Silva v. Traver

• Decision Date: 15 October 1945
• Docket Number: Civil 4742
• Citation: 162 P.2d 615,63 Ariz. 364
• Parties: AARON S. SILVA, Jr., a Minor, by Aaron S. Silva, His Guardian Ad Litem, Appellant, v. L. E. TRAVER, Appellee, and VERNON W. SILVA, a Minor, by Aaron S. Silva, His Guardian Ad Litem, Appellant, v. L. E. TRAVER, Appellee
• Court: Arizona Supreme Court

162 P.2d 615

63 Ariz. 364

AARON S. SILVA, Jr., a Minor, by Aaron S. Silva, His Guardian Ad Litem, Appellant, v. L. E. TRAVER, Appellee, and VERNON W. SILVA, a Minor, by Aaron S. Silva, His Guardian Ad Litem, Appellant, v. L. E. TRAVER, Appellee

Civil No. 4742

Supreme Court of Arizona

October 15, 1945

APPEAL from a judgment of the Superior Court of the County of Maricopa. Arthur T. LaPrade, Judge.

Judgment affirmed.

Mr. A Y. Moore, for Appellant.

Messrs Ellinwood & Ross, and Mr. Jos. S. Jenckes, Jr., for Appellee.

Lyons Superior Judge. Morgan, J., and Russell, Superior Judge, concur. Note: Chief Justice R. C. STANFORD and Justice ARTHUR T. LaPRADE having disqualified themselves, the Honorable JOHN D. LYONS, Jr., Judge of the Superior Court of Pima County, and the Honorable H. L. RUSSELL, Judge of the Superior Court of Coconino County, were called to sit in their stead.

OPINION

Lyons, Superior Judge.

Appellants, Aaron S. Silva, Jr., and Vernon W. Silva, minors, by their common guardian ad litem, Aaron S. Silva, brought their separate actions against one V. M. Scott and the appellee, L. E. Traver, for damages for personal injuries sustained by the appellants in a collision between a spring-cycle occupied by them and an automobile driven by Scott and admittedly owned by the appellee. In each case it was alleged that at the time of the collision Scott was an employee of the appellee and regularly engaged in the performance of his duties as such.

The two actions were consolidated for trial and tried to a jury. At the close of the evidence the appellee moved for an instructed verdict in his favor in each case for failure of any evidence to show that at the time of the accident the defendant driver was acting within the scope of his said employment by the appellee. The motion was granted and verdicts in favor of the appellee were instructed in each case. The cases against the defendant Scott were submitted to the jury which returned verdicts for the appellants in each instance. From the orders instructing verdicts for the appellee, Traver, the appellants have appealed to this court.

The record of the evidence is before us on an amended statement of facts. Appellee suggests that the method of appeal by a statement of facts under Article 2, Chapter 22, Arizona Code Annotated, 1939, has been superseded by the method set forth in Sections 21-1820 and 21-1821, Arizona Code Annotated, 1939 (Rules 75(b) and 75(c) of the Rules of Civil Procedure); but in the absence of any citations of authority or extended argument we do not now decide that question. So far as material to this decision, the amended statement of facts is as follows:

"The evidence on the question of whether or not the defendant Scott was engaged in the duties of his employment for the Defendant Traver was in substance as follows:

"Both of the defendants admitted that Scott was in the employ of Traver and had been for several months as an attendant at Travers Oil Station, located at 16th Street and Indian School Road, which is a short distance south of the scene of the collision, and that Scott's hours of employment were not regular, but that he closed the station on the evening of the collision at about the hour of 8:00 P. M.

"After closing the station, he drove Traver's automobile and took the money, receipts of the day and went to Traver's home, which is located between the Oil Station and the place where the collision occurred. He stopped the car at Traver's home, went in, turned over the receipts of the day to Traver; that he then requested Traver to permit him, Scott, to use Traver's automobile and take it home with him, keep it over night, so that he could use it the next morning to go to Phoenix to do some shopping for himself; that Traver consented for him to use the automobile for such purpose and Scott then took the automobile and started for home going north on 16th Street and the collision occurred a few minutes later at the place above stated."

It is conceded, and is of course the law in this state, that proof or admission of ownership is prima facie evidence that the driver of a vehicle causing damage by its negligent operation is the servant or agent of the owner and using the vehicle in the business of the owner. Baker v. Maseeh, 20 Ariz. 201, 179 P. 53. But "prima facie evidence," so called, is, strictly, no evidence at all. It is only a presumption of law. Barton v. Camden, 147 Va. 263, 137 S.E. 465. It has been uniformly so treated and denominated by this court. Baker v. Maseeh, supra; Lutfy v. Lockhart, 37 Ariz. 488, 295 P. 975. And such presumptions are mere arbitrary rules of law, to be applied in the absence of evidence. Whenever evidence contradicting a legal presumption is introduced the presumption vanishes. Seiler v. Whiting, 52 Ariz. 542, 84 P.2d 452; Flores v. Tucson Gas, Elec. L. & P. Co., 54 Ariz. 460, 97 P.2d 206.

If this were all there could be no question that the latter principle applies to the present case, and, evidence contradicting the presumption of agency having been introduced, that the court was both justified in instructing and required to instruct verdicts for the appellee. But counsel for appellants strenuously urge that the contradictory evidence here was insufficient to dissipate the presumption because it consisted solely of the testimony of the appellee and the defendant Scott, both interested parties, whose testimony the jury was therefore at liberty to disregard. Without deciding whether the driver Scott was in fact an interested party on the issue of agency, we address ourselves to the question whether this bare presumption of law will justify the submission of a case to the jury in the face of positive contradictory testimony from an interested party.

Upon the question of the procedural effect of the establishment of the basic fact of a presumption (in this case the ownership of the vehicle by the appellee) the authorities are in a state of hopeless confusion. Analyzing the decisions from the various jurisdictions, the American Law Institute, in its Model Code of Evidence, Chapter VIII, sets forth the following important and conflicting views:

"a. The existence of the presumed fact must be assumed unless and until evidence has been introduced which would justify a jury in finding the non-existence of the presumed fact. When once such evidence has been introduced, the existence or non-existence of the presumed fact is to be determined exactly as if no presumption had ever been operative in the action; indeed, as if no such concept as a presumption had ever been known to the courts. Whether the judge or the jury believes or disbelieves the opposing evidence thus introduced is entirely immaterial. In other words, the sole effect of the presumption is to cause the establishment of the basic fact to put upon the party asserting the non-existence of the presumed fact the risk of the non-introduction of evidence which would support a finding of its non-existence. This may be called the pure Thayerian rule, for if Thayer did not invent it, he first clearly expounded it. (Italics ours.)

"b. The existence of the presumed fact must be assumed unless and until evidence has been introduced which would justify a jury in finding the non-existence of the presumed fact. When such evidence has been introduced, the existence or non-existence of the presumed fact is a question for the jury unless and until 'substantial evidence' of the non-existence of the presumed fact has been introduced. When such substantial evidence has been introduced, the existence or non-existence of the presumed fact is to be decided as if no presumption had ever been operative in the action. . . . Unfortunately the cases which support this rule do not define substantial evidence: . . . In many decisions in the State of Washington a variant of this view subtitutes for 'substantial evidence,' evidence from one or more distinterested witnesses.

"c. The existence of the presumed fact must be assumed unless and until the evidence of its non-existence convinces the jury that its non-existence is at least as probable as its existence. . . .

"d. The existence of the presumed fact must be assumed unless and until the jury finds that the non-existence of the presumed fact is more probable than its existence. . . . This is sometimes called the Pennsylvania rule.

"e. The presumption as such is said to operate as evidence of the presumed fact, and this effect is given to it regardless of evidence of the non-existence of the...