Upon consideration of the evidence, the writer concurs in the reversal of the judgment upon the sole ground that there is no evidence of negligence supporting the averment of count 3 of the complaint, thus rendering erroneous the refusal to defendant (appellant) of general affirmative instruction requested.
In the writer's opinion the trial court did not err in refusing the general affirmative instruction, in defendant's favor, on the theory that the evidence conclusively established that the wagon driver was not in the employ or service of the defendant (appellant) at the time this child was injured; nor did the court err in overruling the motion for new trial on the theory that the evidence overwhelmingly established that the wagon driver was not, on this occasion, in the employ or service of the defendant. There was evidence directed to showing that the driver had long been and was then in the employment and service of the defendant, and there was evidence to the contrary. It cannot, it seems to me, be soundly affirmed that the jury's verdict in this particular was palpably opposed to the weight of the conflicting evidence, the credibility of which it was the jury's function to determine. "Presumption" and "inference" denote distinct and highly important legal conceptions. Mathews v. A. G. S. Ry. Co., 200 Ala. 251, 253,76 So. 17; Penticost v. Massey, 201 Ala. 261, 264, 77 So. 675, expressly limiting this court's approval of the there quoted statement from Long v. Nute, 123 Mo. App. 204,100 S.W. 511, where the Missouri court had improperly employed the term "presumption" in the place of "inference." In the writer's judgment, a confusion of these terms and of their *Page 80 distinctive conceptions and appropriate effects lead this court to erroneous conclusions in Dowdell v. Beasley, 205 Ala. 130,87 So. 18, and in Massey v. Pentecost (last appeal) 206 Ala. 411,416, 90 So. 866. The citation of the Pentecost v. Massey (second) appeal, as reported in 202 Ala. 681, 81 So. 637, appears to indicate the court's purpose to return to the pertinent rule always prevailing, in respect of the propriety of general affirmative instruction, until Dowdell v. Beasley, supra, and Massey v. Pentecost, supra, on last appeal, wrought departure therefrom.