Pariso v. Towse, 92.

• Decision Date: 15 December 1930
• Docket Number: No. 92.,92.
• Parties: PARISO v. TOWSE et al.
• Court: U.S. Court of Appeals — Second Circuit

45 F.2d 962 (1930)

PARISO v. TOWSE et al.

No. 92.

Circuit Court of Appeals, Second Circuit.

December 15, 1930.

Wing & Wing, of New York City (James G. Purdy, of New York City, of counsel), for appellant.

Porter & Taylor, of New York City (George B. Greenough, of New York City, of counsel), for appellee.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

L. HAND, Circuit Judge.

The plaintiff, a boy of fifteen, along with several others, was taken by the defendant, Clayton, for a drive in a motor truck belonging to the defendant, Mrs. Towse, to serenade some friends. There was evidence to justify a jury in finding that on the way, through Clayton's negligence, the car collided with a tree and injured the plaintiff. Clayton was sued and defaulted, and the jury assessed damages against him. Mrs. Towse defended on the ground that she had not consented to Clayton's use of the truck, and therefore that she was not liable under section 282-e of the New York Highway Law (Consol. Laws N. Y. c. 25). The only question raised by the appeal is whether there was evidence enough to go to the jury that she had.

The plaintiff proved nothing except that the defendant owned the truck, and rested on the presumption that Clayton had used it with her consent. Mrs. Towse testified that she ran a boarding house and kept the truck for the needs of the business. Clayton, a young man of twenty-four, was her nephew, and lived with her at her expense. She could not drive the truck, and he did such errands as she directed, going after supplies, taking the boarders' trunks back and forth, and the like; for none of which did she pay him wages. He had been born in the house, had always lived with his aunt and did chores for her, such as carrying wood, milking cows and so on. His mother and father also lived with her and occasionally the father drove the car. All four were a single family living together at Mrs. Towse's expense, doing mutual service. Clayton had often asked leave of Mrs. Towse to use the truck for his own purposes, but she had always denied him, and on the day in question she knew nothing of his proposed drive until she saw him moving away, too far off to hear her call for his return. Clayton corroborated her in this, and the judge thought that there was no evidence on which the jury might find that he was using the car with Mrs. Towse's consent, and dismissed the complaint. The plaintiff appealed.

The defendant's liability depends upon a statute of New York (section 282-e of the Highway Law Consol. Laws N. Y. c. 25), but the case in fact turns upon matters of procedure; whether the possession of a motorcar raises a presumption that the owner has consented to its use; whether, if so, the presumption does more than put the defendant to his proof, which it does not survive; and whether the plaintiff may use the defendant's denials as evidence of consent. In the case at bar it makes a critical difference that these questions do not arise in an action at common law, in which event the District Court would not be bound by the rules of evidence as understood by the state court — at least in this circuit — Massachusetts, etc., Co. v. Norwich Pharmacal Co. (C. C. A.) 18 F.(2d) 934, 939, or by those controlling the burden of proof Hemingway v. Illinois Central R. R., 114 F. 843, 846 (C. C. A. 5); Harmon v. Barber, 247 F. 1, 6, 7 (C. C. A. 6). Here we have a statute, a "law" of the state, which concededly we must follow; and the question is whether the procedure, adopted by the state courts in its administration, is as authoritative as its text. We think it is. Central Vermont Ry. v. White, 238 U. S. 507, 35 S. Ct. 865, 59 L. Ed. 1433, Ann. Cas. 1916B, 252, came up on appeal from a trial in a court of Vermont. 87 Vt. 330, 89 A. 618. The cause of action arose under the Federal Employers' Liability Act (45 USCA §§ 51-59), and the question was as to where the burden of proof lay upon the issue of contributory negligence. In Vermont the plaintiff had to show that he had not contributed to his injuries, while, as is well known, the rule is otherwise in a federal court. The Supreme Court held that the procedure was a part of the statute, and that the state courts must conform. We can see no difference between burden of proof and presumption, and the converse must be true. So we think that the New York decisions are controlling in the matter before us.

It was settled before the statute was passed, and when liability depended upon the common law, that the possession of a vehicle gave rise to a presumption that the driver was upon the owner's business (Norris v. Kohler, 41 N. Y. 43, 44; Ferris v. Sterling, 214 N. Y. 249, 253, 108 N. E. 406, Ann. Cas. 1916D, 1161; Potts v. Pardee, 220 N. Y. 431, 433, 116 N. E. 78, 8 A. L. R. 785; Fiocco v. Carver, 234 N. Y. 219, 220, 137 N. E. 309; Moore v. Rosenmond, 238 N. Y. 356, 358, 144 N. E. 639), and the step was a shorter one, after the statute had imposed liability if he had merely consented to its use (Chaika v. Vandenberg, 252 N. Y. 101, 104, 169 N. E. 103). But the effect in New York of the presumption after the defendant has put in proof is not so plain. In Potts v. Pardee, supra, page 433 of 220 N. Y., 116 N. E. 78, and Rose v. Balfe, 223 N. Y. 481, 486, 487, 119 N. E. 842, Ann. Cas. 1918D, 238, it was said that the presumption disappears upon any "substantial" evidence in defence; and this would appear to imply no more than that the defendant in the prescribed situation must proceed or lose. This is the ordinary meaning (Wigmore, § 2491) in the case of a true presumption. Whatever its justification in policy, a presumption supplies the place of rational inference, and is for that reason to be sharply distinguished from a "presumption of fact," so-called. While of course the evidence which rebuts it must be "substantial," that is near enough to the issue to be logically significant, once so much goes in, the presumption must always disappear. The probative cogency of the facts which raise it, being by hypothesis not enough to support a conclusion, cannot improve by evidence in rebuttal, at least if this be truly such, and does not itself positively support the issue, though at times, of course, it may do so. Thus it follows that the office of a presumption must disappear when the opposite side puts in proof, and the party charged with the burden of proof must fail, if he goes no further, or cannot use his adversary's evidence as support of the affirmative. To hold otherwise would be to impose the burden of proof upon the party having the negative.

Upon such an issue as that at bar it might indeed be possible to argue that the owner's denial could be used in positive support of his consent. He has personal acquaintance with the fact, and the jury is certainly free to find affirmatively that his denial is untrue. Moreover, to find the denial false of something necessarily known to the witness, ought to result in finding true the proposition denied. That, however, would, at least if generalized, carry matters too far. An executor could not for example prove a contract with his testator by calling the promisor, and demanding a verdict because his denial was patently untrue. The law does not ordinarily cut so fine; a party must produce affirmative proof. Cruzan v. N. Y. C. & H. R. R. R. Co., 227 Mass. 594, 597, 116 N. E. 879; Lonergan v. Peck, 136 Mass. 361, 364 (semble); Wallace v. Berdell, 97 N. Y. 13, 21; Boatmen's Savings Bank v. Overall, 16 Mo. App. 510. D'Arcangelo v. Tartar, 265 Mass. 350, 164 N. E. 87, is apparently to the contrary on the facts, but the court certainly did not mean to overrule the earlier Massachusetts decisions. Hence if this be an instance of a true presumption, we should, if free, affirm the...