The opinion
On Rehearing.
In appellee’s motion for rehearing his attorneys say this court “evidently did not read the case of Southland Life Insurance Company v. Greenwade [ 138 Tex. 450 ], 159 S.W.2d 854”, and further, that “That case expressly repudiates the doctrine on which the court decided this case and expressly rejected the doctrine announced in the case of National Aid Life Association v. Driskill [Tex.Civ.App.], 138 S.W.2d [238], 239.” Although the Greenwade case was not cited, we did examine it, but only sufficient to satisfy ourselves that the proposition in the Driskill case, which was expressly disapproved in the Green-wade case, involved a different question from the one in this case, and that the Greenwade opinion purported to be in ac *998 cord with Empire Gas & Fuel Co. v. Muegge, 135 Tex. 520 , 143 S.W.2d 763 , which we thought we were following.
However, a more careful reading of the Greenwade opinion, with particular reference to the facts and the judgment rendered, shows that it apparently supports the statement that it “expressly repudiates the doctrine on which the court decided this case * * We have made a careful study of the Greenwade opinion and have reached the conclusion that, rightly understood, it does not show that we have not determined the question in the instant case in full accord with sound legal principles, often recognized and applied by the Supreme Court.
The Greenwade opinion affirmatively expresses the intention of the court not to overrule the Muegge case. This being true, then, of course, one opinion is no more authoritative than the other. In the Greenwade opinion [ 138 Tex. 450 , 159 S.W.2d 858 ] the term “prima facie case” and the words “presumption” and “inference” are used interchangeably as meaning the same thing. The words “presumption” and “inference” are often so used. But there can hardly be any difference of opinion that the word presump tion, in the sense as discussed in the Muegge case [ 135 Tex. 520 , 143 S.W.2d 767 ], that is, “a rule of procedure or an ‘administrative assumption’ which ‘vanishes’ or is ‘put to flight’ when positive evidence to the contrary is introduced,” means something very different from that of the word inference. Such distinction is stated in Corpus Juris Secundum as follows: “The fundamental characteristic of a presumption, as distinguished from an inference, is that the former affects the duty of producing further testimony, not merely the weight of that already produced. It has also been said that a presumption is a rule which the law makes upon a given state of facts, while an inference is a conclusion which, by means of data founded upon common experience, natural . reason draws from facts which are proved.” 31 C.J.S., Evidence, § 115. The relation of presunnption and inference, in their distinctive meanings, to a “prima facie case” may be stated as follows: (a prima facie case may in the present discussion more accurately and concretely be designated as prima facie proof of a fact in issue.) A presumption enables a party having the burden of establishing an issue to establish it, provisionally and prima facie, with less evidence than would be required in the absence of the presumption. On the other hand, there must be evidence to support an inference of a fact in issue and thereby enable a party, having the burden of doing so, to establish such fact, prima facie. A presumption may arise from evidence, insufficient to warrant an inference of the fact in issue, and hence, if the presumption, being in itself no evidence, be “annulled”, or if it “vanishes”, or is “p.ut to flight” by positive contrary evidence, the evidence upon which it was founded remains, as before, insufficient to establish the fact in issue, prima facie. On the other hand, if the evidence (unaided by any presumption) raises an inference of the fact in issue, such evidence, because it is evidence -and not presumption, remains sufficient in itself to establish the issue, prima facie. It follows, therefore, that there is an important difference in consequences between the contradiction by positive evidence of a presumption and the contradiction by such evidence of an inferred fact. The positive contradiction of a presumption results in the destruction of the prima facie proof of the fact otherwise presumed, and imposes upon the adverse party the burden of proceeding with more, or other, evidence upon penalty for failure to do so of having an instructed verdict against him upon the issue. On the contrary, however, the evidence contradictory of an inferred fact, however positive, does not eliminate the inference from consideration by the trier of facts in reaching a conclusion upon the issue.
In the sentence of the Greenwade opinion reading: “The prima facie case of due receipt of the letter made out by plaintiff in the present case is not conclusively rebutted by the company’s evidence tending to establish it was not received,” (Italics ours,) the correctness of that statement depended upon whether “prima facie case” was used as the equivalent of a presumption, or whether it was used as the equivalent of an “inference”. If it meant the same as presumption, in contradistinction to inference, then the idea intended to be conveyed was not happily expressed since, as a moment’s reflection will make clear, there is no such thing as a partial rebuttal of a presumption, and, therefore, no reason to speak of its being conclusively rebutted. On the other hand, if “prima facie case” was used in the sense of prima facie proof of a fact in issue, *999 made only by evidence warranting an inference of such fact, then, of course, nothing less than evidence conclusively rebutting such inference could warrant the court in determining the issue as one of law, rather than leaving it for the determination of the jury. Further, as indicative that “prima facie case” was used to express the concept of an inference in contradiction from a presumption, is the use of the qualifying adjective prima facie. A presumption, in the sense here considered, itself imports the idea of prima facie. In such sense it is tautology to speak of prima facie presumption.
There is other evidence that the term “prima facie case” was used in the true sense of inference, rather than presumption, because otherwise the opinion implies that the burden was on the company (defendant) to prove conclusively that the letter was not received. The burden was upon plaintiff to establish the fact 'that the letter was received. If, therefore, in order to get rid of the presumption that it was received, there was imposed upon the defendant the burden of proving conclusively that the letter was not received, then there was a shifting of the burden of proof from the plaintiff to the defendant. Nothing is better settled in the jurisprudence of this state than that the burden of proof upon an issue never shifts from one party to the other. Clark v. Hiles, 67 Tex. 141 , 2 S.W. 356 ; St. Louis, etc., R. Co. v. Burns, 71 Tex. 479 , 9 S.W. 467 ; Scott v. Pettigrew, 72 Tex. 321 , 12 S.W. 161 ; Jester v. Steiner, 86 Tex. 415 , 25 S.W. 411 , and numerous other decisions of the Supreme Court. We feel that we must assume that there was no intention (none being discussed) to overrule these decisions.
One other consideration would seem to be entirely conclusive in support of the view that inference and not presumption was meant. If the effect of the presumption was to impose the burden upon the defendant in order to get rid of it that he offer evidence to show conclusively that he did not receive the letter, that being conclusive of the issue, there would be no necessity of submitting it to the jury, but on the contrary it would be improper to do so. Such, however, was not the conclusion reached. On the contrary, the holding was that an issue of fact was raised, making the issue one for determination of the jury.
There seems to us to be no escape from the conclusion that if in the quoted sentence if the words “prima facie case” were not meant to express the idea of an inference in contradistinction to a presumption, then the opinion supports the proposition contrary to the long line of cases above cited that in any case where plaintiff offers only sufficient evidence to raise a presumption of the fact in issue which he has the burden of establishing, such presumption is not rebutted, but remains as support for the jury’s verdict, found in accordance therewith, unless the defendant not merely contradicts positively, but conclusively disapproves the otherwise presumed fact. Under such an interpretation of the opinion the true proposition would be that a presumption not merely “affects the duty of producing further testimony”, but in practical effect, shifts the burden of proof upon the issue to which it relates to the opposite party to establish the negative of the fact in issue.
There is much more evidence in the Greenwade opinion indicating that part of the discussion relates to a presumption (as distinguished from an inference) and part relates to an inference (as distinguished from a presumption) but without recognition of any difference in the meaning of the words. For illustration, it is said: “We agree with the company’s contention that a presumption, as such, is not evidence and that it vanished as such in view of the opposing evidence * * Here is evident recognition of the attributes of a presumption, not an inference. Then the company’s contention with which agreement is thus signified is stated as follows: “The company’s contention, reduced to proposition form as substantially stated in the application for writ of error, is that the ‘presumption of fact that the mailed letter was received’ vanished when its evidence tending to show the letter was not received, was introduced.” Although, so far as we can see, this is the very contention to which agreement had just been expressed, the immediate reply was: “Such is not the majority rule, and is certainly not the rule in this State.” Here is clearly evident some mistake of understanding or expression, or both, made still more manifest by citing as the first two authorities the Muegge case and Langlitz v. American Nat. Ins. Co., Tex.Civ.App., 146 S.W.2d 484 , the latter by this court. In the Muegge case, fully corroborative of said contention in the Greenwade case, it was *1000 said: “It is settled in this state, and by the weight of authority elsewhere, that such presumption is not evidence but rather a rule, of procedure or an ‘administrative assumption’ which ‘vanishes’ or is 'put to flight’ when positive evidence to the contrary is introduced.” The declared effect was “The presumption as to the ownership of the truck arising from the registration and the presumption as to its use in transporting the ditching machine arising from the permit are not to be regarded as having mised an issue or issues of fact for the jury’s determination, if such presumptions were met by positive rebutting proof.” (Italics ours.) This poses this question: What was meant by said answer to the company’s contention; or, in other words, why was it declared that “Such is not the majority rule, and is certainly not the rule in this state” ? Was the rule so referred to the same rule regarding the effect of positive evidence contradicting a presumption, of which the opinion in the Muegge case had said: “It is settled in this state, and by weight of authority elsewhere, that such presumption is * * * rather a rule of procedure or an’ ‘administrative assumption’, which ‘vanishes’, or is ‘put to flight’, when positive evidence to the contrary is introduced” ? The conclusion seems inescapable that the rule so referred to in the Greenwade opinion related to inference, rather than presumptions, and that referred to in the Muegge opinion related to presumptions rather than inferences. But the reference in the Greenwade opinion was under the mistaken assumption that the governing rules were the same. The opinion, after expressing agreement as aforesaid with the “company’s contention”, in the succeeding clause expressed disagreement as follows: “But we do not agree that the evidentiary facts upon which it was established, could no longer be considered by the trier of the facts.” Thus it appears the court assumed that unless it qualified its agreement with the company’s contention — “that the ‘presumption of fact that the mailed letter was received’, vanished when its evidence tending to show the letter was not received, was introduced”, — that would imply agreement that the evidentiary facts supporting the presumption likewise vanished. Quite obviously that was a mistaken assumption. Of course the rebuttal of a presumption would not have the effect of eliminating evidence of the facts upon which the presumption was based. The question is, would such evidentiary facts, no longer aided by the presumption or by any other evidence, be sufficient to establish prima facie the issue? Surely, it would seem, there can be no reasonable difference of opinion upon the proposition that if but for the presumption the evidence upon which it was based was insufficient to establish prima facie the issue, then upon the rebuttal and consequent elimination of the presumption such evidence still remained, as before, insufficient of itself to establish prima facie the issue. Only by the plaintiff’s producing more evidence could an issue be raised for the determination of the jury. If three and a half quarts and two pints are required to make a gallon, and two pints be destroyed, will the three and a half quarts nevertheless make the gallon? If from evidence merely sufficient to support a presumption but insufficient in the absence of the presumption to establish prima facie the issue, the presumption be withdrawn, will not such evidence still remain insufficient to establish the issue, prima facie?
The most reasonable construction of the Greenwade opinion, it seems to us, is that what was said about the conclusive rebuttal of a presumption, and the necessity therefor, referred to a prima facie case (or more concretely, prima facie proof of a fact in issue) where the evidence raised, not a presumption, but an inference of the fact in issue. Evidence, if any, sufficient to support such an inference, of course, raised the issue and required its determination by the jury as one of fact, in the absence of conclusive evidence (if any such were possible) rebutting the inference, or, in other words, conclusively rebutting the prima facie proof of the fact in issue.
That evidence sufficient to annul a presumption does not make, or leave, the evidence which supported it sufficient without the presumption to raise the issue and require its submission to the jury is perhaps nowhere better stated than in the opinion by Judge Alexander, while a member of the Court of Civil Appeals. He said: “The evidence is wholly insufficient to establish that he [the servant] was engaged in his master’s business at the time of said collision. Evidence that the truck with which the injury was committed belonged to the news company [defendant] and that it was being driven by one regularly in *1001 its employment, in the absence of evidence to the contrary, raised a presumption that such servant was engaged in the news company’s business at the time of such collision. Studebaker Bros. Co. v. Kitts, Tex.Civ.App., 152 S.W. 464 . This, however, is a mere rule of procedure and the presumption vanishes when positive evidence to the contrary is introduced. * * * When * * * such evidence is positive to the effect that the servant was not engaged in the master’s business at the time of the injury, the presumption is nullified and the burden is then %t.pon the plaintiff to produce other evidence or his cause fails." (Italics ours). Houston News Co. v. Shavers, Tex.Civ.App., 64 S.W.2d 384, 386 . The presumption, the nature and effect of which is here stated, is the same discussed by Judge Smedley in the Muegge case, the Shavers case being one of the cases cited. Is it reasonable to interpret the Greenwade opinion as overruling the opinion in Houston News Co. v. Shavers, supra, when it clearly implies if it does not express approval of the opinion in the Muegge case, which cited the former with approval, and expressly reaffirmed its holding? We think not, and if the opinion in the Greenwade case is not correct, its incorrectness involves a question not mentioned in that opinion. That question may be stated as follows: In a case in which the evidence upon an issue which one party has the burden of establishing by a preponderance of the evidence is sufficient to raise a presumption of the fact in issue, but insufficient to support an inference of such fact, if the other party produces positive (though not conclusive) evidence contrary to the fact presumed, and the party having the burden of proof upon the issue produces no more evidence upon that issue, is the issue supported by sufficient evidence to require its submission to the jury? It seems to have been so assumed in the Green-wade case, but, as said before, the conclusion was based upon failure to recognize the distinction between a presumption and an inference.
In the instant case upon original consideration we took the view that there was no evidence to raise the issue that the cab driver was not keeping a lookout. We assumed that the facts in evidence that the car with which defendant’s cab collided was standing on the street with the lights on, and that the cab driver did not see it in time to avoid the collision might “in the absence of evidence to the contrary”, supported a presumption that he was not keeping a lookout. Our view was that although the evidence alone would not raise the issue, such evidence, plus the presumption, established the issue prima facie. But when the cab driver testified positively he was keeping a lookout and did not see the car because he was blinded by undimmed lights of an approaching car, we said, as Judge Alexander said in the Shavers case, supra, that the evidence annulled the presumption, and without the presumption, the evidence was insufficient to raise the issue so as to require its submission to the jury, the plaintiff having offered no other evidence.
So long as the opinion in the Shavers case has the approval of the Supreme Court as in the Muegge case, which latter appears to be cited with approval in the Greenwade opinion, we feel it our duty to adhere to the views expressed in our original opinion.
If the deduction to be made, if any, from the facts, which we considered as supporting the presumption, is, in its true nature, not a presumption, as we assumed, but an inference, we are, nevertheless, of the opinion that the mere fact that the cab driver did not see the car in time to avoid the collision is alone no evidence that the cab driver was not keeping a lookout, and even if considered as some evidence, it was a mere scintilla, at most affording the basis of a mere guess or speculation.
There was evidence entirely consistent with having kept a lookout sufficient to account for the failure of the cab driver to see the car in time to prevent the collision, aside from the fact that he was blinded by approaching lights. According to the cab driver’s testimony, he was driving at a speed of fifteen or twenty miles an hour for a considerable distance, when, because of undimmed lights of an approaching ■ car he could not see the street, except just down in front of his fender. Driving at a negligent speed under the circumstances was alleged as an independent ground of recovery, and every element thereof was, we think, supported by some evidence. But no issue involving that ground of recovery was submitted or requested or objection made to the failure of the court to submit same. We are unable to satisfy ourselves that every issue in such ground of recovery was con, *1002 chuively established by the evidence, and hence, we must conclude that such ground of recovery was waived under provision of T. R. C. -P. 279. Nevertheless, it appears that the reason the cab driver did not see the car in time to avoid the collision may have been because he was driving too'fast in view of the conditions of. visibility.
Appellees in their motion and brief argue that the speed of the car under the circumstances properly entered into consideration of the evidence of failure to keep a lookout. This contention seems to us to be wholly untenable. It isn’t permissible for a party to allege one ground of recovery and fail to establish it either conclusively or by the verdict of the jury and in the absence of its. submission use it to support recovery upon a different and independent ground. By alleging the two grounds of recovery, appellee himself elected to separate the questions of driving at a negligent speed and failing to keep a lookout.
It is our conclusion that the motion for rehearing should be overruled. It is accordingly so ordered.