Millar v. Semler

• Decision Date: 20 October 1931
• Citation: 3 P.2d 987,137 Or. 610
• Parties: MILLAR v. SEMLER.
• Court: Oregon Supreme Court

3 P.2d 987

137 Or. 610

MILLAR v. SEMLER.

Supreme Court of Oregon

October 20, 1931

Department 1.

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

On petition for rehearing.

Petition denied.

For original opinion, see 2 P.2d 233.

Robert F. Maguire and F. Leo Smith, both of Portland, for appellant.

Wm. C Ralston, of Portland, for respondent.

RAND, J.

Defendant has filed a petition for rehearing in which he first assumes that we held in our former decision that the presumption of innocence is not applicable in civil cases, and then asserts that, because the presumption is applicable in civil cases it was error for the court to hold that what would otherwise have been a prima facie case, if defendant's son had possessed the age qualifications prescribed by statute, was not a prima facie case, where the proof showed that the son did not possess such qualifications, and where the granting of permission by the father to the son to operate the automobile would be a violation of the statute.

We did not hold that the presumption of innocence is not applicable in civil cases. The presumption of innocence is applicable in both civil and criminal cases. The only difference between the two is the degree of proof required to overcome the presumption. In criminal cases, the evidence must be sufficient to establish the guilt of the accused beyond a reasonable doubt. That requirement does not exist in civil cases. The excerpt which we quoted from a decision of the Supreme Court of the United States ( Lilienthal's Tobacco v. U. S., 97 U.S. 237, 267 24 L.Ed. 901) pointed out, as we attempted to do in our former opinion, that, when a prima facie case has once been established, there is no presumption of innocence left in the case, for that presumption must have been overcome or else the case would not be a prima facie case. It has been the established law in this state that proof of ownership of an automobile negligently operated causing injury is sufficient to make a prima facie case against the owner for injuries sustained, although such owner is not present at the time. Obviously, no case can properly be termed a prima facie case if, at the same time and without introduction of any other proof, it can be overturned and its effect destroyed by an inference or presumption. Before any case can be held to be a prima facie case, every inference and presumption must have been overcome; otherwise the term itself would be a misnomer. It would be a contradiction in terms to say that, after plaintiff has established a prima facie case, and while it exists, it is at the same time overthrown and destroyed without any other evidence being offered by a mere inference or presumption. The term "prima facie case" was defined in Doherty v Hazelwood Co., 90 Or. 475, 175 P. 849, 177 P. 432, as follows: "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 [First Series page] 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."

In defining a prima facie case, various definitions have been collected from the cases in 49 C.J. at page 1346, among which are the following: "*** That amount of evidence which would be sufficient to counterbalance the general presumption of innocence, and warrant a conviction, if not encountered and controlled by evidence tending to contradict it, and render it improbable, or to prove facts inconsistent with it; that which is received or continues until the contrary is shown."

The statute defines a presumption as "a deduction...