The opinion
KELLY, J.
(specially concurring). “A presumption is a. deduction which the law expressly directs to be made from particular facts.”: Section 9-803, Oregon Code 1930. The writer is of the opinion that the disputable presumptions declared in section 9-807, ibid, are available in all cases where the particular facts appear in the record from which the statutorily-prescribed deductions are to be made, except only where such presumptions are overcome by opposing evidence or broken in upon by a countervailing presumption:
Consor v. Andrew,
61 Or. 482, 491 ( 123 P. 46 ).
Whether in a given case an appropriate presumption has been overcome, is a' question for the triers of fact, and “they are not bound to find 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.”: Section 9-2001, ibid.
The writer is in accord with the letter of the foregoing statutory excerpt in that he thinks that a pre
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sumption is a species of evidence. It is more than a mere direction as to which party shall proceed.
The only Oregon case cited in the opinion of the court upon the import of a presumption of law is
Kernin v. City of Coquille,
143 Or. 127 ( 21 P. (2d) 1078 ). In that case there was no issue upon the subject of the presumption sought to be invoked. In the view of the writer, in all cases, where an issue of fact is presented for the consideration of a jury, the presumption or presumptions of law pertinent to such issue should be made known to the jury. In such cases the jury and the jury alone are the ones authorized by. law to determine whether relevant presumptions may be treated as bats in a bellfry or beautiful birds bearing timely tidings of truth.
In the case at bar, it is the opinion of the writer that the failure of the trial court to instruct upon the presumption “that a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage”, constituted error; but, because of the character of the testimony of plaintiff herself, such error was not reversibly prejudicial.
The writer concurs in the result.