Lotto v. Davenport

Gtleillan, C. J. It was decided in Williams v. Davenport, 42 Minn. 393, (44 N. W. Rep. 311,) that the writing charged to be libelous in this ease, under the circumstances stated in the complaint, being the same circumstances as were stated in that case, was a libel. No defect in the evidence of the circumstances on the trial is claimed, except that plaintiff gave no proof of his reputation for gentlemanly and courteous conduct. It is conceded that good repute is [101] in general presumed, so that no evidence of it in the first instance is ordinarily necessary. But as such good reputation is alleged in the complaint, and denied by the answer, it is claimed that under the decision in Dennis v. Johnson, 47 Minn. 56, (49 N. W. Rep. 383,) it was necessary that plaintiff should introduce evidence of it. That decision was to the effect that where, in an action for libel, the complaint alleges and the answer denies good reputation, there is an issue upon it, so that the defendant may prove the want of such reputation, precisely as though he had expressly so alleged in his answer. It was only a question of pleading. Presumptions concern matters of proof. A conclusive presumption dispenses altogether with evidence as to the fact presumed. A removable presumption makes a prima facie case of the existence of the fact, and makes it unnecessary to prove it in the first instance; that is, until evidence is given to the contrary. In the case cited the court never thought of deciding that where a fact is presumed the presumption falls because one party alleges and the other denies the fact, nor that when the parties come to trial the existence of the presumption depends in any manner upon how the issue is made. (Opinion published 53 N. W. Rep. 130.) Order affirmed.