Strain v. Martin

• Decision Date: 29 September 1944
• Docket Number: No. 2470.,2470.
• Citation: 183 S.W.2d 246
• Parties: STRAIN v. MARTIN.
• Court: Texas Court of Appeals

183 S.W.2d 246

STRAIN v. MARTIN.

No. 2470.

Court of Civil Appeals of Texas. Eastland.

September 29, 1944.

Rehearing Denied October 27, 1944.

Appeal from District Court, Knox County; Lewis M. Williams, Judge.

Suit by Ernest E. Martin against C. Hunter Strain to recover damages sustained by plaintiff in an automobile collision. From a judgment overruling his plea of privilege, defendant appeals.

Judgment affirmed.

McMahon, Springer & Smart, of Abilene, for appellant.

M. F. Billingsley, of Munday, for appellee.

FUNDERBURK, Justice.

Ernest E. Martin, hereinafter referred to as Plaintiff, having brought this suit in Knox County against C. Hunter Strain, a resident of Tom Green County, hereinafter referred to as Defendant, to recover damages alleged to have resulted from the negligence of Lee Schaeffer, plaintiff filed a controverting plea tendering issues designed to sustain the venue on the ground that the suit was one based upon a trespass committed in Knox County.

Upon the hearing the Court overruled the plea of privilege, to revise which action the Defendant has appealed. Defendant predicates his appeal upon only two points, namely, (1), the "failure of Appellee to prove that Schaeffer was the agent, servant or employee of Appellee, C. Hunter Strain," and (2), the "failure of Appellee to prove that Schaeffer, even if he was the agent, servant, or employee of Appellant, C. Hunter Strain, was at the time of the alleged collision acting within the scope of his authority."

By the words "failure of Appellee to prove," we understand is meant that there was no evidence to support a finding of such facts as issues of venue. The questions so presented are understood to be questions of "no evidence" in contradistinction to questions of "the sufficiency of the evidence," as the difference is explained in Hall Music Co. v. Robertson, 117 Tex. 261, 1 S.W.2d 857.

The briefs of the parties disclose no difference of opinion on the part of counsel that neither of the two issues of fact involved was supported by direct evidence. No witness testified either that Schaeffer was a servant of Appellant, or that if so, he was acting in the scope of his employment as such. The decision of the questions presented, therefore, involves a consideration of whether such absence of direct evidence to support such issues of fact was sufficiently supplied by legal equivalents thereof consisting of presumptions or inferences from such facts and circumstances as were shown by direct evidence.

The words presumption and inference are often used interchangeably as meaning the same thing. Perhaps all authorities agree that "A presumption of fact cannot rest upon a fact presumed, or, in other words, one presumption cannot be based upon another presumption * * *." 17 Tex.Jur. p. 247, sec. 57. Since the word inference is often used in the same sense as presumption, it is in such sense likewise true, of course, as expressed in the clause following the above quotation that "an inference of a fact" cannot be based "upon other inferences." Id. But there is a distinction between the meaning of the word presumption and the word inference. The nature of the distinction is shown from the following quotation from Corpus Juris Secundum: "The fundamental characteristic of a presumption, as distinguished from an inference, is that the former affects the duty of producing further testimony, not merely the weighing of that already produced. It has also been said that a presumption is a rule which the law makes upon a given state of facts, while an inference is a conclusion which, by means of data founded upon common experience, natural reason draws from facts which are proved." 31 C.J.S., Evidence, § 115. Some characteristics of a presumption as distinct from an inference were stated by Judge Smedley in Empire Gas & Fuel Co. v. Muegge, 135 Tex. 520, 143 S.W.2d 763, 767, as follows: "It is settled in this state, and by the weight of authority elsewhere, that such a presumption is not evidence but rather a rule of procedure or an `administrative assumption' which `vanishes' or is `put to flight' when positive evidence * * * is introduced. * * * It is not evidence and when met by rebutting proof it is not to be weighed by the jury or treated by the jury as evidence in arriving at a verdict." Of course a presumption in such distinctive sense when unrebutted may fully establish a fact in issue. In such case it does so, not as evidence, but as an artificial legal equivalent of the evidence otherwise necessary to do so. If, therefore, such presumption should be attempted to be used to support another presumption, the last presumed fact would not be supported by evidence. Would such a reason for the rule as to presumptions likewise apply to inferences in the distinctive sense of the latter? We do not think so. In such distinct sense, "an inference is a deduction which the reason of the jury [or trier of facts] makes from the facts proved." Joske v. Irvine, 91 Tex. 574, 584, 44 S.W. 1059, 1064. According to another authority, an inference is "a conclusion drawn by reason from premises established by proof." 31 C.J. 1181. An inference is "a deduction from facts proved." Id. Wintz v. Morrison, 17 Tex. 372, 383, 67 Am.Dec. 658. Under said definitions the proposition, it seems to us, is necessarily true that a fact established alone by circumstantial evidence is a fact inferred, not merely a fact presumed. Following the above quotation from Tex.Jur., it is further said that "the rule against the piling of one presumption upon another does not forbid the legal inferences and presumptions which may arise from a fact established alone by circumstances." Id. If, therefore, as we conclude, "a fact established by circumstances" is itself a fact inferred and "the rule against the piling of one presumption upon another does not forbid the legal inferences and presumptions which may arise from a fact established alone by circumstances," that is just another way of saying that a presumption or inference may be based upon an inference. And why not? Is not a legitimate inference from evidence the same as evidence within the requirement that a finding or verdict upon an issue must be supported by evidence? In Shifflet v. St. L. S. W. Ry. Co., 18 Tex.Civ.App. 57, 44 S.W. 918, 921, there was involved a question of whether there was circumstantial evidence to raise as issues of...