this presumption remains until overcome by contradictory evidence.47 § 930. Available evidence not produced Where it lies within the power of a party to produce evidence upon an issue, the burden of which is on him, his failure raises a presumption that such evidence would be unfavorable; 48 but failure of a party to introduce competent witnesses equally accessible to both parties raises no unfavorable inference.49 One who relies on the record of a court of general jurisdiction as proof must introduce the whole of it; otherwise, the presumptions from silence or absence will be against him.50 Without evidence to the contrary, the presumption obtains that the herd law was in effect in the county where the injury to stock was inflicted.' 47 Reeves & Co. v. Martin, 94 P. 1058, 20 Okl. 558. 48 St. Louis & S. F. R. Co. v. Bruner, 52 Okl. 349, 152 P. 1103; Moore v. Adams, 108 P. 392, 26 Okl. 48; First Nat. Bank of Poteau v. Moniot, 50 Okl. 85, 150 P. 1040; Fowler Packing Co. v. Enzenperger, 94 P. 995, 77 Kan. 406, 15 L. R. A. (N. S.) 784; Hodgson v. John Deere Plow Co., 104 Kan. 237, 178 P. 607; Missouri Pac. Ry. Co. v. Kennett, 99 P. 269, 79 Kan. 232; Belknap Hardware Co. v. Sleeth, 93 P. 580, 77 Kan. 164. Where one plaintiff, testifying by deposition in an action on notes, stated that he had an agreement material to the issues, but on the advice of counsel refused to produce it, the legitimate inference was that such agreement would be detrimental to plaintiffs' case. Ireland v. Shore, 137 P. 926, 91 Kan. 326. Where the deposition of a nonresident was taken at the instance of the adverse party, his refusal to testify to material matters within his knowledge, where no sufficient reason is given, is the denial of substantial right, and warrants the inference that the information withheld would have been unfavorable to such witness and of benefit to the party seeking it. Belknap Hardware Co. v. Sleeth, 93 P. 580, 77 Kan. 164. Where it is reasonably within the power of a party to offer evidence upon the facts and rebut the inferences which the circumstances tend to establish against him, and he fails to offer such proof in rebuttal, the natural conclusion is that the proof, if produced, would support the inferences against him, and the jury may act upon that conclusion. Atchison T. & S. F. Ry. Co. v. Davis & Young, 109 P. 551, 26 Okl. 359. 49 Fulsom-Morris Coal & Mining Co. v. Mitchell, 132 P. 1103, 37 Okl. 575. 50 Towne v. Milner, 1 P. 613, 31 Kan. 207. 51 Lusk v. Skelton (Okl.) 169 P. 892; Missouri, K. & T. Ry. v. Savage, 122 P. 656, 32 Okl. 376. (832) § 931. Laws of another state In the absence of proof, the common law of another state is presumed to be the same as that of the forum,52 and, likewise, the statutory law. 53 § 932. Judicial proceedings 54 The regularity of judicial proceedings will ordinarily be presumed. An order will be presumed to be based upon all facts necessary to its validity, where no findings are required.55 32 St. Louis & S. F. R. Co. v. Weaver, 11 P. 408, 35 Kan. 412, 57 Am. Rep. 176; Woolacott v. Case, 64 P. 965, 63 Kan. 35; St. Louis & S. F. R. Co. v. Johnson, 86 P. 156, 74 Kan. 83; Sykes v. Citizens' Nat. Bank of Des Moines, Iowa, 98 P. 206, 78 Kan. 688, 19 L. R. A. (N. S.) 665; Arkansas City Bank v. Swift, 46 P. 950, 57 Kan. 460. 53 The laws of another state when neither pleaded nor proven, will be presumed to be the same as those of the forum. McNair v. Underwood, 55 Okl. 585, 155 P. 553; Mutual Home & Savings Ass'n v. Worz, 73 P. 116, 67 Kan. 506; Bice v. Nelson, 105 Kan, 23, 181 P. 558; Dunbar v. Commercial Electrical Supply Co., 123 P. 417; 32 Okl. 634; Greenville Nat. Bank v. Evans-Snyder-Buel Co., 60 P. 249, 9 Okl. 353; Newton v. New York Life Ins. Co., 148 P. 619, 95 Kan. 427; Marx v. Hefner, 46 Okl. 453, 149 P. 207, Ann. Cas. 1917E, 656; Betz v. Wilson, 87 P. 844, 17 Okl. 383; Nichols v. Bryden, 122 P. 1119, 86 Kan. 941; Keagy v. Wellington Nat. Bank, 69 P. 811, 12 Okl. 33. Where, in an action on an Arkansas note, the laws of Arkansas are not pleaded or proven, they will be presumed to be the same as the laws of Oklahoma. Palmer v. Noe, 48 Okl. 450, 150 P. 462. In a suit on a contract made in another state, where the laws of such state have not been pleaded and proven, it will be presumed they are the same as the laws of the state of the forum. Hoshaw v. Lines, 30 Okl. 67, 118 P. 583. But in a Kansas case it was held, in an action to recover the price of liquor sold to defendant, and sums collected by defendant from third persons, it would not be presumed that the sale of liquors is forbidden by laws of Missouri. Danciger v. Cooley, 157 P. 453, 98 Kan. 38, rehearing denied 158 P. 1119, 98 Kan. 484. 54 Irregularities in the proceedings of courts of record will not be presumed, but must be properly and affirmatively shown. Wilson v. State, 109 P. 289, 3 Okl. Cr. 714. In an action on a judgment against a decedent's estate, it will be presumed that the judgment was legally obtained. Chitty v. Gillett, 46 Okl. 724, 148 P. 1048, L. R. A. 1916A, 1181. Where record of county court in a guardianship proceeding is silent as to 55 Sess. Laws 1915, c. 198, does not specifically require that county court's order approving a deed to lands inherited by full-blood Indian heirs shall contain specific findings as to jurisdictional facts required by section 2 thereof to be alleged in petition for approval, and while that might be the better practice, yet without such special findings the order will be presumed to be based upon all facts necessary to its validity. Dunkin v. Galloway, 75 Okl. 125, 181 P. 939. HON.PL.& PRAC.-53 (833) § 933. Official acts 57 competency of person appointed as guardian, it will be presumed that court, in proper discharge of its duty, upon inquiry adjudged that person designated possessed all requisite qualifications. King v. Shults (Okl.) 180 P. 550; King v. Mitchell (Okl.) 171 P. 725. Where the court record showed that adjournment sine die was announced by sheriff and recorded by the clerk, there is a presumption that announcement was made pursuant to an order of court. Mulcahy v. City of Moline, 171 P. 597, 101 Kan. 532, 102 Kan. 531. It is to be presumed that county court, before ordering the transfer of guardianship cause to county court of another county, performed his duty and found the facts to justify the order to be true. Southwestern Surety Ins. Co. v. Taylor (Okl.) 173 P. 831, 835. The official acts of a city court having jurisdiction of a justice of the peace are presumed to have been rightfully done. Cahill-Swift Mfg. Co. v. Hayes, 157 P. 1169, 98 Kan. 269, denying rehearing 156 P. 735, 97 Kan. 740. Where, after judgment was opened under Code Civ. Proc. § 83 (Gen. St. 1915, § 6974), and cause was tried, files were destroyed by fire, it will be presumed, on files reproduced from recollection of parties and attorneys and affidavits of defendants' attorneys and of trial judge, that statutory requirements were fully somplied with. Wyatt v Collins, 105 Kan. 182, 180 P. 789. 56 Copeland v. Copeland (Okl.) 175 P. 764; Southwestern Surety Ins. Co. v. Davis, 53 Okl. 332, 156 P. 213; Board of Com'rs of Garfield County v. Field, 63 Okl. 80, 162 P. 733; City of Sulphur v. State, 62 Okl. 312, 162 P. 744; CahillSwift Mfg. Co. v. Hayes, 157 P. 1169, 98 Kan. 269, denying rehearing 156 P. 735, 97 Kan. 740. Without allegation or proof that the Kansas board of review acted arbitrarily or dishonestly in disapproving a motion picture film, it must be presumed that it acted in good faith and in the honest exercise of its best judgment. Mid-West Photo-Play Corp. v. Miller, 102 Kan. 356, 169 P. 1154. 57 Southern Surety Co. v. Waits, 45 Okl. 513, 146 P. 431; Board of Com'rs of Greer County v. Gregory, 81 P. 422, 15 Okl. 208; Valley Tp. v. King Iron Bridge & Mfg. Co., 45 P. 660, 4 Kan. App. 622; Cahill-Swift Mfg. Co. v. Hayes, 157 P. 1169, 98 Kan. 269, denying rehearing 156 P. 735, 97 Kan. 740; Board of Education of City of Emporia v. Shepherd, 135 P. 605, 90 Kan. 628. In a suit by one claiming to be the rightful claimant to public land, to enforce his remedy against a person to whom the patent has been issued by the Land Department, all reasonable presumptions will be indulged in support of the department officers. Johnson v. Riddle, 139 P. 1143, 41 Okl. 759. Where a bank commissioner, in winding up insolvent bank, sold certain of its assets, it will be presumed, in absence of an affirmative contrary showing, that he obtained authority for the sale from district court or a judge thereof, as required by Rev. Laws 1910, §§ 302, 304. Williamson-Halsell-Frazier Co. v. State (Okl.) 171 P. 453. When an action is commenced in the district court in the name of the state by the Attorney General, in the absence of an affirmative showing to the contrary, he is presumed to have brought such action after having been is sought to take away the personal rights of a citizen, or deprive him of his property, or place a charge or lien thereon.58 All reasonable presumptions will be indulged as to the regularity of elections.5o A statutory presumption of fraud, not intended to be conclusive, may be overthrown by evidence of good faith.60 § 934. Carriers Property received by an initial carrier in good order is presumed to have been received in like order by the succeeding carrier, and final delivery in bad order raises a rebuttable presumption that the injury occurred on the line of the delivering carrier.o1 A carrier, defending on the ground that the loss of or injury to goods is one excepted by special contract, has the burden of proving, not only the making of the contract, but that the loss or injury falls within it.62 requested to do so by the Governor or one of the branches of the Legislature. Leedy v. Brown, 113 P. 177, 27 Okl. 489. 58 Watkins v. Havighorst, 74 P. 318, 13 Okl. 128; Christ v. Fent, 84 P. 1074, 16 Okl. 375. 59 Town of Grove v. Haskell, 104 P. 56, 24 Okl. 707. Go Williams v. Fourth Nat. Bank, 82 P. 496, 15 Okl. 477, 2 L. R. A. (N. S.) 334, 6 Ann. Cas. 970. 61 Where goods shipped over several connecting lines are found to be injured at destination, there is no presumption that the injury occurred on the line of the first carrier. Chicago, R. I. & P. Ry. Co. v. Diggs, 140 P. 1160, 42 Okl. 183. Where goods shipped over several connecting lines are found to be injured when they reach their destination, there is no presumption that the injury occurred while the goods were in the hands of the first carrier. St. Louis & S. F. R. Co. v. McGivney, 91 P. 693, 19 Okl. 361; Atchison, T. & S. F. Ry. Co. v. Rutherford, 120 P. 266, 29 Okl. 850. The Carmack amendment did not abrogate the rule that property received by an initial carrier in good order is presumed to have been received in like order by the succeeding carrier, and that final delivery in bad order raises a rebuttable presumption that the injury occurred on the delivering carrier's line. Chicago, R. I. & P. Ry. Co. v. Harrington, 44 Okl. 41, 143 P. 325. Where part of a shipment over the lines of connecting carriers is lost, the presumption is that the loss occurred on the line of the delivering carrier. St. Louis, I. M. & S. Ry. Co. v. Carlile, 128 P. 690, 35 Okl. 118. Where cattle in good condition are delivered for shipment over connecting lines, and on delivery some are injured and some are dead, the presumption is that injury occurred on line of delivering carrier. Wichita Falls & N. W. Ry. Co. v. Benton (Okl.) 167 P. 633. 62 Patterson v. Missouri, K. & T. Ry. Co., 104 P. 31, 24 Okl, 747. Proof that a shipment of cattle was in good condition when delivered to an initial carrier, and in damaged condition when received from the terminal carrier, does not raise the presumption of negligence against such terminal carrier where the shipper accompanies the stock under contract to look after it.". 63 Where a carrier which had received a shipment of goods in good condition delivered them in a damaged condition to the consignee, proof that the damage was due entirely to a flood, amounting to an act of God, overcomes the prima facie case against the carrier arising from the acceptance of the goods in good condition and their delivery in a damaged condition, and shifts the burden of proof to the shipper to show that negligence of the carrier co-operated with the act of God in bringing about the damage. In an action for loss of an interstate shipment, the burden is on the carrier claiming a release of liability above an agreed value to prove a valid stipulation of release.65 § 935. Railroads-Injury to passenger A presumption of negligence against a carrier arises from the mere happening of an accident, and proof that it happened from some inexplicable cause will not rebut the presumption." Where a passenger makes out a prima facie case raising a presumption of defendant's negligence, the burden is then on defendant to overcome such presumption to the satisfaction of the jury.7 63 Missouri, K. & T. Ry. Co. v. Peters, 131 P. 525, 37 Okl. 188. 64 Armstrong, Byrd & Co. v. Illinois Cent. R. Co., 109 P. 216, 26 Okl. 352, 29 L. R. A. (N. S.) 671. 65 St. Louis & S. F. R. Co. v. Mounts, 44 Okl. 359, 144 P. 1036. 66 Muskogee Electric Traction Co. v. Eaton, 49 Okl. 344, 152 P. 1109. 67 Missouri, O. & G. Ry. Co. v. Vandivere, 141 P. 799, 42 Okl. 427; St. Louis & S. F. Ry. Co. v. Nichols, 136 P. 159, 39 Okl. 522; Ramsey v. McKay, 44 Okl. 774, 146 P. 210. Where a prima facie case is made out to recover damages to a passenger through derailment of a train, the railroad company must show that the accident could not have been avoided by the exercise of the utmost human prudence. St. Louis & S. F. R. Co. v. Posten, 124 P. 2, 31 Okl. 821. Where, in an action for injuries to a child passenger from a sudden jerk of the train, the burden was on defendant to show that the exercise of due skill, foresight, and diligence could not have prevented the accident. St. Louis & S. F. R. Co. v. Fitts, 140 P. 144, 40 Okl. 685, L. R. A. 1916C, 348. Whenever a carrier seeks to excuse itself for loss occurring by an act of God, or some irresistible superhuman cause, the burden is on the carrier. |