Chapter 3 301 Presumptions

• Library: Evidence Guide 2003

§301 Presumptions

§302 Applicability of federal law in civil actions and proceedings

§301 Presumptions

(a) Definition

A presumption is an assumption of fact recognized in law from another fact or group of facts found or otherwise established in the action unless rebutted.

(b) Effect

Except as otherwise provided by law, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption but does not shift to that party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast.

Notes

Subdivision (a)—Definition

“Presumptions are aids to reasoning and argumentation, which assume the truth of certain matters for the purpose of some given inquiry. They may be grounded on general experience, or probability of any kind; or merely on policy and convenience.” Detrich v. Mercantile Trust Co., 292 S.W.2d 300, 304 (Mo. 1956) (quoting J. Thayer, A Preliminary Treatise on Evidence at Common Law 314 (1898)).

Following are some presumptions recognized in Missouri appellate court opinions:

1. Letter shown to have been mailed by evidence of the existence of a regular and systematic practice to place outgoing letters in the mail was received by the addressee. Armour & Co. v. Am. Auto. Ins. Co., 80 S.W.2d 685, 685—90 (Mo. 1935). But see Ins. Placements, Inc. v. Utica Mut. Ins. Co., 917 S.W.2d 592, 595—96 (Mo. App. E.D. 1996) (held foundation proof inadequate)
2. The person to whom custody of a child was granted continues to be a suitable custodian. Humphrey v. Humphrey, 888 S.W.2d 342, 345 (Mo. App. E.D. 1994)
3. It is in child’s best interest that a parent have custody. Estate of Williams, 922 S.W.2d 422, 424 (Mo. App. S.D. 1996)
4. “[T]hat a person shown to be alive at a given time remains alive until the contrary is shown by some sufficient proof, or, in the absence of such proof, until a different presumption arises.” Basman v. Frank, 250 S.W.2d 989, 994-95 (Mo. 1952)
5. Upon proof that testamentary will was last in testator’s possession and that after death it cannot be found, that the testator destroyed it with intent of revocation. McClellan v. Owens, 74 S.W.2d 570, 574 (Mo. 1934)
6. Upon proof that title to real property was accepted in tenancy by the entirety, that it was intended to establish joint ownership. Schroeder v. Schroeder, 924 S.W.2d 22, 27-28 (Mo. App. E.D. 1996).
7. Upon proof of “open, continuous, visible, and uninterrupted use” of property for ten years, that the use was “adverse,” shifting the burden of going forward to the party asserting that the use was permissive. Speer v. Carr, 429 S.W.2d 266, 268 (Mo. 1968).
8. Upon proof of the occurrence of communications with a jury during deliberations creates a presumption that the occurrence was prejudicial to the moving party. State v. Babb, 680 S.W.2d 150, 152 (Mo. banc 1984).
9. Upon proof of an executed release of claims, that the document is valid. Andes v. Albano, 853 S.W.2d 936, 940 (Mo. banc 1993).
10. Upon proof of performance of personal services for another absent the existence of a personal relationship that it was intended that there be compensation for the services. Buchweiser v. Estate of Laberer, 695 S.W.2d 125, 128 (Mo. banc 1985).
11. Upon proof of status in...