Opinion
No. 11666
Opinion Filed October 14, 1924.
Evidence — "Legal Presumption."
A "presumption," in the true sense, that is, a legal presumption, is in its characteristic feature, a rule of law laid down by the judge, and attaching to evidentiary facts certain procedural consequences as to the duty of production of other evidence by the opponent. If the opponent does offer evidence to the contrary, the presumption disappears, and the case stands upon the facts and the reasonable inferences to be drawn therefrom. Stumpff v. Montgomery, 101 Okla. 257, 226 P. 65.
(Syllabus by Ray, C.)Commissioners' Opinion, Division No. 1.
Error from District Court, Oklahoma County; George W. Clark, Judge.
Action by Victor Kramer against Nichols-Chandler Home Building Brokerage Company and W.D. Palmer. Judgment for Nichols-Chandler Home Building Brokerage Company, and plaintiff appeals. Affirmed on rehearing.
Hayson Lukenbill and W.P. Kelly, for plaintiff in error.
Everest, Vaught Brewer, for defendants in error.
On Rehearing.The facts are stated in the original opinion, 93 Okla. 227 220 P. 338. The law as stated in the syllabus is adhered to, but the conclusion there reached, that the legal presumption that the driver of the automobile was on some business or mission of the owner, arising from proof of the ownership of the car and the employment of the driver, was of sufficient value as evidence to entitle the case to go to the jury although the presumption had been overcome by positive evidence, was erroneous. We think the law was correctly stated in Stumpff v. Montgomery, 101 Okla. 257, 226 P. 65, where it was said:
"A 'presumption,' in the true sense, that is, a legal presumption, is in its characteristic feature, a rule of law laid down by the judge, and attaching to evidentiary facts certain procedural consequences as to the duty of production of other evidence by the opponent. If the opponent does offer evidence to the contrary, the presumption disappears and the case stands upon the facts and the reasonable inferences to be drawn therefrom."
Following and approving Stumpff v. Montgomery, we think the judgment should be affirmed.
By the Court: It is so ordered.