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State ex rel. v. Ellison.

: Presumptions. A presumption of law is not evidence, but, in a criminal case, is a conclusion which, in the absence of evidence upon the exact question, the law draws from other proof made or facts judiciall; noticed. Presumptions of fact include rebuttable or disputable presumptions of law, and despite such a presumption, the party upon whom it casts its burden in a civil case, makes out his case when he adduces evidence proving his allegation of fact, even though it charges a crime, to be more probably true than untrue. To say in an instruction in a case of a rebuttable presumption, after evidence has been introduced on the question, that "the law presumes" so and so and that such presumption "must be overcome" or "overthrown" by evidence, is sometimes useless, sometimes prejudicial and always illogical.

: Presumption: Injecting Criminal Rule in Civil Case: Preponderance: Cured by Adversary's Instruction. To instruct in a civil case in which the defense is arson which bars plaintiff's right to recover, that "in civil suits (like the present one), just as in the trial of a person charged with a crime, in a criminal case, the law presumes that the person charged with the wilful burning of property is innocent," is in contravention of the rule laid down in Rothschild v. Insurance Co., 62 Mo. 356, in that it is calculated to impress the jury with the belief that greater caution should be exercised by them and greater proof of a more conclusive character should be required to prove, in a civil case, facts constituting a crime than is required in ordinary civil cases; nor is the error cured by an added clause that "the presumption continues until he is proven guilty by a preponderance of the credible evidence in the case;" nor by the fact that the defendant asks an instruction in all respects the same as the instruction given in the Rothschild case less the last clause.

Certiorari to Kansas City Court of Appeals.

RECORD QUASHED.

I. J. Ringolsky and Fyke & Snider for relator.

(1) Relator contends that instruction No. 2 given for the plaintiff and approved by the Court of Appeals is erroneous and the opinion of the court in approving that instruction is in direct conflict with the opinions of this court in the following cases: Rodan v. Transit Co., 207 Mo. 392; Mockowik v. Railroad, 196 Mo. 571;

State ex rel. v. Ellison.

State v. Kennedy, 154 Mo. 268, and Morton v. Heidorn, 135 Mo. 608. (2) Relator contends that the opinion of the Court of Appeals in upholding instruction No. 3 given for the plaintiff is in direct conflict with the decisions of this court in the following cases: Rothschild v. Insurance Co., 62 Mo. 356; Edwards v. Knapp, 97 Mo. 439; Marshall v. Insurance Co., 43 Mo. 586; Smith v. Burrus, 106 Mo. 101; Dakan v. Chase & Son, 197 Mo. 238, and Gray v. Gillilan, 92 Mo. 250. (3), Relator further contends that instruction No. 3 given for the plaintiff is inconsistent with and in absolute conflict with instruction No. 8 given for defendant. Rothschild v. Insurance Co., 62 Mo. 356. It will be observed by the court that instruction No. 3 given for the plaintiff imposes upon the defendant, relator, the burden of proving beyond a reasonable doubt that Ben Weinberg burned, or caused to be burned, the property in question, whereas instruction No. 8 given for defendant advises the jury that a preponderance of the evidence establishing that fact is sufficient, and instruction No. 2 given for the plaintiff tells the jury that in civil suits just as in the trial of a person charged with a crime in a criminal case, the law presumes that the person charged is innocent. Such is not the rule in Missouri in civil cases; in all civil cases whether the commission of a crime be involved or not, the rule in this State is, that a preponderance of the evidence is sufficient to warrant a verdict against the party charged with the commission of the offense.

Ed. E. Yates and Perry S. Rader for respondents.

(1) The Court of Appeals had jurisdiction, on appeal, of the case of W. J. Rice et al. v. Detroit Fire & Marine Insurance Company, and its jurisdiction cannot be ousted by the fact that its opinion is erroneous, unless such error amounts to a failure to follow "the last previous rulings of the Supreme Court" and is

29 Mo.-16

State ex rel. v. Ellison.

therefore a jurisdictional error. It is a constitutional court, and had power to "hear and determine" "the said cause" on appeal (Amendment of 1884, sec. 4; Constitution, art. 6, sec. 12), and having such jurisdiction,. it had power to render a wrong opinion as well as a right one, except on the one point that its opinion must be in harmony with "the last previous rulings of the Supreme Court." State ex rel. v. Robertson, 264 Mo. 678; State ex rel. v. Smith, 173 Mo. 414. (2) Unless the opinion of the Court of Appeals is in conflict with "the last previous rulings of the Supreme Court" on some question of law arising therein, this court has no jurisdiction of this cause, has no authority to maintain its writ of certiorari and said writ should be quashed. Constitution, Amendment of 1884, sec. 6; State ex rel. v. Reynolds, 257 Mo. 20; State ex rel. v. Ellison, 263 Mo. 514; State ex rel. v. Robertson, 264 Mo. 668. (3) There is no conflict between the opinion of the Court of Appeals and "the last previous rulings of the Supreme Court:" Either in the approval of plaintiffs' instruction number 2. Cornelius v. Cornelius, 233 Mo. 36. Or in the approval of plaintiffs' instruction number 3. Fritz v. Railroad, 243 Mo. 77. (4) There is no conflict between the opinion of the Kansas City Court of Appeals in approving plaintiffs' instruction numbered two and the previous rulings of the Supreme Court. It never has been decided by this court, in a civil case to recover the amount of an insurance policy upon property destroyed by fire, where the defense was that the plaintiff "conspired and confederated together with other persons to cause said fire, and said fire was intentionally caused by" the said plaintiff "for the purpose of defrauding defendant," that "the person charged with the wilful burning of the property" is not presumed to be innocent, or that it is error to tell the jury that the person so charged is entitled to that presumption of innocence. The cases of Rodan v. Transit Co., 207 Mo. 392; Mockowik v. Railroad, 196

State ex rel. v. Ellison.

Mo. 571; State v. Kennedy, 154 Mo. 288, and Morton v. Heidorn, 135 Mo. 608, are cited as the cases with which the opinion of the Court of Appeals approving plaintiffs' instruction numbered two, is supposed to be in conflict. Not one of those cases, which are cited as "the last previous rulings of the Supreme Court" with which the opinion of the Court of Appeals is supposed to conflict, has any application whatever to this case. The three civil cases cited deal with a presumption of fact which the law allows to be indulged in the absence of evidence. Not one of them deals with a presumption of law. A presumption of fact is one thing; and a presumption of law is another. A presumption of fact is an inference of an unknown fact to be drawn from known or proven facts. Proof of the continuance of a fact may be presumed or drawn from proof of an existing fact; for instance, if a pedestrian, about to cross a street, is seen to stop and look and listen for an approaching street car, the law, in the absence of any evidence on the subject, will authorize an instruction telling the jury to presume that he continued to look and listen until the car struck him. Presumptions of law are "assumptions made by the law that a strong inference of fact is prima-facie correct, and will therefore sustain the burden of evidence, until conflicting facts on the point are shown." For instance, it is a presumption of law that the holder of a negotiable note is its owner; that a public officer will do his duty; that the possessor of recently stolen goods is the thief. Neither presumptions of fact nor such presumptions of law are conclusive. Neither is for the court. Both are for the jury, and both may be abolished by testimony. The difference is that no presumption of fact is indulged in the presence of proof going to establish or disprove the fact, for then the law does not permit the fact to be inferred from other facts; but a presumption of law adheres throughout the case, in the presence of proof or its absence, and is a matter always

State ex rel. v. Ellison.

for the jury's consideration. 16 Cyc. 1050 and 1073. Cornelius v. Cornelius, 233 Mo. 1, holds that where the law clothes a party to a suit with a presumption of law, he is entitled on request to have the jury told that the law so presumes. (5) In view of that case, the only point that remains to be considered, under this division of the assignment, is, does the law presume that a plaintiff, suing on an insurance policy for loss by fire, and charged with having "conspired and confederated with other persons to cause said fire," and with having "intentionally caused" said fire "for the purpose of defrauding defendant," was innocent? 1st. That such a presumption does exist is overwhelmingly shown by 17 Cyc. 757; 22 Ency. Law (2 Ed.), p. 1282; Knope v. Insurance Co., 74 N. W. (Wis.) 795; Monohaghan v. Insurance Co., 18 N. W. (Mich.) 797; Decker v. Insurance Co., 66 Me. 408; Thoreson v. Insurance Co., 12 N. W. (Minn.) 154; Bank v. Insurance Co., 52 Pac. (Ore.) 1054; Sprague v. Dodge, 48 Ill. 144; Ins. Co. v. Usaw, 4 Atl. (Pa.) 357; Bradish v. Bliss, 35 Vt. 326; Ellis v. Buzzell, 60 Me. 209; Wagoner v. Wagoner, 10 Atl. (Md.) 224; Lyon v. Fleahman, 30 Ohio St. 156. The writer has been unable to find any decision of this court holding that, in a suit on a fire insurance policy, where the defense is that plaintiff intentionally set the fire or caused it to be set for the purpose of defrauding the insurance company, the plaintiff is not entitled to the presumption that he is innocent of that charge, or that he is not entitled to have the jury instructed that he is presumed to be innocent of that charge. Nor has defendant's counsel cited any such case, in any of their briefs. We are, therefore, justified in concluding that there is no such case. Therefore, the opinion of the Court of Appeals could not be in conflict with "the last previous rulings of the Supreme Court" on the point, and hence this court has no jurisdiction on that ground. 2nd. The charge that plaintiffs' second instruction injected a "criminal element"

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