EDMONDS, J., Dissenting. I cannot agree with the conclusion that under the evidence presented by the record in these cases the trial judge committed no prejudicial error when he instructed the jury that the law presumes a person takes ordinary care of his own concerns. The plaintiffs, in addition to relying upon the presumption, by the testimony of Rachel Keys and James Ellis, who were occupants of the automobile which Claude Ellison was driving, showed all of the circumstances surrounding the happening of the accident. This testimony was uncontradicted. The opinion of [361]my associates concedes “that the giving of an instruction indicating to the jury that a decedent is presumed to have taken due care of his own concerns is erroneous in a ease where all the details of his conduct and of the accident are disclosed to the contrary by those seeking recovery on account of his wrongful death”, but concludes that under the facts shown “we cannot say that the giving of the instruction complained of was either erroneous in the light of the plaintiffs’ evidence or that it prejudiced the defendant’s rights in any way”. Such a determination, in my judgment, is inconsistent with other decisions of this court on the same subject.
A rebuttable presumption, such as the one stated to the jury by the challenged instruction, assumes that which human reason and experience dictate should be true as the result of certain proved facts. (Ballentine’s Law Dictionary.) A fact is presumed to exist because of the absence of evidence by which it may be established. More specifically, a presumption is a rule of law that under certain circumstances a fact is assumed to be true for the purpose of judicial action.
Although it has not always been so, it is now the rule in this state that a rebuttable presumption is evidence which may be considered by the jury even in the face of evidence to the contrary produced by the litigant against whom the presumption has been invoked. (Mar Shee v. Maryland Assur. Corp., 190 Cal. 1 [210 Pac. 269]; Smellie v. Southern Pacific Co., 212 Cal. 540 [299 Pac. 529].) The reason for this rule is said to be that the jury, as the trier of fact, may not believe the evidence produced in contradiction of the presumption, and in that event the decision is not required to be “in conformity with the declarations of any number of witnesses, which do not produce conviction in their minds against a less number or against a presumption or other evidence satisfying their minds”. (See. 2061, Code Civ. Proc.) Under such circumstances the presumption is opposed by the evidence of the litigant who is contending for a decision contrary to it.
But the situation in the present ease is that one who claims the benefit of the presumption has also offered evidence from which a conclusion directly contrary to it may be inferred. True, under another view of that evidence it is not inconsistent with the presumption. But when it may reasonably [362]be said that the evidence would support a verdict contrary to the presumption, I can see no basis for submitting the presumption to the jury.
That this court has recognized the difficulties which arise in cases where facts are proved from which the law expressly directs a presumption to be made (sec. 1959, Code Civ. Proe.) and there is also evidence tending to prove what actually occurred, is evident from the decisions commencing with Mar Shee v. Maryland Assur. Corp., supra. That case was brought by the beneficiary of an accident insurance policy which had been issued to one Pong Wing. It contained a provision that the insuring company should not “be liable for any injury, fatal or otherwise, resulting directly or indirectly from murder, highbinder acts, or tong wars, anything else in the policy to the contrary notwithstanding”. The insured was shot twice while on the street near his place of business and died as a result of his wounds. The insurance company resisted payment upon the ground that his death occurred from causes excluded by the policy. The plaintiff relied upon the presumption “that a person is innocent of crime or wrong” (see. 1963, Code Civ. Proc.); hence, the shooting was accidental rather than criminal. But he also offered testimony showing the circumstances surrounding the shooting and this court held that the facts so shown were wholly irreconcilable with the presumption and that it was dispelled thereby. In the later case of Smellie v. Southern Pac. Co., supra, the same rule was stated somewhat differently. There the court said: “When the presumption is invoked by a party and his evidence is not inconsistent therewith, it is in the case, provided, of course, the evidence sufficiently establishes a sphere or field within which the presumption can operate.”
Under these two leading cases if the evidence offered by one claiming the benefit of the presumption is “wholly irreconcilable” with the presumption it disappears from the case; if the evidence is not “inconsistent” with the presumption it may be considered. In the later case of Mundy v. Marshall, 8 Cal. (2d) 294 [65 Pac. (2d) 65], the court declined to consider the presumption of due, care where there was evidence from which contributory negligence could be, although not necessarily, inferred. It held that as the plaintiff’s own evidence showed the manner in which the decedent was cross[363]ing the street, the presumption that he was exercising due care could not be invoked. The subject was again considered in the case of Paulsen v. McDuffie, 4 Cal. (2d) 111 [47 Pac. (2d) 709]. There the court pointed out that what the plaintiff did at the time he was injured was entirely covered by the evidence offered on his behalf and there was, therefore, “neither necessity nor reason for indulging in any presumption upon that subject”. Under such circumstances, it was held, an instruction that until the contrary appears by the evidence, a plaintiff is presumed by the law to have exercised ordinary care “had no place . . . and should not have been given. Had this been a ease where the contributory negligence of the plaintiff could have defeated his claim for damages, the consequences following the giving of that instruction might have been most serious, and possibly might have required a reversal of the judgment”.
As I read these cases the latter two hold that whenever a plaintiff offers evidence showing all of the facts and circumstances surrounding the happening of an accident, he cannot invoke the presumption of due care. If this statement be too broad, certainly the first two cases bar the presumption where there is evidence either inconsistent or wholly irreconcilable with it. Under the first statement of the rule the plaintiffs in the present case were not entitled to the benefit of the presumption. And unless the second statement of it means that the evidence which is offered by a plaintiff must be open only to the construction that the one whose actions are being considered, did not use ordinary care, then the same result must follow.
In my opinion it is illogical to say that although one who is relying upon a presumption of due care may not offer evidence which reasonably points to the contrary and submit both the presumption and the evidence to a jury, that such evidence may be considered with the presumption if it is also susceptible to an inference consistent with the presumption. Under such circumstances as a practical proposition it would be impossible for the jury to weigh the evidence because of the court’s instruction. As against the evidence from which negligence could reasonably be inferred, the jury would be confronted by a rule of law that the one whose actions were being considered used due care. In such a situation is it not certain that the jury would feel compelled
[364]to render a verdict which followed the instruction notwithstanding the evidence? It is apparent to me that this is exactly what occurred in the present ease.
From the evidence offered by the - plaintiffs it appears that the collision occurred about 2:30 A. M. on a journey from Los Angeles to Bakersfield which commenced at midnight. Mr. Ellison was driving the five-passenger coach in which four adults and three children were traveling. Alongside the driver’s seat there was a separate one which was occupied by Mr. Ellis. Miss Keys was sitting partly on an overnight bag between these seats and partly upon the seat occupied by Mr. Ellis. Mrs. Andrade and her three children were sitting in the rear seat. Just prior to the accident.the adults “had been talking backwards and forwards in the car, carrying on a conversation” and the children were singing. Miss Keys testified that the car was “going about 30”; it was traveling “down hill” and she “didn’t see anything until we got right up on the truck and at that time the car hit the truck”. Mr. Ellis fixed the speed of the automobile at 30 or 35 miles per hour and stated that “Mr. Ellison was talking to me prior to the accident”; that immediately prior to the crash he saw “a big black object of some kind” close enough so he “could say ‘Look out’ and that is all” before the collision occurred. Afterward, according to his testimony, he saw that the automobile had struck the right rear corner of the trailer. He then noticed the load on the trailer. The angle iron had been moved or pushed to the right. The flat sheet iron that extended over the rear end of the trailer was bent down on the right rear corner and next to it he observed a broken tail light “on the rear end, on the extreme right hand side”.
This evidence, according to one view of it, was “wholly irreconcilable” with the presumption and entirely “inconsistent therewith”. From the testimony of the plaintiffs’ witnesses the jury might have inferred that Mr. Ellison was guilty of contributory negligence because he was driving at-an excessive rate of speed, or while he was not looking ahead, or that he was operating the car while his senses were dulled by fatigue and loss of sleep, or that the automobile did not have headlights as required by law, or that it was not under reasonable control, considering the time of night, the condition of the road and the number of persons in the front [365]part of it. Except for the instruction requiring it to give effect to the presumption, the jury might, have found a verdict in favor of the defendant. Under these circumstances I am of the opinion that the giving of the challenged instruction was prejudicial error and that each of the judgments should be reversed.
Seawell, J., concurred.
Rehearing denied. Seawell, J., and Edmonds, J., voted for a rehearing.