Doherty v. Hazelwood Co.

• Decision Date: 14 January 1919
• Citation: 177 P. 432,90 Or. 475
• Parties: DOHERTY v. HAZELWOOD CO.
• Court: Oregon Supreme Court

177 P. 432

90 Or. 475

DOHERTY v. HAZELWOOD CO.

Supreme Court of Oregon

January 14, 1919

In Banc.

Appeal from Circuit Court, Multnomah County; Robert G. Morrow Judge.

On petition for rehearing. Denied.

For former opinion, see 175 P. 849.

Harrison Allen, Bert W. Henry, and Griffith, Leiter &amp Allen, all of Portland, for appellant.

R Citron and Henry E. McGinn, both of Portland, for respondent.

BENSON J.

Counsel for defendant has presented a very vigorous and interesting brief upon its petition for a rehearing herein, urging that the prima facie case made by the plaintiff was so completely overwhelmed by the direct evidence of reputable and credible witnesses that it was the duty of the trial court to direct a verdict in favor of the defendant. Throughout the entire argument, however, counsel appears to overlook the distinction between the functions of court and jury. Defendant concedes the settled doctrine in this state to be that proof of ownership, possession, and use of the automobile makes a prima facie case which must be squarely met by the defendant, but insists that, as a matter of law the evidence of a number of reliable witnesses may be so convincing as to justify the court in directing a verdict. This contention is antagonistic to the logic of section 793, L. O. L., declaring inferences and presumptions to be evidence, and section 868, L. O. L., subsection 2 of which makes it the duty of trial courts to instruct juries:

"That they are not bound to find in conformity with the declarations of any number of witnesses, which do not produce conviction in their minds, against a less number, or against a presumption, or other evidence satisfying their minds."

A "prima facie case" is that state of facts which entitles the party to have the case go to the jury. 6 Words and Phrases, 5549. Whenever, therefore, it is determined that a plaintiff has made a prima facie case, it has passed beyond the power of the court to withdraw the case from the jury. This conclusion is not in any manner affected by either section of the Code cited by defendant. Section 797, L. O L., says, it is true, that a presumption "may be overcome by other evidence, direct or indirect"; but the section continues by saying, "but unless so overcome, the jury are bound to find according to the presumption." Section 693, L. O. L., seeks merely to distinguish between direct and indirect evidence, and neither section und...