would existence to its jury question not ask that the be does in instruction merely presumption evidence. It of law is told that a legal jury requests that there is be advised that the against that the same presumption order suicide, arriving at a ver may consideration taken into dict. among opinion diversity great courts

There is purport of form and jurisdictions as to in other concerning presumptions. There is the instructions “presumption” should word, that view the extreme courts takе Other instructions. mentioned never be the more improper conservative view that it is to tell jury there is a suicide but trial court should direct the attention jury upon to the facts which such is based. approach impracticable This method of in state permitted courts which are not to comment weight of point particular evidence nor to out may evidence from which inferences not be drawn. It is conceded practice under that, the federal might it be more feasible. phase

Relative to this of the case, see the article Judge Jury “What Shall The Trial Tell The About Presumptions?”, 13 Wash. L. Rev. 185, Professor Charles T. McCormick, Professor of Law at Northwest University ern School of Law. It reflects common understanding sense and shows a clear of the instruc problem. says, practice tion keeping He “the silent about the relevant in a case where the disputed issues are and must be submitted to the runs counter to the traditions of the trial courts in purport most states.” As to the form and of the in presumptions, structions on he concludes-that “an in struction that the stands until the persuaded contrary, advantage are has the may judge sense, seems to make far so as we by the other forms thus far invented of instructions on presumptions say I that think can name, we it that only is almost the one that does.” As to the federal practice, referring particularly leading case Clemmer, Standard Ins. Co. v. F. Jefferson Life A. L. R. 724, 171, Professor McCormick calls that, attention to the fact in the federal court, the judge is free to follow the common law tradition of explaining particular the allowable inferences from the circumstantial evidence. promissory of B note A

Assume that dies with brings possession. of A’s estate in The executor his in admitted evidence. an action on the The note is note. presumed for a considera- to have executed It been A.). prima § (Subd. A L. 2-407 C. tion O. facie note B testified case has thus been but made, lips given are sealed A’s consideration. was without happen plaintiff’s what would to death. It is clear jury as to to instruct case if the court refused disputable statutory presumption mentiоned. above prevent a where, are numerous other eases There miscarriage justice, absolutely necessary for it is legal apprised the existence of be presumption. Gamer, Ins.

New York Co. 303 U. S. Life L. Ed. A. L. R. involved 726, 114 58 S. Ct. providing indemnity policy an insurance for double death other than self effected destruction, case of solely through external, violent, accidental means. state court of commenced Montana

Action was diversity citizenship, removed account of but, on of Montana. court the district "When to the federal Supreme it the cause reached the United States Court to instruct the there error was held reversible voluntary law that death was not was a must overcome such and that defendant by preponderance of evidence. The decision of adopting Supreme Wig- Court States the United persuasive certainly theory it is but more Supreme controlling. Montana Court in Lewis v. supra, decided in Co., defi Ins. York New Life announced in the nitely rule follow the Gamer refused statutory, pro- incompatible with as was case, legal of that state the visions relative to effect of dis- putable presumptions. The court said: urges adopt to

“Defendant us view an- the pre- in to nounced the Gamer case the ‘The effect sumption may given is not evidence and be not ’ weight repeatedly as evidence. This court has exception held without otherwise under sections perhaps Codes. 10600 and Revised It is speak presumption correct of a not m as evidence provisions spite of section 10600 which class section as indirect in view of evidence, directly presumption defines a expressly aas deduction which the law directs to particular made from be facts. Yet that does not require any change long in rule the adhered to presumption this court that stands in the face contrary positive except evidence to in cer- Wray’s circumstances such tain as are found in Re supra, and v. New York Estate, Co., Nichols Life Ins. given weight supra, determining be must question. provides fact Section 10604 that the presumption If the be controvеrted other evidence. presumption disappeared once evidence to contrary appeared, nothing there would be clearly that evidence controvert. Section 10604 positive appears that means when it stands presumption on one side and the on the other, weigh trier of fact must them both in determin- ing view question. This court has adhered to this throughout history. its rule though even stands controverted theory necessarily on a not based that it is evidence legislature may itself, but statutes. The define the effect as it has and though, strictly speaking, even is not itself evi- why legislature dence, there is no reason can- require proven fact out of which the given probative arises certain value * * citing which has the effect evidence. nu- support merous thereof. authorities squarely point. supra, Royal Tribe, Cox given Referring relative the instructions against presumption the court said: suicide, objection to be seems serious “But the more at all not have instructed the court should the presumption causes, from natural as affirming of death to testimony other- that there was sufficient jury bearing the on the from which issue wise citing up verdict; their should have made Lodge, App. Sackberger 73 Mo. v. National Grand In evidence is such as 38. to the case bar the probability explain to with such how or indicate body in water the came to be the the as found as deceased presumption unavailable to render determining in found the cause of death. She was go in, her in but no saw how water, one her own accord she came to there —whether say positively can another cause—no one testimony; becomes a hence the pertinent determining cause, we and, in factor jury property in aid think, was submitted (Italics ours.) deliberations.” their ordinary an life The above case involved insurance policy proof reason was, thereof, and the burden of company In on to suicide. the defendant establish being to recover however—the action case, instant policy upon indemnity a double clause —the beneficiary proof plaintiff was on the burden in the the trial so The difference court instructed. proof, however, two burden cases relative a,s authority an on the case does not affect the Cox question under consideration. requested that a was instruction

No plaintiff, however, suicide was evidence. right have of substantive as matter was entitled of such to the existence the court instruct presumption. request The refusal of this re- supra, versible error. See v. Worth, Worth and eases cited therein. refusing give

No error was committed in requested quan the second instruction relative to the necessary tum of evidence to overcome the might question, as such tend towards confusion in proof cases like this where the burden of rests plaintiff beneficiary. my opinion, In it would be proper plain, the court to instruct language, simple keeping with the statute, that this disputable presumption could be overcome satisfying contrary; their minds to the if that, disputable presumption was not thus overcome, the jury should find in accordance viz., that therewith, the insured drowned as the result anof accident. ‍‌‌​‌​‌‌‌‌‌​​‌‌​​‌‌​​‌​‌‌​‌​‌​‌​​‌​​‌‌​‌‌‌‌​​​​‌‌‍constitutionality statutory provisions

The disputable presumptions having relative the effect settled. In 20 of evidence is well Am. Jur. 40, Evidence § it is said declaring prima certain

“Statutes or facts to be facie presumptive evidence of other facts do not, there is where some rational connection between proved presumed, and the ultimate facts facts deny equal protection of the laws or violate con- guaranties process stitutional of due of law”, cit- ing support numerous authorities of the text. (Italics ours.) In 12 § Am. Jur. 316, Constitutional Law, 624, it is stated: prima

“A certain fact or facts be made facie of other if facts there is a rational proof connection between what is and what is to be ’’ arbitrary. if inferred and the rule is not

C09 (Cal.) sustaining supra, P. See v. Co. Smellie S. constitutionality statute that state —the legal pre same as ours—relative to the effect of sumptions. The case of Western & Atlantic Railroad v. Henderson, 279 S. L. Ed. 639,73 884, 49 U. S. Ct. distinguished. is considered and Also Lewis New (Mont.), supra. York Ins. Co. Life judgment

The is reversed and the cause remanded for a new trial. Kelly

Bailey, Chief Justice, and Lusk, Jus- tices, concur. (Dissenting).

BRAND, J. plaintiff beneficiary policy as named in a brings of life insurance this action the de- company indemnity fendant to recover under a double provision alleged for the accidental death of the in- judgment sured. There awas verdict and for the de- company, plaintiff appeals. fendant and the By policy company the terms of the the defendant agreed the event the death of the insured pay plaintiff from natural causes it would beneficiary agreed the sum of It further $5000. indemnity, pay- that double to-wit, $10,000, would be able *“ * * upon receipt proof of due that the in- bodily injury

sured died as direct result of effected solely through external, violent, and accidental independently exclusively means, and of all other * * causes Upon upon proofs the death of the and insured being plaintiff paid the defendant the the made, sum of with certain interest additional benefits, $5000 pa,y indemnity it refused to

but under double policy. policy of In clause her action on the alleged plaintiff her husband, insured, that came solely bodily injury through to his death from effected expressly and accidental external, violent means. She all of her claim in excess of and seeks remitted $3000 indemnity judgment provision under double amount. that company alleged

By the defendant answer, its so suicide, the insured committed assignments only which are error found. appeal presented relate to the refusal on this requested by give certain iiistructions court to requests plaintiff. Those were follows: legal pre- instructed that there is “You are body against sumption and when the suicide pointing person found under circumstances is injury drowning, or such death sudden death by presumed have been caused accidental means is person by act the intentional rather than ’’ himself. an on an action “You are instructed policy, the evidence that if it is shown accident suicidal, have accidental death must been can be overcome suicide only if it such circumstantial every negative weight quality reasonable as to accident.” inference death unnecessary circumstances these Under сoncerning any of the evidence review make detailed surrounding insured. the death of the the circumstances January evening disappeared 2nd, .1941, on the He floating- body 28th, March found on and his County, Copperfield in Baker River, near the Snake on seventy evidence con- Oregon, distant. The miles some

611 cerning the cause of death, his whether accident byor suicide was all and from it circumstantial, infer- might ences be drawn in favor of either plaintiff accidental or suicidal death. The makes no claim that she entitled to directed verdict, and only questions appeal submitted to us on this are prejudicial whether or not the court committed error refusing give requested in instructions set forth above. testimony

In view of the nature of the it was proper jury regardless to submit case to the of alleged presump our conclusion of the effect proof plaintiff tion. The burden was on the h establish deat the insured was caused through external, violent and accidental means. Wat Company, v. kins Prudential Insurance 315 Pa. 497, (1934), Metropolitan A. 173 644 95 A. L. R. 869; Life (2d) v. Rosier, Insurance Co. 189 448, Okl. P. 117 793 (1941); Laventhal v. New York Insurance Co. Life Supp. (1941); Metropolitan 40 F. 157 Lambert v. Life (2d) 123 (1941); Co., Insurance W. Va. E. 547, 17 S. 628 v. Brunswick Standard Accident Co., Insurance 278 (1919); Mo. 213 A. R. 154, 45, S. W. 7 L. 1213 New Company (2d) York Insurance v. F. Ross, 30 Life (1928); Wojcik Metropolitan 80 v. Co., Insurance Life (2d) (1938); 1 124 Conn. A. 131 532, Postler v. Trav (1916); Co., eler’s 1, Insurance 173 Cal. 158 P. 1022 Landau v. Mutual Co., Insurance 305 Mo. Pacific Life (1924); 267 W. 370 542, S. Warbende v. Prudential F. Co. 97 America, Insurance 117 A. L. 749, R. (1938). 760 imposing upon plaintiff The rule the burden proof policies containing on actions accident provisions such as those found case bar must

613 imposing with the rule the burden be confused brought proof actions on the insurer in on suicide

ordinary policies, v. Arti life as Hildebrand United Royal (1907) P. and Cox sans, 50 Or. L. R. Am. 71 P. A. St. Tribe, Or. pre Rep. (1903). The of an inference or effect 752 having coming sumption aid of one burden may require opponent go proof that the forward of or risk or suffer defeat, the evidence but with non-persuasion, proof, general of the risk of burden unchanged. Judson v. Bee Hive Auto Service remains P. A. L. R. 588, P. 297 74 944 Co., 1050, 294 Or. Oregon-Washington (1931); v. Railroad & Hansen P. Navigation 191 P. Co., 97 Or. (3d Wigmore Ed.) p. § (1920); Evidence on 285. by allegations not affеcted of Therefore, in form, contained the answer. affirmative suicide, proof of be found of the burden will to have The situs bearing upon important our consideration of the an presumptions. of effect party having follows, which

In discussion upon proof an issue will be referred to burden plaintiff proponent, he be defendant, whether as the (the proof having party the burden not and the opponent. non-persuasion) called the will be risk of hereafter hold cited, authorities we In accord wdth presumption of law suicide is a there upon proof mere death violent and which arises to determine whether the means, but order external refusing presump- to instruct court erred necessary nature and function to consider the tion it presumptions in view of com- and inferences Oregon provisions of the statutes. law and the mon we echo what has been problem, In approaching courts. said other repeatedly many

“An examination of cases concerning pre against sui sumptions, particularly cide,’ ‘presumptions what has been characterized aptly reveals as ‘a of loose discordant de language welter ” Watkins cisions concerning presumptions.’ Co., Prudential Insurance 173 A. at 649. (supra) p.

At the we are confronted outset, preponder- reason and outside of ant weight authority Oregon shall call the what we doc- supports “majority trine” the nature of of law concerning presumptions as of fact distinguished presumptions (infer- The doctrine is stated as f ollows: ences). by Wigmore distinction ‘of “The between law’ presumptions ‘of fact’ inis truth the difference presumptions that are in things between reality presumptions (in the sense that are explained above) things at all. A presumption, already in its noticed, is characteristic feature a rule law laid down the and by judge, to one evi- attaching dentiary fact certain consequences duty as of production of other evidence the It opponent. in based,

is as policy, upon probative strength, a matter of and reasoning inference, of the evi- dentiary fact; but the is not the fact nor the inference itself, itself, but con- legal But, legal sequence attached to it. consequence removed, the being inference, as matter reason- of remain; still ing, may fact,’ of ‘presumption sense, in the usual is an term for merely improper value, the rational or probative potency, fact, evidentiary as not this neces- regarded having sary consequence. ‘They are, truth, but legal mere their own arguments,’ ‘depend efficacy natural force and belief or generating ’ have no They significance in the mind. conviction so as one or the other duty party far affects filé produce evidence, because there is no rule lawof jury may give them, and the to them attached to just weight it best, whatever thinks as force — * * *

may to evidence.” other kept it must he in mind “Nevertheless, that the (that peculiar aof ‘of is, effect law’ merely presumption) the real to invoke rule of conclusion compelling the to reach the law contrary in the absence from opponent. opponent If the does offer evidence to contrary (sufficient satisfy judge’s re- evidence), quirement appears some dis- jury’s a rule of and the case is in the law, ’’ any (Italics ours.) Wig- hands rule. 9 free (3d Ed.) § pp. 2491, 288, more on Evidence 289. of law as such The doctrine are given probative forces as evidence is not to described p. R. in 95 A. L. as “the 880, the annotator rule approved major text writers and the most subject.” ity Sup of courts which have discussed the great porting number are cite dfrom decisions Arkansas, Connecticut, Ill States, Alabama, United Hamp New Indiana, Iowa, Missouri, Nebraska, inois, Jersey, Pennsylvania, Rhode Oklahoma, New shire, Washington, Dakota, Texas, Utah, South Ver Island, supporting see recent cases mont For Wisconsin. (1938); Whiting, (2d) P. 452 v. 52 Ariz. 84 Seiler Mangum, Ry. 199 Ark. v.Co. St. Louis-San Francisco (2d) (1940); Hobert-Farrell Plumb S. 158 767, 136 W. Klayman, ing Heating 19 N. E. 302 Mass. v. & Co. receipt (1939) (involving presumption (2d) Reynolds, mailed); properly 123W. v. Va. Hollen letter Kayne, (1941); (2d) People E. v. 15 S. (1938): Quick State, v. N. W. 248 Mich. Lindley, (1941); Clary 2 812 30 179, Miss. So. (but (2d) (1939) App. (2d) later 920 see 86 P. Cal.

615 rule); Langlitz reference to the California v. American (Tex.) (2d) (1940). Nat. Insurance S. W. Co. 146 484 Supreme recently The Court of Vermont ex- question, long amined the entire overruled line of decisions which had held that as such adopted majority constitute evidence and the rule. quote:

We

“Upon a careful consideration of the whole subject, spread appreciation and with a keen of the wide- jurisprudence, it will effect have our but with a firm conviction that a false doctrine has subject persisted dominated the too in our law long already, we have now reached the follow- ing conclusion: disputable presumption “A is a rule of law

to be laid down party against court, shifts operates whom it the burden of merely. points party It evidence, out on duty going whom with lies forward evi presumed. party on fact dence And when fairly reasonably produced has evidence tend ing presumed, that the real fact is not show performed, the office of question the fact in to be established questions fact, aid as are other without presumption, which has become functus of Tyrrell v. Prudential Insurance ficio.” Co. Vt. 192 A. 115 A. L. R.

America, (1937). p. majority applied has been with doctrine involving pre especial in cases asserted force especially sumption cases which suicide, party having was invoked proving death. accidental Com Jahn burden Mutual Accident Association Travelers mercial (1939) App. Y. Div. N. S. 835, 9 America, ; D. Co., York Insurance 65 S. v. New Honrath Life 616 (1937); 112 A. L. 1272 258, 275 N. W. R. Jefferson (2d) F. Clemmer, Insurance Co. v. 79

Standard Life (1935); Bowers, R. A. L. 171 Del v. 724, 103 Vecchio L. Ed. 280, 190, U. 56 S. C. 80 Watkins v. 229; 296 S. Metropolitan (supra); Insurance Co. v. Prudential Lambert (supra); Reliance Insurance urance Co. Life Ins (citing many Burgess, (2d) (1940) 112 F. v. 234 Co. cases); (supra); York v. New Insurance Co. Ross Life Craiger, Ind. 30, Modern America v. 175 Woodmen of (1910); L. R. N. E. 113 103 A. 185, annotation; 92 Co., 705, Pilot Insurance N. 9 v. C. Warren Life (1940); E. New S. York Insurance Co. v. Life S. 58 S. 82 L. Gamer, 726, 303 U. C. Ed. (1938). Commenting upon A. L. R. 1218 this case said: York L. “The effect of the decision New Ins. (U. S.) (reported herewith) ante, v.

Co. Gamer place is to this court accord with what is now the view, conventional dence and that a is not evi may given weight although not be as such may, jury giving any them artificial without weight presumption,, natural as draw the and logical which are the from the facts basis inferences presumption.” annotator in 114 Note оf of the 1226. A. L. R. “majority doctrine” it would be unneces-

Under the concerning sary instruct to procedural rule of The force of suicide. gone having spent ease has itself when law reasoning may jury, still as matter “the inference jury may give “the as such remain,” but inferences just weight proper it thinks force to them whatever Wigmore on Evidence to other evidence.” as it ” (supra). majority minority opposed doctrine, As presumption of is evidence, that a law rule asserts form in its extreme it holds that a given independent probative of law, law, must be evidentiary of an nature and as a make force treated testimony weight independent in addition of the inferences fact to be therefrom. drawn given evidentiary weight, If a rule of law as is to such suppose minority we should be so advised. support Illinois,

view finds cases Massachu perhaps Montana, and Iowa and Indiana. setts, John (1900) Johnson, son Ill. N. 58 E. 237 ; Graves (1878); Taylor, v. Colwell, 90 Ill. 612 204 Clifford (1910); N. E. Mass. 90 862 but see 358, Hobart-Farrell Plumbing Klayman, Heating Company v. & 302 Mass. (1939); (2d) Cowdry’s N. E. In

508, 19 Will, 805 re 77 (1904); Vt. Ann. 359,60A. 3 Cas. 70 Hochstedler v.

Dubuque City Railway Co., and Sioux 88 Iowa 236, 55 (1893); Chicago Cleveland, N. Cincinnati, W. 74 & St. Railway Hadley, v.Co. 170 Ind. 204,

Louis 82 N. E. (N. S.) 84 N. E. L. R. 13, 16 527, 16 A. Ann. 1Cas.

(1907). Kilgore But see contra: v. Gannon, 185 Ind. (1916). L. A. 1917E, 114 N. E. 446 R. The presumptions in California to the decisions effect that are evidence rest law statutes identical to ours which will be later considered. majority powerful

The doctrine has exerted a in fluence on this court which has on more than occa one paid apparent sion to its tribute soundness, while ex opinion pressing arewe committed to the con trary by statute and view stare decisis. Ward v. Queen p. City Co., Insurance Or. at 355, 138 P. 1067 concurring opinion (1914), and see the of Mr. Justice p. Parelius, Bunnell v. Or. 183, 184, Lusk (1941). provisions The 111 P. of our statute thought to an constitute ultimate have been bar to the GIS

adoption majority course, and it view, is, clear legislative given mandate must be effect that the may be that effect remains our this court. What determination. concerning Oregon

The statutes were Wigmore doctrine had enacted in 1862 been before They adopted verbatim formulated. were California in 1895. attention 1872 and Montana Our has any provisions in other not been called similar state. provide Oregon statutes that: “Indirect evidence of two kinds: “ (1) Inferences; “(2) Presumption.” L. A. 2-401. O. C. “An is a deduction whiсh the inference reason proved, from facts makes without express to that direction of law O. an effect.” C. 2-402. L. A. ais deduction “A law particular

expressly to be made facts.” directs L. A. 2-408. O. C. must be founded:

“An inference “ legally proved; (1) and, a fact On “(2) from that fact such a deduction as is On by propen- the of usual a consideration warranted particular propensities passions men, the or sities question, person whose act in passions of the or or the course of of ‍‌‌​‌​‌‌‌‌‌​​‌‌​​‌‌​​‌​‌‌​‌​‌​‌​​‌​​‌‌​‌‌‌‌​​​​‌‌‍business nature.” the course A. 2-404. L. O. C. presumption, law to unless declared be “A may evidence, overcome other be conclusive, overcome, so indirect; but unless or

direct according presumption.” to find are bound L. A. 2-405. O. C. satisfactory, presumptions are unless “All other disputable They pre- denominated are overcome. by other be controverted evi-

sumptions, and

619 * * following The are of kind: V’ dence. O. L. A.

C. 2-407. conflicting majority The influence of the rule on the Oregon hand, one and of the on statutes the other, devastating appear has in a resulted as will confusion, following present concretely from the citations, difficulty problem nature of the which now confronts us. following strongly

The cases reflect influence “majority rule” at least to the extent that a given law, such, should not evi- dentiary weight by the trier of fact when sub- presented supporting stantial evidence been has parties. Speaking contentions of both of the inference agency proof ownership by negligently the defendant of a car driven another, the court said: employment recognized presumption of “The in Doherty (175 v. Co., 90 Hazelwood Or. 482 Pac. 432), proper place Pac. no 177 has this case;

presumption ‘may be looked on as the bats of flitting twilight disappearing law, but ” facts.’ Baun, actual Nash v. sunshine of Or. (1928). p. 264 P. 846 City Coquille, Kernin To the same effect see p. (1933). 127 at P. In Or. Han City Portland, 85, 159 Land Co. v. 82 Or. P. cock required (1916), the issue was whether certain notices posted. city The defendant contended that had been statutory rely was entitled performed. duty had been court that official said: Presumptive “Rule 119 of Lawson’s Law of is as follows: Evidence

“ A cannot contradict facts or proved.’ facts overcome subject discussing “A in ob- text-writer this : serves ‘‘ ‘ upon is some confusion cases There question probative logically has evidence and is whether force. function of a Since the merely impose to considered is forward with the evidence the burden upon party going contrary operates, is when evidence whom although presumption disappears, adduced upon as facts which it rested still remain evidence Ency. Ev. in the 885. case’: presump- any proof, a “In other the absence usually indulged as substantive evidence tion or refute material fact.” substantiate upon presumption can ‘until the be relied “The City contrary The Charter. Section shown’: having contrary stated, established as thus been predicate which to no foundation remained City presumption.” Hancock Land Co. the Portland, p. (supra) 90. 82 Or. at and Commission, In French v. State Industrial Accident (1937), plaintiff had P. 156 Or. proving had entered into a com- that she burden marriage There the deceased in Idaho. law with mon and had lived in that that she the deceased they found that and wife. as husband state appealed ground on she married, not been had failing to instruct had erred trial court that the statutory presumption, L. A. O. C. accordance with deporting (30), a man and woman themselves 2-407 into a lawful contract and wife have entered husband marriage. The court said: preliminary “Presumptions operate when the established, have been them facts demanded nega- party has not be favored himself when tived judge pre- he asks the fact which

(Í21 presumable nega- is sume. the fact otherwise "When question by proof, contradiction, from and tived free presumption, no a favorable room remains for liberty engage in nor at neither court are * * many cases.) (Citing one: just reviewed, realize that in the decisions “We exception matter before the last, with the propriety engaging in an inference, court fact; or in but is sometimes called what mentioned in we that the reasons those believe equally applicable are to a authorities law.” by giving “Justice cannot be facilitated one side malce-weight by plac- of a of an issue the benefit ing handicap (Italics ours.) the other side.” v. French State Industrial Accident Commission pp. (supra) 156 at 456. 455, Or. p.

In v. Andrew, Consor 61 Or. at 483, 123 P. 491, quoted (1912), approval: court 46 with “Presumptions served a most useful and indis- pensable part many ques- the correct decision of they place tions but are out of when the facts are or known are admitted.” (2d)

See also McDowell v. 142 Hurner, Or. 611, 13 P. (2d) (1932), (set 20 P. A. L. R. 600, 395, 88 578 aside rehearing) Hartwig, p. on v. ; Holland 145 6, Or. at 14, (1933); (supra) 1023 24P. Bunnell v. Parelius 166 p. majority fully at 180. The so-called Or. rule set concurring opinion forth of Mr. Justice Rossman (supra) in the case of Bunnell v. Parelius 166 at Or. quote

pp. portion: 189, 188, we only expedient. “But a an It, purpose. therefore, vanishes when it has served its chrysalis wings gone.. like a It is Its which takes and is purpose adversary while it exists is to coerce the proof. performed submit it has When its full co- it has ercive mission become functus officio, and Ü22 ques-

then the existence nonexistence by ransacking through'the tioned fact is ascertained evidence.” On the other hand, based on the statute, this court repeatedly has laid down the rule that both inferences Doherty Hazelwood, are evidence. v. (1919); P. 475, 849, 90 Or. 175 177 P. 432 Ward v. City (supra); Royal Queen Tribe, Insurance Co. Cox v. p. 374, 42 Or. at 71 P. 60 L. R. A. 620, 95 Am. Rep. (1903); 752 St. Caraduc v. Co., Schanen-Blair 66 (1913); P. 636 Or. Sather v. 110 Giaconi, Or. p. (1923); City Trucking P. 433 at Motor p. Co., Co. Franklin Fire Insurance Or. (1925); P. 812 v. 130 Shea, 239 Clark Or. (1929); concurring p. opinion P. 279 539 see (supra). Mr. in v. of Justice Bunnell Parelius Lusk, summary, say this it is not In view of too much to judicial possible, discordant voices if should, that the impossible, harmonized, or, if that some of them except dissents, be stilled. It is our belief should, large can in measure be decisions that the harmonized majority between the the difference out- view statutory Oregon Oregon rule of is side terminology.. chiefly of one immediately which

In the discussion follows, we type presumption of ourselves to confine of shall namely, statute, a in the deduction defined which law expressly particular directs to be made from law only particular A. It arises L. 2-403. when C.O. facts. in evidence and shown when from have been those facts directs a deduction partiсular facts the law to be made. statutory disputable presump- of all, not Most, but kind. of this are tions majority of rnle outside

The difference between statutory Oregon here is found and the rule presumption. respective a To Professor definitions of jurisdictions, pre- Wigmore majority and in the of having only sumption as a rule of law of law is defined consequences. presumption procedural If a of law pro- logically follows that when defined, thus consequences occurred the have cedural very properly authorities and the officio, is functus cannot or rule of law have held that the weight as evidence. have illuminating find an article McBain of

We Jurisprudence, California School of contains which penetrating Oregon comments on the and California statutory (Smellie Co., v. rule. Southern Pacific (1931)) pre- 299 P. 529 to the effect that a Cal. sumption He is, course, of law evidenced. discuss- Wigmore. ing presumptions defined law as speaks a case in author first of defensively. employed insanity The issue was proof insanity being- the burden of case, criminal People (2d) Chamberlain,

on the defendant. Cal. (1936). P.

257, empaneled insanity may “A to determine testimony weigh witnesses and other evi- testimony dence and if the witnesses and does convince them of other evidence defend- insanity, they may reject ant’s ‘defense’ rationally They only do can this and defense. this. rationally weigh They against a rule of cannot law testimony jury weigh To tell a witnesses. to law is to command them to a rule of do the im- employ sophistry possible of the rankest kind. —to * * may r be term's, asked, In what would a judge guidance' frame an instruction trial jury, presumption may of a that a is evidence that weighed by be them or with all the evidence p. in the case?” 26 Cal. Law Rev. 544.

Concerning pre- cases like the one at bar in a which sumption by proponent, says: is invoked he proof may placed upon “The burden of a

litigant may to a establish fact. He be aided a presumption that fact exists. If then he is judicial further true that the fact exists the probably aided fiat that it is (regard presumption as equivalent evidence) given him we have to an advantage unfair and started the law suit with contradictory positions. It is unfair to one of the litigants say ‘your opponent to him that has the proving burden of that the fact he asserts is true you but we declare the outset that what he ” probably asserts to be true is true.’ majority Hnder the doctrine, to instruct that, presumption type there is a of law of the now unnecessary, under discussion would be and to advise them that such is evidence would be improper. yet aspect

But we have to consider another of the expounded Wigmore majority as doctrine and the Although they rulings. define a merely they a rule of law and therefore not evidence, fully recognize particular proved the identical facts give presumption (the rise to the law) which rule generally do also gen- create an inference probative nothing force. uine There majority in denies to such proba- which inferences of rule fact the weight evidentiary they may tive be entitled jury. at the hands court or scope narrow of a the definition and also complete probative recognition, force of inferences which very produce presump- from the facts which arise following Wig- passage tion made clear from is more : long legal attaches no

“So as the law conse- quences way duty upon opponent of a in the contrary with evidence, come forward there is no propriety applying ‘presumption’ the term great probative signifi- their such however facts, Wigmore (3d Ed.) on Evidence cance” §2491, p. 288. Company

In New York Insurance v. Ross, 30 Life p. (1928), P. the court well stated the majority doctrine. presumption, as such,

“This would not survive tending prove the introduction of evidence suicide or even motive suicide. Thereafter it would have reasoning place (Bruns presumption in the as a no wick Accident Co., v. Standard Ins. 278 Mo. A. L. R. 213 S. W. Von 1213; Crome v. (C. A.) (2d) 350); Ins. C. 11 F. Travelers Co. but, legitimate from a inference human life,

as the ef continue. This inference fect would is sometimes loosely presumption. denominated In nature it evidentiary truly presumption as the is as true is application procedural. practical rules, In of thеse proper understanding jury, and for the merely question seem words—a would method phrasing the established rule—whether the court jury charges continues to rebut it has been after evidence introduced, but charged or whether rebuttable, destroyed but a natural the legitimate inference arises evidence, given probative such evidence, to be lack of effect proper determining deems the issue.” Wojcik Metropolitan The case of Insurance Life presumption against (supra) involved the suicide. Co. said: The court any such

“The basis must be knowledge, ‘the common out be noticed with- judge jury, proof persons that sane ’ ” ordinarily (Citing cases.) kill do themselves. may holdings be the elsewhere, “Whatever this bring such a fact would within the category of those which under our law exhaust them- selves as when substantial counter- produced upon vailing merely leaving is trial, give pre- the circumstances rise to the sumption considered with the other evidence to be any proper in the case as a basis for inferences.” (Italics ours.) (Citing cases.) p. Amodeo, 58, 170 118 Conn. A. at 486, In v. O’Dea (1934), the court said: 487,

“It also true when the is rests experience probability, upon and inherent common produces when the defendant it itself sub- exhausts countervailing v. stantial evidence. Clark Diefen- presump- 147 A. 33. 507, 510, 109 differ, however, Such dorf, Conn. from those of tions which we have they speaking, upon'the in that as are based been experience justify and reason fact that common drawing a certain inference from the circum- given although situation, follows that, stances of disappears presumption as such the case countervailing pro- evidence is when substantial give duced, and circumstances which rise facts it remain and basis a like afford infer- by jury.” (Italics trier, whether court or ence ours.) v. In Standard Insurance Co. Clem Life Jefferson p. (1935), A. L. R. 730, F.

mer, 79 said: the court goes jury, they the case are at

“’When liberty abnormality consideration the to take into

62 r give probative and to dictates, such as their force, of suicide pre- judgment to the fact which the sumption sort, a case of this based, is, by weighed ; fact of deаth violence but ‘it is not the down they may by any probative artificial additional effect; just it for such

estimate intrinsic effect all it seems to have under the circumstances.” (Citing cases.) Metropolitan Beggs Co., And see Insurance Life (1934). N. A. Iowa 257 W. L. R. majority rule well The summarized the an- p. says: A. L. notator in 95 R. at who ‘‘ question is not whether the facts or actual evidence from which the arises be being considered, it well settled that such facts may be considered as evidence, but whether the given artificial effect to them the rule of law, presumption, may given probative i. e., ef- jury.” fect presumptions we see that as to Thus, of law which proved, majority from are deductions facts the rule recognizes separate there are two and distinct consequences from the introduction evidence of “particular having pro- first, facts”: a rule of law consequences requiring opponent go the cedural to and, the evidence second, forward with inferences of particular proved from or deductions the fact facts truly evidentiary, only but which are this view the presumption, as a of law is described and rule so presumption a is not evidence. definition brings a further us to consideration of This Wisely they Oregon adopted or otherwise statutes. have comprehensive far more a definition different they presumption, definition and within that of a have included both of the legal consequences arise xnay from the of proof “particular facts”, i. e., the pro- cedural rule and also the inference of fact which may logically be drawn from the particular facts proved. Under Oregon statutes above a quoted, presump- tion is a deduction from particular facts. A deduc- tion is another word for an inference. So statutory definition of a presxxmption manifests the intent include inference or logical deduction as part An presumption. inference must be founded (1) a fact on legally proved such (2) deduction from that fact as is warranted.

The distinction between the two views concerning is clinched presumptions by our statute which includes inferences the term within “indirect evidence”, majority whereas the view treats inferences as arguments or conclusions facts particular If a proved. includes a deduction presumption or and if an inference, inference is evidence by statutory definition, then, course, a law least includes matter. evidentiary Take the alleged law suicide. First, we seek facts” “particular are that proved. They deceased died violent and external means. We then assume that from such proof law arises against suicide. This requires court to rule that a case of accidental prima death facie made, has been consequently deny nonsxdt and require the defendant forward with go evidence or lose the far case. Thus the result is the if same we apply the definition majority pre- sumption definition. Oregon statutory Beyond this the two views lead point, by different roads to the same result. Under the rule the majority pre-

(¡29 sumption of is but remains officio, law there functus and the fact of violent death a considera- evidence propensities tion the usual of men. The is of fact namely, evidence, fact, and the inference from remains suicide, love of life and the unlikelihood jury. Oregon for the consideration of the Under the fact of death violent and external statutes argument and means is or evidence, inference propensities on the usual of men is based also available tending as for consideration to show the improbability Oregon but under the suicide, statute argument or is this treated included within inference “presumption.” meaning word There is necessity saying procedural no for that the of law rule part definition of con- which is of our objection saying no and there is evidence, stitutes proved, particular i. e., facts violent death, that the constitute the inference therefrom evidence jury. Many presumptions the consideration they in- such because evolved become law experience supported human of fact ferences passions propensities “usual of the a consideration speak presump- Oregon of a decisions men.” so but the defined, law аs for it is evidence, tion of facts Oregon if inference from rule satisfied having probative proved force. The mere is treated as judge, controlling procedure of the of law rule statutory pre- part definition of 'a cannot sumption, The statute evidence. cannot be of man can mind evidence, into nor law make any against than can more weigh law weight yards against pounds. weigh distance expressed is consistent the view think that We Oregon. adjudications in The sitúa- actual with the in tions which law and inferences support proponent’s may are a invoked to case be classified as follows-:

(1) proponent Where the in offers evidence facts raising an and inference then rests and where the opponent" goes jury. offers no the case evidence, the proponent prima carrying The made a has case facie past him a nonsuit, but the inference is a “deduction jury the which reason of the from makes the facts proved.” jury (not must) The result is that the proponent. find for the Such was the case Miller (2d) Semler, 610, v. 137 Or. P. 3 P.

(1931). jury, The case was submitted the plaintiff. found the

(2) proponent proves raising the Where facts a presumption op and of law then rests and where the ponent go no verdict evidence, offers the must -for again proponent. proponent prima has made a carrying past him a nonsuit, case with but this facie expressly difference: here the law directs that a de particular from duction made facts. O. C. L. A. (supra). distinguish 2-403 We a

law from mere inference of fact hold that the jury proponent. must find for the As Mr. said specially concurring Justice Bunnell v. Rossman, (supra), p. distinguishing 166 Or. Parelius presumptions inferences law: * * ‘ * ‘ voluntary The former conclusion; mandatory compulsory the latter is conclu- sion.” pro- find

Since must in this instance for the ponent, it is a clear case which the court must not because the direct, instruct statutory procedural rule. evidence, because of but proponent proves (3) rais- basic facts Where ing and where and rests of law contradictory opponent evi- but not conclusive offers go there whenever case will dence, the fact the basic is a rational connection between Coffey In Hospital fact. inferred Northwestern (1920), P. Association, 96 Or. 189 P. 407 proponent mailing offered evidence the due opponent receiving denied notice. The it. The court said: strong presumption a

“There is that the letter presump- received, so marked was and whether this tion was overcome the evidence the of defendant question jury.” a of was fact for the (O. (24)) L. A. That C. 2-407 is based experience simply upon logical probability. and The receipt duly the likelihood of the mailed letter is as the known to the as to court. see well We no need instructing concerning the them of law. They might, right course, be advised their to they already received, infer that the letter was but City Trucking v. Franklin know. See Motor Co. (1925); P. Co., 102, 116 239 812 Fire Or. Insurance p. Miner, 348, 155 P. 708, v. 83 Or. Stadelman case); (1917) (equity P. 163 P. v. 983 John Mutual Accident Association Travelers Commercial (supra). America proponent proves raising

(4) the facts Where opponent and the and rests where of law contradictory presents of a char- evidence conclusive opponent. go for the The verdict must acter, notwithstanding pre- verdict, direct court must principle sumption. identical to The case is pre Bee Hive discussed force of ease infra. sumption ‍‌‌​‌​‌‌‌‌‌​​‌‌​​‌‌​​‌​‌‌​‌​‌​‌​​‌​​‌‌​‌‌‌‌​​​​‌‌‍spent proponent of law itself when the logical past remaining carried a nonsuit. The infer by “proof one, is overcome ence, if there was free question or contradiction.” French v. State (supra). Industrial Accident Commission Illustrative City Coquille is the case of Kernin of this class v. (supra). proponent

(5) proves raising Where the facts (an inference) presumption of fact and rests and opponent presents contradictory where question “free from not, however, contradiction” jury. go the case must to The fact that there proponent a mere inference favorable does require the court so and instruct, the inference proponent weighed against favorable will be opponent. dubious evidence Miller Service Sales, P. Inc., Or. 96 A. L. R. type. (1934) is of this (6) proponent proves raising Where facts аn opponent presents inference rests where the convincing question evidence free from or contradic- opponent tion, the court must direct a verdict for the despite the inference. Here we encounter a series of firmly cases which establish the law as above Stated. Most of them are actions the owner of an negligence They automobile for the of the driver. proof ownership negligently of establish that of a agency, driven car raises an inference of as dis- tinguished leading from a of law. The case is v. (supra). Judson Bee Hive Auto Service Co. The doctrine of that ap- case has been extended and plied (2d) Lehl 152 Hull, v. Or. P. 470, 53 48, 54 P. (1936); (2d) 290 Kembola v. Lovell Co., Auto 157 Or.

633 v. 160 Fields, Brown Or. 61 (1937); 72 P. (2d) Parelius (supra); Bunnell v. 83 P. (1938); (2d) 124 P. In Ball, Allum (1942). (2d) Or. the rule was Brown v. Fields (supra) though applied, it also that recognized was

‘ í *«= =» question it is a for the ordinarily^ or over- whether evidence refutes determine inference of which arises rea- agency comes the (Class of the son of the automobile.” ownership 5, supra.) Standard Oil Bunch v. Co. California,

In Or. of an inference arose sufficient 1, 23 P. (1933), of but agency, to create a case prima facie it court held that proper whole evidence this was a for the court to direct verdict defendant. the trial : significant language The court used this in- order to avoid of an “In the.consmnmation the facts are within peculiarly and when justice, knowledge opposite party litigant, quantum proof relaxed as to the re- courts have his entitle him to have case quired plaintiff in the absence evidence any submitted to the on jury, ’’ of the defendant. behalf v. Parelius decision was In Bunnell (supra) disclose concurring opinions but unanimous, specially basis of the de- as to proper disagreement some that there is an is expressed the view cision. In one that it is evidence but is which agency inference face cannot stand that character such weak an ar- only of “facts established con- In the other would reject.” bitrary judgment there expressed view is opinion, curring inference. not mere agency, legal Wigmore following doctrine” “majority it is argued espoused, per-

not evidence and that it vanishes when it has creating prima formed of a its function case. facie type If we hold in should this of case that proof facts, particular presumption of raises a of law agency rather than a mere inference of fact, we thereby escape problem would not which arises presumption, standing opposed when such a alone, is question conclusive evidence free from or contradic- any logical agency tion. If there be inference of from proof ownership (a question) vehicle debated although that inference wonld still exist the law also presumption a raised to the same effect. An inference legally proved a is founded on fact on such a deduction from fact as is warranted. L. A. O. C. 2-404. the statute Now, defines an inference as evi- Assuming, logical dence. a then, there is infer- agency ownership, ence of the result would be the say same this class of whether we cases, there is or law, is not for the included inference would as defined statute be evidence in either case. they if fact, Inferences of exist at are all, evidence, standing growing proved alone or whether out of facts they may law, which create but arise greater dignity they than a to no scintilla. If stand by convincing alone and are controverted uncontra- unimpeached they testimony, dicted and must be deemed evidence but “insufficient evidence.” satisfactory

“That evidence is deemed ordinarily produces certainty moral or conviction unprejudiced in an mind. Such evidence alone will justify a verdict. Evidence than less this is de- ” nominated insufficient evidence. O. C. L. 2-111. A. (7) proponent raising Where the offers evidence sup- fact, is, an inference, and with, ports it evidence, other substantial where contradictory opponent the then evi offers substantial jury. goes case, course, to the Davis v. dence, (2d) (1932); P. Underdahl, 140 Or. 13 362 Flem ing (2d) Co., v. 155 Or. 62 P. P. Ambulance 64 (2d) (1937); Ellenberger Co., Fremont Land (1940). necessary Or. P. It is not jury concerning a instruct mere inferences of fact although permissible. it sometimes be (8) proponent raising Where the оffers evidence presumption supports it a of law and with other sub- opponent stantial offers evidence, where sub- contradictory equally it is that evidence, stantial clear go jury. It to this that to the class case must belongs (assuming pre- there is a at bar the case - against only question suicide). sumption of law type the court arises in this of case is whether jury concerning presump- duty to instruct the has a tion of law. depends upon bar in the case at

The decision principles illustrated. What we have which we have type applies concerning of the Bee Hive said cases against greater sui- force to even with question jury a there was bar, cide. In case any presumption against If suicide. irrespective of as a rule considered suicide, weight arbitrarily given evidence as must law, weight inferences from the normal aside from duty of the court proved, be the then would facts think, a as we if, but so, to tell aspect: a has double broadly our statute defined going with the forward (1) relative rule of law evidentiary it fol- (2) inferences, then evidence spent and the case itself law has rule of if the lows gone jury, has there is no need to instruct the remaining as to the proved, inferences from facts although the court could, of course, advise them that they may any consider proper love of life and infer- concerning probability ences along of suicide, with the other the case. To summarize: When- particular ever the necessary basic facts raise presumption of by proof law have been established (pleadings, stipulations like) or the procedural aspects law arises which has which con- They cern the court alone. relate to nonsuits and the duty going forward with the evidence. If those logical basic facts also have a value as evidence of presumed they the then fact, and the inferences drawn therefrom constitute evidence for the consideration of jury, ordinary evidentiary the not as of law, rules but as Oregon, presumptions matter. If, as are so defined only procedural as to include not the or administrative rule of law, but also the inferences from the facts, basic presumption then, sure, to be a as so defined has evidentiary weight, evidentiary but it does not have weight only as a rule of but to law, the extent that the logical pre- basic facts have value as evidence of the pro- fact. sumed the court has When accorded the presumption, cedural effect to the there is no more necessity instructing jury remaining for the as to the logical value of the basic facts and inferences than instructing respect any there is with to other evidentiary matter. proved

This is for if the basic facts fundamental, presumption logical which raise a of law have no value tending prove presumed, fact to a then the court cannot evidentiary weight accord to basic facts and cannot so contrary jury, the instruct the statutes to notwith-

63? exclusively may standing. of an There adopted procedural to facilitate the law character They past carry proponent nonsuit, trials. prove proved facts tend to basic he has

because require opponent, just to but because is his case, knowledge go to facts, have who alone Francisco the evidence. St. Louis-San forward with By type. (supra) Mangum Ry. of that an is v.Co. respon companies are made railroad statute, Arkansas persons property damages or done or for all sible Ultimately running there must of trains. caused injury proof negligence, of creates but of be evidence requiring negligence presumption the railroad contrary. present company some -evidence court said: Supreme decisions of the Court “Under decisions, our own when one States the United injured by operation been to have is shown it creates state, in this a train negligence and burden is then the railroad contrary. produce company some evidence to the that, however, it does When question negligence for the and the one an end jury upon in- evidence; all the considered as evi- cannot be ference an end and the must then dence, but it is at question negligence pass upon from all the introduced. presumption permit to be as the considered “To introduced, has been after other evidence Supreme the Court United would, stated arbitrary, and would unreasonable States, be process of the 14th clause amend the due violate Francisco A. Const.” St. Louis-San C. ment, U. S. Mangum (supra) Ry. 199 Ark. 797, 136S. W. v.Co. p. 160. opinion

The unanimous Supreme the United States Atlantic in Western & Court Railroaod v. Henderson, Ed. 884, 73 L. U. S. S. Ct. 445, is to the Georgia provided A effect. statute same that * * * “ company a railroad shall be liable ** * by any damages running done the of the loco w *# company unless the motives shall make it * * * agents appear sonable their that have exercised rea * * * presumption care the in all cases company.” being the Supreme States Court said United that as con- supreme the court, state statute strued “creates given that is effect an evidence to. inference testimony” weighed against opposing that held creating presumption the statute violates the due process the 14th amendment. The clause of court said:

“Legislation declaring proof of one fact or prima group shall constitute of facts facie evidence fact in of an ultimate issue is valid if there is a proved what rational connection between prima A inferred. what is to be facie person against applied it easts whom is duty going forward with his evidence on point particular to which the re- creating A lates. statute

arbitrary operates deny opportunity or that fair process repel violates due clause of the Legislative fiat 14th amendment. not take judicial place fact in determination of liberty involving property. Manley or life, issues v. Georgia, Sup. Rep. ante, 575, S. U. Ct. cited. and cases railway of collision “The mere fact between a highway grade crossing vehicle at a train and a any basis for furnishes no inference as to whether by negligence was caused the accident rail- way company highway on of the traveler anyone. Reason- fault of or without or of both ing back to its from the occurrence lead does not cause.” apprоved in Bandini Petroleum Co.

The doctrine is Superior U. S. California, the State Court of A. L. R. and see Ed. 76 L. 52 S. Ct. of Evidence, Model Code Institute, American Law Morgan, p. Thus, M. 60. it Edward Foreword give evidentiary appears that statute cannot value our “ there is a rational unless connection to a proved inferred”, what is and what is be between facts and the inferred i. the basic facts. e., between there is such rational connection it exists Whenever statute created it but it because the because inheres not That the nature of the evidence. rational connec an it constitutes and it tion, exists, inference, when (except like all other inferences when for standing it alone is overwhelmed conclusive con tradictory supra). as evidence, in the Bee Hive case, majority presumptions adopting view of

In as no violence our we do statute. forth, thus set We probative presump deprive force of one no any, probative if it has no force, it has if tion, process supported apply the due a rule we do but presumptions to treat decline as clause when we conclusion to which we are forced evidence. arising proof of law having probative particular force need facts basic fully jury. realize that We the word stated to usage, prob “presumption” is one common any ably of law to the rule common not connote does nsground presum use mea In its common man. ” frequently believing probable. It is most used ing or say meaning cannot that the fre We “inference.” loose use quent of the term in instructions is always error if or, so, but as to the reversible, of instruc type tion now under we do discussion, say that it was not error to refuse to instruct concerning a presumption of law and that to instruct the jury that such a pre of law is sumption evidence would be be erroneous, cause such an instruction would tend to confuse the from logical inferences basic facts which the jury are at to liberty consider with rule of with law which are they not concerned and which, as a rule of law, can have no evidentiary weight.

Again, might thought be that our of rule law L. does violence C. A. 2-405 O. (supra) pro vides that disputable presumptions may overcome but unless by evidence, so overcome are controlling. It is true that of law are presumptions un controlling less overcome by evidence, but the statute does not of designate evidence quantum necessary to over come a of law. well be said that It law, as a rule of law, overcome when substantial evidence to the contrary intro duced. This view has the States support United in New York Court Insurance Co. v. Supreme Life That court discusses the mis (supra). Gamer much understood case of Travelers Insurance Co. v. McCon 661, 32 308, 8 L. Ed. S. 127 U. S. Ct. 1360. key, Speaking the court said: opinion “It if the insured held committed suicide, no claim; that, had plaintiff the fact of death by violence, accident would be presumed, and that unless the overcome by evidence the law was for not plaintiff. opinion does indicate the quantum proof required an put end to the It is consistent if presumption. with, indeed it does rule that support, pre- is not sumption evidence and ceases the intro- ’’ s duction of ubstantial proof contrary. (Cit- New York Insurance v.Co. ing many cases.) Life Gamer L. R. A. 1222. (supra) p. states,

Two Montana and California, have enacted statutes identical those Oregon concerning pre- 4 Revised sumptions. Codes of Montana, 1935, 10,600 §§ to 10,606; California of Civil Code Procedure, 1941,

1957 to 1963 and 2061. The decisions in both states reflect the same confusion which has prevailed here.

The courts of both states have adhered to the view that are evidence disputable presiunptions to be weighed against other and have even indicated that such as those of due care and innocence which do not arise from proof basic any facts are also to be weighed evidence, the notwithstanding to A. contrary. rule the 34 L. R. general 942. Gagnon Jones, v. Mont. P. 103 62 (2d) 683 (1936); Smellie Co., v. Southern 212 Cal. 299 P. 529 (1931). Pacific the Yet Montana court also a speaks presumption away law thus: that fades the face contrary and 5 on facts, Wigmore Evidence, cites 2nd Ed. 2493 § Kaiser, v. Johnson Mont. support. P. A recent well (1937). considered (2d) case from Court of Supreme the California has greatly weakened of the Smellie ease the doctrine (supra) has taken a toward the adoption rule long step which we in the case at bar. In Speck forth have set Sarver, 128 P. (1942), the trial Cal. (2d) court in an the automobile negligence instructed case a that of law plaintiff there is was which contributory negligence, not guilty presump- ’ of evidence.’ Upon a “is, itself, species tion appeal an said that instruction Court as to Supreme the 61-2 given properly

existence be situations, in certain but court added: instruction, however, an should not “Such be given plaintiff the evidence introduced where injured party acts and conduct of discloses the ’’ immediately prior question. to or at the time in given that the instruction constituted It held error. was wholly any decision is inconsistent with This recent presump- if evidence, rule that having probative such, law is evidence force as tion of regardless of the remain so introduction of it must judges issue. on the same Three con- other evidence giving conclusion that the instruc- in the curred prejudicial. was not but Chief erroneous tion concurred Gibson Justice * * *

“ that the rules as for the reason presumptions upon which rebuttable nature of by many foregoing opinion have fixed is based been any court, and modifications of decisions of this Legislature, should be effected such rules establishing by overruling time the cases at this them.” Traynor, whom Justice Edmonds con- with

Justice scholarly convincing which dissent, wrote curred, supports strongly in the case at bar. conclusions our dissenting opinion the California statutes examines own) demonstrates, (identical we in detail and our nothing in the statutes re- that there is think, given quires presumptions of law as such should (though logical weight evidentiary inferences weight). proved have such course, do, of basic facts consideration, all which merits dissent, Prom following excerpts: quote the we presumptions be that rebuttable rule “The arbitrary, con- and its weighed is as evidence so sequences impera- so mischievous that it becomes lengths departed tive to set forth to what it has purposes from presumр- the function and of such tions.” pure precedent “It ritualism that a should

gather long respect as much from a life of inconsist- ency long certainty, it as would life of right merely earn the to survive because it has sur- long. certainty, precedent vived so One looks to for vitality. the substance of its If it instead offers only right confusion loses its to endure indefi- nitely. The confusion in the California cases to the function of rebuttable can be the erroneous view only by repudiating eliminated presumptions may weighed

that such be as evidence. supra, Smellie v. Southern Pacific Co., and the cases following it should be overruled. every- procedure “In the field of evidence and thing gained by overruling and little an lost precedent. Nothing away, irrational is taken itas might property in the substantive law of rely. contracts, which one is entitled to Cer- tainly parties in an automobile accident cannot reasonably they operate contend that their vehicles in reliance on the rule in the Smellie That case. judge-made rule awas rule and should at be laid originated. inappro- rest where it It most would be priate responsibility to shift the to of for its demise Legislature, questions it involves policy, questions procedure but technical peculiarly province are within the of the courts.” 113 Mont. Co, Lewis v. New York Insurance Life (1942) 124 P. is a case similar case bar. It arose under Montana statutes sim- ilar to own. our The trial court instructed the was a of accidental em- death, there ploying approved language found in an instruction McConkey (supra) which Insurance Travelers Co. later

was criticised in the case New York Life (supra). jury v. Gamer Insurance Co. was part instructed in A follows: * “ * * may controverted evidence, be other indirect, direct or but unless so controverted a jury preponderance of the evidence the to is bound according presumption.” to the find certainly disapproved an instruction would Such tendency in court because of its to indicate that this proof prove is the defendant to the burden on The Montana held that the court, however, suicide. McConkey relying erroneous, оn the instruction strong persuasive again, find Here, case. we gives the relevant consideration to dissent which approval. Wigmore doctrine with statutes and cites the change the complete Vermont In of the view think strong Montana, we dissent in California and expressed decidedly here view toward the the trend is requested unnecessary give the it was against concerning suicide. instruction v. Clem Co. Insurance In Standard Life Jefferson p. said: (supra) the court F. mer upon “Certainly presumption is not based any difficulty producing or the the evidence accessibility of the to one evidence essential judgment parties, courts as of the or Obviously, presump- socially desirable. what is may justice be done in order that tion is not needed representatives or the to the beneficiaries jurors told that deceased, to be do not need to the to be fair or warned abnormal, suicide policy. plaintiff on a suit on life insurance necessary “Ordinarily, to the to refer it is not charge in the suicide is ad- jury. violence If basic fact of death mitted, and in the proved, presumption arises, absence of countervailing evidence, judge should direct a verdict for the If such plaintiff. should produced, judge charge

the usual fashion. He refer course his discretion to the an in- improbability of suicide as fact, ference of based on the common experience mankind, but should be permitted give the inference such as it deems un- weight best, disturbed by the that the thought inference has some n sortof which probative must artificial force influ- ence their deliberations.” (Italics ours.) v. In the case of Wojcik Metropolitan Insur Life ance Co. A. (supra) (2d) the court p. 133, said:

“The burden to that the death prove by was accidental means was the upon plaintiff she was not entitled to have any presumption against suicide considered in that issue as determining tried, case was though of death ‘nonprobability by suicide’ awas consideration to be by weighed the trial court with the other in evi- circumstances dence at its decision.” arriving v. the ease of Rast Mutual

In Insurance Co. Life York, New 112 F. (2d) (1940), the court said:

“Nor was it error our to refuse to opinion charge jury that sui- presumption against has cide of evidence. It weight is true that Court of Supreme South Carolina has spoken of the carry suicide against as sufficient * * * jury case to the but this is only another that when an way saying death unexplained by violence is established, the legal inference is that the death caused accident rather than suicide.” Travelers Mutual Jahn Commercial Accident

In America, Association Div. 9 N. Y. App. S. after proof death (1939), holding prima out a means makes and external

violent facie the court said: death, accidental ease of charged “They, should also have been however, proof in- adduced the defendant that when dicated that suicide, due to the decedents death was all the evidence which then, from should any presump- regard to decide without credited, consequence had died as a the insured tion, whether consequence of and that suicide, of accident or as proof to establish the burden of case, on the whole accidental means was due to the death was upon plaintiff.” (supra), New York Insurance Co.

In Honrath v. Life on the issue of sides both there was The court said: suicide. accident disclosed, of the record as above we “In view judge the trial to instruct presumption error for believe, it was regarding in this case against suicide.” # #

# party opposite has presumption, when the “The spent force produced prima its evidence, facie has party purpose, whose then, and the its and served op- operated, must meet his favor the ponent’s prima not evidence, with facie evidence presumptions. is not evidence A purely a conclusion.” but fact, of a (Texas) 28 S. W. Association Home In Buro v. Benefit (1930), p. court said: the 905 trial court should “Appellant contends charged there is specifically have committing person against presumption of law agree contention. Our this not with We do suicide. courts judge uniformly should trial that the hold weight neither charge evidence, of the on the legal presumptions charge upon unless he should by exрressly statute.” defined are the same W. O. W. Camp. (Texas) Soverign v. Jennings In said: the court (1927), S. W. committed suicide is a man or not

“Whether by preponderance and must be proved fact question, fact. Since other just any testimony met found that their deceased case has this jury his turbed weight dis- cannot be finding suicide by death it great this court unless was by the testimony.” of and preponderance ^{[*] [*] [*]} it is to state that improper deem it best

“We un- on charge legal presumptions trial court to statute.” are defined the same expressly less cases.) (Citing National Bank Commercial

In the case of First the court 52 P. 1052 Co., Or. (1898), Assurance innocence, of consideration had under J., highly per- statement but Wolverton, suasive. of fact are the natural

“Presumptions presump- rest observation upon experience tions which the constitution nature, of the course of ‍‌‌​‌​‌‌‌‌‌​​‌‌​​‌‌​​‌​‌‌​‌​‌​‌​​‌​​‌‌​‌‌‌‌​​​​‌‌‍the action and the human mind, springs human society. and habits of usage rest the same them, upon ground

law, many Many and enforces. recognizes the law simply are them, however, only partially approved from motives of attaches policy and the law reason, it an the facts which artificial effect be- give belief: tendency Best, their natural yond produce far Just so as the ed.) 303,305. presump- Ev. (A. §§ termed as it where it does maxim, tion or founded reason and proof, not proceed evidentiary it has kind, of human the experience value, of such in the determination value; and, the edict of must law given artificial effect edict, strike off the eliminated, say, is to be —that presump- and what is left will constitute a natural tion, or one of and fact, this will be the measure evidentiary of its value.” (supra) Craiger In Woodmen America v. Modern pp. 92 N. E. at court said: determining charge “In suicide, may properly jury consider the facts and circum- question bearing upon given stances in evidence knowledge light experi- common their instinctively gener- mankind ence that love life and although occasionally ally shun both death, men, take their lives. own The cause of insane, sane directly in issue in this case to be decided death was not presumption of but as an law, inference in the same manner facts of fact as other * * * actions.” оf in civil determined are question put issue, suicide is as “When party affirming case, in this such it devolves same; issue

fact to establish this any proved like other fact in a civil action given touching preponderance of the evidence equally question. balanced, If such evidence is having party fail, must the burden because against suicide, but because of law ’’ (Cit- his affirmative defense. not sustained he has ing many cases.) foregoing was in a in which suicide was said case

pleaded defense. an affirmative Prudential Insurance Co. In Domanowski (1936), N. L. A. 906 action America, J. indemnity policy brought accidental on double was company. in favor of the defendant was death. Verdict urged Upon appeal trial court had com that the refusing to instruct the error mitted reversible as follows: plaintiff, Domanowski, is entitled Stella

“The presumption that the death to the benefit

649 by the Insured was not caused self destruction or suicide.”

# m ^[*] person presump- “Where a is found dead the tions are that death natural or accidental, presumed.” suicide will not be

Speaking requested quoted, of the instructions above and of one other which need not be noticed, Court Appeals Errors said: requests they

“The in vice these three is that seek to a substitute for evidence. The presumption may only aid of a be invoked to estab prima party carrying lish facie case to entitle the proof go jury require the burden of to or to opponent go his presumption to forward with the A evidence. applied by proper in a court case quantum proof to make that that, which, without obliged the court would be or nonsuit direct a ver requests amplified dict. These are not to instruct jury is not evidence and jury cannot be treated as evidence reach ing requests properly a verdict. These were re Metropolitan Co., fused. Kresse v. Life Ins. 111 Law, 474, 168 N. J. A. 634.” In Walters v. Western & Southern Insurance Life (1935), A.

Co., Pa. 178 499 trial court pre instructed the substance that there was a Upon sumption appeal suicide. it was held that had not committed error, court reversible but the Supreme Pennsylvania said: Court deciding judgment

“In not to reverse the of the sanctioning we are not below, court the use of the ‘рresumption’ as it was word used the court charge excerpt in its from judge used in cited above superior opinion court. The trial weighing have made it clear that

should right case the had to consider this evidence in nonprobability of death this suicide, but that place nonprobability could not take the of the evi- by plaintiff required be furnished in order dence prove case.” her (supra); Del v. Amodeo Vecchio v. also O’Dea See (supra); Prudential Insurance Co. Watkins v. Bowers Capitol Realty (supra); Co., Park 98 Conn. Firszt Sackberger (1923); p. v. National A. 300 645, 120 App. (1898), Lodge, Mo. see New York Grand (supra) in v. Ross which the court Insurance Co. Life pre an instruction on as erroneous criticised against sumption case of suicide. The Warbende v. (supra) goes America Insurance Co. Prudential beyond cited. the case last It holds that somewhat presumption general of law that no death is there recognized it the existence of an in but accidental, is properly and therefore that effect held that to ference wap go jury. evidence to to the sufficient See there R. where the annotator has A. L. collected also 103 opposing supporting the doctrine of the both cases cases. cited above there no that error in have concluded re-

We requested concerning presump- fusing as to instruct again call attention suicide. We to the tions reasoning and decision is our limited to the fact that presumption in a conclusion is essen- case proved. tially deduction from facts a There reasonable presumptions statutory disputable which, of law are beyond go entirely prob- a mere assertion of mandate, proved, presumptions consequences from facts not able probability experience public or but on based necessity. presumption policy is a or There of law years person heard from in seven not that a dead. a There be reasonable inference arise which would merely long unexplained from absence effect statutory person is dead, but the mandate which fixes years eight twenty seven rаther than six, or point presumption at which a of death is not arises, experience probability. year on based The seven provision arbitrary necessity. is an rule based on conclusion at which have arrived in we this case does necessarily apply presumption. to such a Both the history and nature of death from years’ partakes seven absence indicate some- what of rule of substantive law. The concerning survivorship persons perish when two calamity same is of similar nature. There will be enough classify legal presumptions time other when they appear specific arise and in their context. The ruling alleged presumption against here relates suicide.

The case under consideration is also to be distin- guished person from such as “that a L; wrong.” (1). innocent of crime or O. C. A. 2-407 brought That cannot be within the statu- tory definition. It is not a deduction which the law expressly particular directs made facts. upon prove nothing,

He need who relies it arises proof any particular without facts. It not is based probability necessity upon on or but broad considera- public policy. improper tions of It is not to instruct the jury pre- on the of innocence, but that sumption in its inherent nature is not evidence and is properly not made so statute. It ais rule which proof to advise serves the that the burden of wrong always party asserting or on crime the it and they any prejudice that must disabuse their minds from charge

arising from the fact that a has been made or an conveys It returned. indictment idea against persons stacked accused and that cards are not rights they upon a trial surrounded all the enter provides statute free men. It is true that our that indi- (1) (2) inferences, two kinds: and rect evidence equivalent saying presumptions, but that is every presumption is evidence. Royal (supra) in- Tribe the trial court In Cox that there was structed of law exception por- suicide. No was taken to that “presump- instruction referred to a of the which tion exceptions An of the bill of of law.” examination tion only exception that the follows: discloses * * * “Whereupon duly excepted counsel following in the first sentence instruction re- given by quested by plaintiff court, and to-wit: plaintiff is therefore entitled recover unless ‘And the evidence presump- this has overcome introduced ” voluntary.’ you that death was and satisfied tion This court said: presumption that the result death is is a

“There benefit of inures to the causes, of natural step, plaintiff, be satis- should, as the first factorily could have defendant before the overcome ’’ ours.) (Italics a verdict. ordinary life an case was in the Cox The action proof policy, was on the burden insurance company suicide as an affirma- to establish defendant by preponderance evidence. Un- tive defense employed presumption was bar, case like defensively by plaintiff. its The trial court in said: instruction * “* * proof if there was no ease, in this Cox, of Mrs. death or manner of cause as to the caused her death was if by as to whether the evidence her own causes, and not natural accident or evenly you find in favor would balanced, hands, was presumption.” of this appellate courts

It is observed that both the trial proof, chiefly were concerned with the burden properly if evidence was advised that was evenly plaintiff, should be for the balanced the verdict had affirmative de- since the defendant asserted the very when, fense of suicide. It is different matter plaintiff proof has the burden of of acci- here, requests says dental death an instruction which plaintiff “The has the burden substance, proof you of death but we now instruct accident, presumption, probably that, reason of his claim is appellant In case, true.” the Cox in its brief con- presumption against ceded that there awas of law sui- exceptions cide. The based were the claim that presumption improperly was stated. In the court’s propriety instructing pre- discussion of the on the sumption, it is difficult tell whether it considered as a reasonable inference from facts proved certainly say as a rule of law. It did not as a rule of law was evidence. The holding proper of the case that it was to instruct presumption. on the think We that the instruction as given amounted to little more than a statement con- cerning proof. the burden of In view of the multitude appeared of recent decisions and texts which have since the date of the think case, Cox we it must not be con- authority proposition sidered an for the it is prejudicial error to refuse to instruct that there is a holding A law suicide. that it give appears was not error to the instruction which in.

Gol very holding that case is different from a that it would give request prejudicial in be error to refuse to case at bar. may provisions

Eeference be made of O. C. every presumed A. 2-204 the effect that witness is L. entirely speak proper It is, course, the truth. so to any presumption case. instruct the that a speaks the truth is not one witness which arises from particular proof presumption facts, but, like the merely asserts that a innocence, witness in the instance stands before the court as an first honest man. nothing in that section There statute which presumption implies evidence, that such nor do the fact, instruct. In so that courts a wit- may speaks any truth overcome ness without contradictory evidence whatever. It be overcome “by merely manner in “by which he testifies” or testimony.” of his L. O. C. A. the character 2-204. that the indicated have difference We between the that taken and the view here view of law largely terminology. are evidence is one of as such In rehearing following appellant’s Oregon on brief supporting cited as view presump are that a cases (supra) v. (specially Bunnell Par elius is evidence: tion concurring opinion of Justice Lusk ; Hansen v. Ore Navigation gon-Washington & Railroad (supra); Co. (supra); v. Schanen-Blair Clark v. Caraduc Shea City v. (supra); Motor Co. Franklin Fire Insurance (supra); (supra); v. Giaconi Sather Dougherty Co. (supra); Peabody v. Co. O. R. Hazelwood v. & N. Co., L. (1891). P. 12 R. A. 1053, 823 21 Or. It is every significant one of those cases the facts upon raising relied proved are having probative facts value and a rational con were presumed nection ultimate fact or inferred. with the nature of a It follows that either view of the presumption, there was evidence each of the cases normally jury. In which would be for the the same following Oregon holding brief the eases were cited as court that the should instruct as to the existence of presumptions: Royal (supra); v. Cox Tribe First National v. Co., Ba nk Portland Commercial Assurance (1898); Peabody P. 33 Or. N. O.R. & (supra); Pullen, Kern v. 6 P. Or. (1931). already

82 A. L. R. 434 The Cox case we have discussed. First National Bank Portland v. Commercial Un Assurance holds ion Co. the court should instruct on the of innocence. We agree. Nothing Peabody concerning is said in the case duty jury. court to instruct Kern v. provision Pullen relates to the L. O. C. A. 2-1001 jury provides are to be instructed “* * * * * * proper on all occasions they conformity not in are bound to find with the any declarations of number of witnesses, which do * # * produce not conviction their minds * * against presumption a “ every ‘proper held that That ease the trial of case is a give statutory Upon occasion’ to instructions.” this point expressly it was overruled Fitze v. American- Steamship Company, Hawaiian 167 Or. P. 439, 117 (1941). We held that such an instruction is not re quired only “proper all on occasions but on occasions.” presumption a Whenever mentioned to the it proper provided occasion to instruct will be them as quoted in the section above. Since the of. G56 every presumed

innocence the rule that witness is speak applies substantially to the truth all the cases, may proper be assumed that all such eases are occa- statutory sions for the instruction. O. L. A. C. 2-1001 (2). Furthermore, most of law do include probative reasonable inferences of fact based on the proved, value of the basic facts and in such cases it is perfectly jury, true that the as stated in the statute, conformity bound to find in with the declarations against (unless, witnesses such a pre- course, the evidence is conclusive a lone sumption) .

Nothing any way we have said limits or narrows duty existing (supra) give under the Fitze case statutory specified instructions in O. C. L. A. 2-1001 proper on all occasions. may urged opinion

It be that this leaves the trial guidance proper procedure courts without as to the involving presumptions goes when case of law jury. The first answer is that their difficulties are greater great of all than those no courts in the jurisdictions majority of pre- where the rule that a sumption such prevails. of law as is not evidence, now the existence Furthermore, of law though of aid to the even not instructed concerning it as a rule of law. provision of O. C. L. A. 5-308, the effect charging jury present court “shall not the case” has been held facts of to restrain the court commenting on the evidence,

from and under some de- a statement to the cisions even effect jury that the are liberty certain to draw proved at inferences from facts thought province to invade the has been of jury. presumption of law which is a there however, When, certainly proved, it is facts a deduction warrants jury that instruct the power to the court within appropriate liberty inference if they to draw the are give rise to the facts which the basic and. proved. In of the are view the deduction permissible to refer it would be suicide, of law improbability as an inference of fact of suicide experience common of life and the the love based on Insurance Co. v. Standard mankind. Life Jefferson Metropolitan (supra); Kresse v. Ins. Clemmer Life Upon proof A. 634. 474, 168 Law 111 N. J. Co., jury might mailing be of a letter the instructed due may receipt. they an inference of its due draw Grayce (Texas) Oil Co. 37 S. In W. Peterson (1931) p. court said: 367 at jury error for the court to tell also “It was may that ‘malice’ inferred same definition be in the from a reckless disre- which show circumstances rights gard regard another, reckless dis- of the consequences to another. In the absence prescribing that such an some statute inference exclusively province may within the drawn, it was be jury or not it was determine whether war- of the given upon the instruction so and the ranted; (Italics ours.) weight evidence.” appropriate inference which An instruction only proved effectuates the from facts drawn legal presumption far as legitimate so function of no more com- concerned, and it contains the statute which creates the than the evidence ment on Thus, the will learn of warrants. evidentiary give right effect tо basic full facts their but will not be confused therefrom, inferences (558 incomprehensible presumption

an instruction a such, i. as a rule of e., law, evidence. foregoing Based the the mi- considerations, nority of court the have arrived the conclusion that judge refusing no committed error was the trial give requested to the instructions and that the view expressed Oregon here does no violence to the statutes. standpoint a of It is matter satisfaction, of procedure principle, sup- sound that our views are ported by provisions of the Model Code of Evidence of the American Law Institute which read as follows:

“RULE 704. EFFECT OF PRESUMPTIONS.

“(1) Subject to Rule 703, when the basic fact presumption aof has been established in an action, presumed the existence of the must fact be assumed unless and until has evidence been introduced which support finding would a of its non-existence or the presumption of an basic inconsistent fact has been established.

“ (2) Subject to Rule when the basic fact of been in an has established action and support has been introduced which would finding presumed presumption the non-existence fact or an fact inconsistent basic has been the existence or established, non-existence of exactly presumed is to fact be determined as if applicable had been no ever action. (1): paragraph on

“Comment practically states the view all text- “This universally applied courts writers, and is ‘presumption’ using they care- are word when ” synonym fully mere ‘inference.’ as a # >£ # presumption, Application A and reasons. “b. legal (1) tool, must be left to be an efficient judge and not be sub- to administer, hands question when it for decision mitted compelling force; have or ceases ‘rebutted’ hear (2) that the never administered be so unpredict- since carries used word (3) different minds; connotations able embodied application by judge easy of a the in rule hurry Rule of trial. This meets these tests. in the #99 # # judges, foregoing prin- guide

As if the the trial a provides adopted, Model ciples the be Code should as follows: regardless

“Except where, in situations of rules mandatory governing presumptions, a instruction aрplication required, the this Rule a be would follows: trial is as has basic fact not sufficient

“I. If the value presumed support fact a evidence find- as pre- ing is there no other evidence that the exists— fact sumed fact is

“A. basic established When the without jury, then, the decision

“ justifying (1) finding no if there is evidence a

contrary presumed judge to the fact, the jury presumed that the instructs fact true; as but must be taken justifying “(2) finding- there is evidence a if contrary presumed judge to the fact, the jury presumed instructs fact does exist. fact has to “B. the basic When established upon jury then evidence, justifying

“(1) there is no a if find- contrary presumed ing to the fact, the jury they judge that if instructs find presumed fact, the basic fact must be true; taken as

“(2) justifying finding if is evidence there a contrary presumed judge to the fact, the jury presumed

instructs the that the fact not exist. does “II. basic has If the fact sufficient as value presumed support finding,

evidence of the fact to a procedure is as follows whether there is or is presumed that the not other evidence fact exists— “A. the basic When fact established without jury, decision then, “ (1) justifying finding if there no evidence

contrary presumed judge to the fact, the presumed instructs the must be fact taken true; but “(2) justifying finding if there is evidence contrary presumed judge fact, the says nothing presumption, about but

leaves the to find the existence or non- presumed fact existence all exactly as if the evidence any had never ‍‌‌​‌​‌‌‌‌‌​​‌‌​​‌‌​​‌​‌‌​‌​‌​‌​​‌​​‌‌​‌‌‌‌​​​​‌‌‍had effect in the action. fact has

“B. When the basic to be established jury, by upon evidence, then, “ (1) justifying finding is no evidence if there

contrary presumed judge fact, to the that if instructs the basic fact presumed established, then the fact must but true; taken as “(2) justifying finding there is evidence if contrary presumed judge fact, nothing presumption,

says about but find leaves the existence or presumed exactly non-existence of fact any if the had never had ’’ the action. effect in opinion Being no error was committed judge, dissents. the writer the trial joins in this dissent. Hat Mr. Justice concurring in Mr. (specially Justice ROSSMAN, J. dissenting part. opinion, but Brand's opinion Mr. written Justice I in the concur parts pre- exception are of those with Brand, rules for the and which state numerals ceded guidance cases. of future

Case Details

Case Name: Wyckoff v. Mutual Life Insurance

Court Name: Oregon Supreme Court

Date Published: Feb 1, 1944

Citation: 147 P.2d 227

Court Abbreviation: Or.