The opinion
SEAWELL, J.,
Concurring in Dissenting Opinion.— I am in accord with the statement of the law as herein made by Mr. Justice Richards as to the weight and sufficiency of presumptions as evidence when standing in contradiction of direct oral testimony. Of course, it was not intended by the legislature that an adversary witness called to the stand was,
ipso facto,
placed under the ban of suspicion. An adversary witness may be examined as a witness on cross-examination and such parts of his testimony as are not acceptable to the party calling him may be impeached in all the ways provided by law for the impeachment of a hostile witness. His testimony, however, stands as evidence in the case. Those portions which are not inherently improbable —in case the character of the witness is not impeached— may not be arbitrarily disregarded, but stand as evidence sufficient to overcome a presumption of the kind appearing in the instant case. The fact that the adversary party is called in no manner places him in the class of impeached witnesses, and unless he is impeached or his testimony is rebutted by the party calling him his testimony is to have the same binding effect as that of any other witness testifying in the ease.
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I wish here to add my adherence to the first and original opinion rendered in this cause and which was, upon rehearing, again adopted as the opinion of the court. The facts as they were therein claimed to be are fully and correctly set forth. The law as therein declared, founded upon the wisdom and experience of age.s, has the approval and sanction of state and federal courts wherever the subject of the weight and effect of presumptions has been drawn to judicial attention. The authorities are too multitudinous to attempt citation.
Rehearing denied.
Seawell, J., and Richards, J., dissented.