# Judson v. Bee Hive Auto Service Co.

> Oregon Supreme Court · December 16, 1930 · 136 Or. 1

URL: https://www.frixlaw.com/law-library/cases/6908624

## Case

- **Full name:** JUDSON v. BEE HIVE AUTO SERVICE CO.
- **Court:** Oregon Supreme Court
- **Decided:** December 16, 1930
- **Citations:** 136 Or. 1; 294 P. 588; 74 A.L.R. 944; 1930 Ore. LEXIS 155
- **Precedential status:** Published
- **Opinion:** Concurrence by Kelly
- **Judges:** Bean, Belt, Brown, Kelly
- **Cited by:** 55 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6908624

## Opinion text

KELLY, J.
(Specially concurring.) The writer concurs in the opinion of the court that the deduction, to the effect that the driver of an automobile, belonging to another, while operating the same, is the agent of the owner and acting within the scope of such *16 agency, at best, is a mere inference. In every case, examined by the writer, where such deduction has been approved, there is direct testimony tending to prove such agency.
The writer also concurs in the opinion of the court that a mere inference in itself alone is not sufficient to support a verdict when, as in the case at bar, it has been irrefutably rendered inapplicable by uncontradieted direct evidence: Consor v. Andrew, 61 Or. 483 ( 123 P. 46 ).
While the statute recognizes an inference as a degree of evidence (§9-105, Oregon Code 1930), it nowhere defines that degree. An inference is a deduction which the reason of the jury makes from the facts proved: Section 9-802, Oregon Code 1930. When reason can make but one deduction from the facts proved, no inference to the contrary remains.
The distinguished and lovable jurist, who has written the opinion of the court in this case, has had his eyes upon our sister state to the south of us. This is shown by his extensive citation of cases from that great commonwealth. In the opinion of the writer, this accounts for his untenable illustration of an inference, that, when you look through the window and see some one carrying a raised umbrella, you may reasonably infer that it is raining. That may be based upon sad experience in California with its “unusual” weather, but in the glorious climate of Oregon, with its winters of golden sunshine and its summer of shimmering sheen, the only reasonable inference would be that the one carrying the umbrella is a visitor shielding himself from the unexpected effulgence of the sun.
At any rate, if the question to be decided is whether it is raining or not, when only the general use of raised umbrellas is shown, the matter should be submitted to *17 the jury; but, if thereafter uncontradieted testimony is introduced that the sun was shining with dazzling brilliance, the court should withdraw the question from the jury.
In the opinion of the writer, it is not necessary, for the purposes of this case, to decide whether a presumption of law requires the submission of a question of fact to the jury where the uncontradicted direct evidence is contrary to the tenor of such presumption. The writer thinks that no presumption of law is involved in the instant case, but only an inference of fact.
As stated in the opinion of the court, there is a presumption of law that a person not heard from in seven years is dead: Subd. 26, section 9-807, Oregon Code 1930. It is not clear to the writer that a jury could be called in a proceeding having for its purpose the establishment of the alleged fact of death based upon seven years ’ continuous absence: Sections 11-1101 to 11-110, Oregon Code 1930. If, however, an issue of that kind should arise in a trial by jury, it appeals to the writer that the statutory mandate would apply to the effect, — “That they (the jury) 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, Oregon Code 1930.
Under the rule of statutory construction, “inelusio unius est exclusio alterius,” this statute, having included one class of indirect evidence, excludes the other class.
As stated, however, it is not necessary to decide that point for it is not in this case.
The order dismissing the case is a proper one.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6908624. Public record. Not legal advice.