We did not hold that the presumption of innocence is not applicable in civil cases. The presumption of innocence is applicable in both civil and criminal cases. The only difference between the two is the degree of proof required to overcome the presumption. In criminal cases the evidence must be sufficient to establish the guilt of the accused beyond a reasonable doubt. That requirement does not exist in civil cases. The excerpt which we quoted from a decision of the Supreme Court of the United States pointed out, as we attempted to do in our former opinion, that when a prima facie case has once been established there is no presumption of innocence left in the case for that presumption must have been overcome or else the case would not be a prima facie case. It has been the established law in this state that proof of ownership of an automobile negligently operated causing injury is sufficient to make a prima facie case against the *Page 619 owner for injuries sustained although such owner is not present at the time. Obviously, no case can properly be termed a prima facie case if, at the same time and without introduction of any other proof, it can be overturned and its effect destroyed by an inference or presumption. Before any case can be held to be a prima facie case every inference and presumption must have been overcome; otherwise, the term itself would be a misnomer. It would be a contradiction in terms to say that after plaintiff has established a prima facie case and while it exists it is at the same time overthrown and destroyed without any other evidence being offered by a mere inference or presumption. The term "prima facie case" was defined in Doherty v. Hazelwood Co., 90 Or. 475 (175 P. 849, 177 P. 432), as follows:
"A prima facie case is that state of facts which entitles the party to have the case go to the jury; 6 Words Phrases, [First Series] 5549. Whenever, therefore, it is determined that a plaintiff has made a prima facie case, it has passed beyond the power of the court to withdraw the case from the jury."
In defining a prima facie case, various definitions have been collected from the cases in 49 C.J., at page 1346, among which are the following:
"* * * that amount of evidence which would be sufficient to counterbalance the general presumption of innocence, and warrant a conviction, if not encountered and controlled by evidence tending to contradict it, and render it improbable, or to prove facts inconsistent with it; that which is received or continues until the contrary is shown."
The statute defines a presumption as "a deduction which the law expressly directs to be made from particular facts": Section 9-803, Oregon Code 1930. It *Page 620 also provides that: "A presumption, unless declared by law to be conclusive, may be overcome by other evidence, direct or indirect; but unless so overcome, the jury are bound to find according to the presumption": Section 9-805, Oregon Code 1930.
By a long involved and not very clear process of reasoning, the defendant seems to contend that, because the driver in the instant case was under the age of sixteen years and the father could not lawfully permit him to operate his automobile, the evidence failed to establish a prima facie case and, therefore, the presumption must be indulged in favor of defendant. InHouston v. Keats Auto Co., 85 Or. 125 (166 P. 531) where the rule controlling the facts proven in the instant case seems to have been first recognized and followed by this court, Mr. Justice McCAMANT, speaking for the court, said:
"Where plaintiff proves that the vehicle which caused the damage belonged to the defendant, the jury is entitled to infer that the driver was defendant's servant and that the vehicle was being used for defendant's purposes. The principle is thus stated in 1 Sherman and Redfield on Negligence, 6th ed., section 158: `When the plaintiff has suffered injury from the negligent management of a vehicle, such as a boat, car or carriage, it is sufficient prima facie evidence that the negligence was imputable to the defendant, to show that he was the owner of the thing, without proving affirmatively that the person in charge was the defendant's servant. It lies with the defendant to show that the person in charge was not his servant, leaving him to show, if he can, that the property was not under his control at the time, and that the accident was occasioned by the fault of a stranger, an independent contractor, or other person, for whose negligence the owner would not be answerable.'" *Page 621
Then after citing a long list of cases in support of the principle announced, the court said:
"These authorities proceed on the theory that the facts are peculiarly within the defendant's knowledge and if the vehicle is not in use for the defendant's purposes he can readily furnish the necessary proof. The admission of ownership made by the defendants in the case at bar was therefore sufficient to make out a prima facie case on the controverted questions."
It is well settled that the parent may make the child his servant or agent and this, as in the case of other persons, may be done expressly or be inferred from the conduct of the parent, and when the relation of master and servant or principal and agent is created between a parent and his child, the parent is responsible to third parties for the negligence of the child while such child is acting in the course of his employment and engaged in the business of the parent: 1 Meachem on Agency (2d Ed.), section 156, and cases cited.
We can conceive of no reason for holding that the prima facie case established by plaintiff's evidence in the case at bar is in any way affected by the relationship of the defendants to each other, or the age of the child.
Petition for rehearing will, therefore, be denied.
BEAN, C.J., ROSSMAN and KELLY, JJ., concur. *Page 622