(dissenting) :
I respectfully dissent from the memorandum opinion in this case. The jury was instructed that “(a) certificate of stock is prima facie evidence of title to the stock represented thereby * * * ” and then that:
“Since the stock certificate was transferred to the name of Maynard S. Owens and appeared on the books of Sun Oil Company in the name of Maynard S. Owens, the burden of proof is upon defendant Sun Oil Company to prove its affirmative defense that the certificate was not Maynard S. Owens’ own property at the time it was transferred back on the books to the name of Hettie M. Young. In other words, the defendant, Sun Oil Company, must prove, by a preponderance of the evidence, that the gift to Maynard S. Owens was not valid and that the stock certificate did not belong to him.” [Emphasis a<|ded].
The instructions shifted the burden of persuasion from plaintiff-appellee to defendant-appellant on the-central issue of the existence or nonexistence of an inter vivos gift of the Sun Oil Co. stock to Maynard Owens.
In my opinion the application of the rule that the stock certificate was prima facie evidence of ownership merely established the sufficiency of plaintiff-ap-pellee’s evidence to go to the jury and at most shifted the burden of producing evidence but not the burden of persuasion to defendant-appellant. See McCormick on Evidence, §§ 336-342 (2d ed. 1972); IX Wigmore on Evidence, § 2494 (3d ed. 1940). As example, the Oklahoma cases which have applied this presumption of ownership rule1 in purported inter vivos gift situations do not suggest that upon introduction of the stock certificate as evidence of ownership the burden falls upon the opposing party to convince the trier of fact of the nonexistence of a gift of the stock by a preponderance of the evidence. See Frazier v. Oklahoma Gas & Electric Co., 178 Okl. 512, 63 P.2d 11 (1936); Davis v. National Bank of Tulsa, Okl., 353 P.2d 482 (1960). There are no Arkansas cases directly on point.
Plaintiff-appellee alleged ownership of the Sun Oil stock in her deceased husband by virtue of a gift from Mrs. Young. The burden of producing sufficient evidence (to withstand a motion for directed verdict) as proof of the gift and the burden of persuading the jury by a preponderance of the evidence of the existence of a valid gift of the stock rested with plaintiff-appellee. Edwin F. *569Armstrong & Co. v. Ben Pearson, Inc., 294 F.Supp. 163, 167 (E.D.Ark.), aff’d sub nom., Leisure Group, Inc. v. Edwin F. Armstrong & Co., 404 F.2d 610 (8th Cir. 1968); Spink v. Mourton, 235 Ark. 919, 362 S.W.2d 665, 667 (1962). The above mentioned jury instructions effectively relieved plaintiff-appellee of the latter burden by placing the onus on defendant-appellant to prove by a preponderance of the evidence the nonexistence of a valid gift. I think the instruction was misleading and prejudicial. See 5 Am.Jur.2d, Appeal & Error, § 810.
It would be a curious kind of law which would permit a plaintiff, who must prove every essential element of an inter vivos gift and must carry his burden by a preponderance of the evidence, to establish all four elements of an inter vivos gift with a single presumption and by means of that same presumption cast upon the opposing party the ultimate risk of proving to the trier of fact that the nonexistence of the gift is more probable than its existence.
. The rule was first announced in Oklahoma State Bank of Ada v. Cole, 170 Okl. 64, 38 P.2d 914 (1934).