In a petition for rehearing counsel for the respondent suggests that a rehearing should be had because the case has been decided on matters that were not raised in the briefs or argued at the hearing or even presented to the trial court. Reference to the opinion will disclose that the main questions considered arise out of the exceptions taken by the plaintiff to the charge of the jury. We did not discuss all of the objections to the charge that were argued by the appellant's counsel, but we did consider those bearing upon the questions of negligence and contributory negligence. The charge given on these matters is quite fully quoted and the circumstances in which it was later supplemented by the court are fully stated. The record before this court shows that the charge was excepted to; that the exceptions were embodied in a motion for a new trial and made a ground of the motion. They are argued both in the brief and supplemental brief of the appellant filed in this court. A portion of the argument is addressed to the question that the court erred in denying the specific requests for instructions that were presented by the plaintiff. This court did not agree with that contention, but it did consider whether or not the charge as given sufficiently defined, for the benefit of the jury, the standards of conduct which the law recognizes as reasonable or unreasonable under the general circumstances shown by the evidence. Further than that, the plaintiff's motion for a new trial, his assignments of error and his brief on appeal advance specifically the contention that the charge was erroneous in that it failed to distinguish between contributory negligence as a proximate cause of an injury to the plaintiff and contributory negligence which might have been a remote cause. In this state of the record it is difficult to see how it can be asserted that a decision which is based principally on these grounds is based upon matters that were not stated in the briefs or argued at the hearing or presented to the trial court. It is true, however, and this may afford a partial explanation for counsel's statement, that the reasoning upon which the opinion is based does not follow closely that *Page 756 advanced by the appellant, and the statute together with a considerable number of additional authorities are cited. The questions of law, however, are not raised for the first time in this court.
As we read the petition there are two fundamental contentions: First, that on the whole evidence the defendant was entitled to a directed verdict and hence that any error in the instructions, such as are dealt with in the opinion, are immaterial; and second, that the instructions embody a correct statement of the law. It is said that the defendant was entitled to have had a verdict directed for him on the ground that it was conclusively shown that Melhouse was not engaged in his master's business. The petitioner says, to quote from the petition: "The only testimony in the case is that he was an employee of the defendant. We have the positive, sworn testimony of the defendant that the driver was not permitted or authorized to use the car for any purpose excepting in the delivery of groceries in his regular employment. We have the positive sworn testimony of the driver that he had not used the car for any other purpose excepting in this single instance." The transcript filed in this court does not, in our opinion, support this statement. The defendant was the first witness called. He testified in part as follows: "Q. What was his (Melhouse's) duty in your employ? What did he do? A. His duty was to deliver the groceries. Q. And did he drive this particular truck? A. Yes, sir. Q. That was true on the 30th day of July? A. Yes, sir. Q. He was the truck driver? A. Yes, sir. Q. And he was working for you on that day as such truck driver? A. Yes, sir. Q.You have heard about this accident and injury to the plaintiff,Mr. Feldman? A. Yes, sir. Q. And do you know the truck used atthe time? A. Yes, sir. Q. Was that your truck? A. Yes, sir. Q.Was this boy at that time driving for you? A. Yes, sir. Q. And inyour employ and in your business? A. Yes, sir. Q. That is all."
Melhouse, after testifying that he had taken the truck that morning and driven down to the depot to mail some letters of his own, testified with reference to his return journey and continued as follows: "Q. And where were you going at that time? A. I was going back to the store. Q. This was before you had started in your duties at the store? A. No, it wasn't. Q. What had you been doing before that? A. I opened the store every morning at seven thirty. Q. Then you stayed *Page 757 at the store for some time? A. Until they came around there. Q.Until some of the Feldmans came? A. Yes, sir. Q. And then yourduties from that time on was to make deliveries? A. Yes, sir. Q. Was Mr. Feldman around that day? A. He was not. Q. Was he in town? A. No, he wasn't. . . . Q. These letters you were taking down were personal letters you had written? A. Yes, sir. Q. To some of your people? A. Yes, sir. Q. And you were then going back to the store? A. Yes, sir. Q. What was your purpose in going back to the store? A. To go back and deliver groceries. Q. You had not made any deliveries yet that day? A. No, sir. . . . Q. Where was this truck kept? A. It was kept in the house right beside Mr. Feldman's house. Q. You delivered it there at night? A. I took it there every night when I got through work. Q. And would get it inthe morning? A. Yes sir. Q. You had used it sometimes to go hometo your meals at noon? A. Yes, sir. Q. And would take letters tothe depot or post office? A. Yes, sir. Q. For yourself and Mr.Feldman? A. Yes, sir. Q. That had been your custom all the timeyou were there? A. Yes."
Feldman further testified: "Q. This was your truck, you owned this Dodge truck? A. Yes, sir. Q. And what authority had you ever given Mr. Melhouse with reference to its use? A. Well just to deliver the groceries, that is all. Whenever there was orders to be delivered. Q. Had you ever at any time authorized him in anyway to use the car for his own business or pleasure? A. Not forhis own private use, no. Q. This was part of the equipment of your business, this automobile truck? A. Yes, sir. Q. Did youever employ Mr. Melhouse to make deliveries of mail or to get themail using this truck? A. No, the mail carrier brings the mailand takes the mail right from the store, whatever there is to bemailed. Q. Did you have any knowledge of Mr. Melhouse ever takingthe truck for the purpose of mailing his own letters? A. No, Ididn't."
Melhouse further testified that he had not at any time prior to the accident carried any mail either for Feldman or himself; that he arrived at the store about 7:30 o'clock; that he usually swept out and fixed up the counters; that on the morning in question Feldman's daughter came to the store about 8 o'clock; that he wrote the letters in question after he had done his work, then he took them to the station *Page 758 to mail them and had not made any deliveries prior to that time. The evidence shows clearly that this accident happened within Melhouse's working hours. He had testified that it was his duty to make deliveries after the Feldmans came to the store in the morning. He was the one who would get the truck in the morning and take it to the garage at night. He sometimes used it to go home to his meals. The record does not show whether Feldman knew of this, but it is not unreasonable to infer that he did. Neither is there any testimony that specifically negatives the employer's assent to such use of the truck by the employee. Feldman negatives only any authority of Melhouse to use the truck for his own business or pleasure. This does not negative express or implied authority for him to use it on a permissible personal errand during working hours, thereby advancing the employer's interest through the saving of time. The cases cited in the original opinion indicate that an employer may be liable for injuries to third persons sustained during such permissible or authorized use. See, particularly, Dierks v. Newsom, 49 Cal. App. 789,194 P. 518; Ward v. Teller Reservoir Irrig. Co.60 Colo. 47, 153 P. 219; Snyder v. Eriksen, 109 Kan. 314, 198 P. 1080; Walsh v. Feinstein, 251 Mass. 109, 146 N.E. 355. The principles according to which a master may be held liable for the act of his servant in driving his automobile or truck, are not new or peculiar to the law of automobiles. One of the best expressions of the controlling principles is that found in Ritchie v. Waller,63 Conn. 155, 27 L.R.A. 161, 38 Am. St. Rep. 361, 28 A. 29, where the injury complained of was occasioned by a servant who was driving a team of horses hitched to a lowly manure wagon, and the contention was advanced that the servant had deviated from his authorized course. The principles were stated as follows:
"Applying these principles to the case at bar, the question for the court below was whether or not Blackwell, for the time being, totally departed from the master's business, and set out upon a separate journey and business of his own. If the rule of law were that any deviation by the servant `to carry some business of his own into effect' was of itself such a departure, the above question would be one of law. But this, as we have seen, is not the rule of law. To decide the question in a case like the present, the trier must take into account, not only the mere fact of deviation, but its extent and nature relatively *Page 759 to time and place and circumstances, and all the other detailed facts which form a part of and truly characterize the deviation, including often the real intent and purpose of the servant in making it."
The defendant, himself, at the outset of the trial testified that at the time of the accident Melhouse was driving for him. Counsel says he was tricked into saying this, but the record does not so indicate. The only explanation attempted to be made later on in the record is that as Feldman was out of town he could not know except from hearsay. If he was willing to make an admission based upon hearsay, it would of course be evidence against him. We think this admission, together with the other circumstances indicating the extent to which the control of the truck was entrusted to Melhouse and the use which he made of it on other occasions, amply warrants the submission to the jury of the question as to whether Melhouse was acting in the course of his employment at the time of the collision, notwithstanding his testimony that he was on an unauthorized errand of his own.
Counsel argues to the effect that the presumption or inference which the law permits to be drawn from proof of the ownership of the vehicle and the character of the employment of the driver is entirely overcome when there is evidence offered to prove the negative of the fact presumed or to be inferred, and cites with approval a discussion of the matter in Stumpf v. Montgomery,101 Okla. 257, 32 A.L.R. 1490, 226 P. 65. This discussion is based, in part at least, upon § 2491, Wigmore, Ev. 2d ed. which counsel also approves. As we read the section quoted from Wigmore in the Stumpf Case, it is not authority for the proposition that the introduction of direct evidence to negative the fact to be inferred or which the law authorizes to be presumed necessarily does away with the force of the evidentiary facts from which the inference is said to be warranted, or upon which the legal presumption is based. In other words, it is not authority for saying that evidence which has sufficient probative value to establish an ultimate fact necessarily becomes wholly impotent to prove the same fact when viewed in the light of other evidence from the adversary to disprove such ultimate fact. As we read the learned author he is commenting upon a fault in certain of the decisions which seem to treat the presumption as a makeweight adding force to a permissible inference after more direct evidence has been introduced by the adversary to negative *Page 760 the fact thus established prima facie. Wigmore says, "If the opponent does offer evidence to the contrary, the presumption disappears as a rule of law" — (that is, the jury is no longer compelled to presume the existence of the fact to be inferred — emphasis, too, is ours) — "and the case is in the jury's handsfree from any rule. . . . It is therefore a fallacy to attribute (as do some judges) an artificial probative force to a presumption, increasing" — (not decreasing) — "for the jury the weight of the facts, even when the opponent has come forward with some evidence to the contrary. For example, if death be the issue, and the fact of absence for seven years unheard from be conceded, but the opponent offers evidence that the absentee, before leaving, proclaimed his intention of staying away for ten years, until a prosecution for crime was barred, this satisfies the opponent's duty of producing evidence, removing the rule of law;" (that is, the presumption) "and when the case goes to the jury, they are at liberty to give any probative force they think fit to the fact of absence for seven years unheard from. It is not weighed down with any artificial additional probative effect; they may estimate it for just such intrinsic effect as it seems to have under all the circumstances."
In a note to the above section, Wigmore quotes with apparent approval from Graves v. Colwell, 90 Ill. 612, at page 616, as to the effect of contrary evidence. The Illinois court said:
"It has been said, that presumptions of law derive their force from jurisprudence and not from logic, and that such presumptions are arbitrary in their application. This is true of irrebuttable presumptions, and, primarily, of such as are rebuttable. It is true of the latter until the presumption has been overcome by proofs, and the burden shifted; but when this has been done, then the conflicting evidence on the question of fact is to be weighed and the verdict rendered, in civil cases, in favor of the party whose proofs have most weight, and in this latter process the presumption of law loses all that it had of mere arbitrary power, and must necessarily be regarded only from the standpoint of logic and reason, and valued and given effect only as it has evidential character. Primarily, the rebuttable legal presumption affects only the burden of proof, but if that burden is shifted back upon the party from whom it first lifted it, then the presumption is of value only as it has probative force, except it be that on the entire case the evidence *Page 761 is equally balanced, in which event the arbitrary power of the presumption of law would settle the issue in favor of the proponent of the presumption." See Jones, Ev. 2d ed. § 366.
Wigmore (§ 2491, note 6, supra), criticizes the opinion in Stack v. General Baking Co. 283 Mo. 396, 223 S.W. 89, going to the other extreme, for its holding that when the presumptive circumstance appears and opposing evidence is offered, even the presumptive circumstance cannot go to the jury because the presumption is not evidence.
Chamberlayne, in the Modern Law of Evidence, vol. 2, § 1085, expresses the same thought as follows:
"When conflicting evidence is introduced upon the point covered by the presumption of law, the presumption itself, the rule of law, is functus officio. It has done its work. The entire inquiry is now one of logic, as to inferences of fact. As the supreme court of Missouri say: — `Presumptions serve a most useful and indispensable part in the correct decision of many questions, but they are out of place, when the facts are known, or are admitted.' The presumption of law, as a rule of substantive law, is equally binding upon the jury. It constitutes, in the substantive law what may be deemed a prima facie right. The jury can no more neglect it than they could fail to give effect to any other rule of law. When, however, the conflicting evidence upon which the jury might reasonably act has been admitted, the entire question of weight becomes a question for the jury. The presumption of law has disappeared, as such. The judge is no longer entitled to rule that the inference of fact upon which it is based has a prima facie value. To do so, would be to comment upon the weight of conflicting evidence which is, in a majority of American jurisdictions, expressly forbidden."
Note 10 of the same authority reads as follows:
"Any inference of fact previously assumed as prima facie correct by the presumption of law continues to exert its full logical effect."
It is certainly illogical to say that that which in one stage of the trial is evidence of a fact sufficient to take the case to the jury must cease to be regarded as any evidence of the same fact when the adversary, even with superior knowledge, says the fact is otherwise. See Morris v. Minneapolis, St. P. S. Ste. M.R. Co. 25 N.D. 136, 141 N.W. 204. This is not to say that the grounds for the inference may *Page 762 not be rendered so weak by the more direct and convincing evidence coming from the adversary that the presumptive circumstance can no longer be regarded as substantially supporting a verdict. But this, in our opinion, is not such a case. In the instant case, as pointed out above, there are circumstances pointing to the authority of Melhouse which are not negatived by the defendant's evidence.
We adhere to the view that a verdict for the plaintiff would have been supported by substantial evidence, so far as the use of the car being within the scope of the employment is concerned, and that it was error to instruct definitely that it was not being so used during a part of the trip described by Melhouse.
We do not deem it necessary to add anything to what has been said concerning the sufficiency of the evidence on the question of negligence, nor to enlarge upon the discussion going to show that the plaintiff was not guilty of contributory negligence as a matter of law. The petition contains much argument in support of the instructions as given on the question of contributory negligence. We adhere to the view that under the charge given the jury might well have set up an entirely erroneous standard by which to judge the conduct of the parties; also, that under facts, such as the evidence in this case tends to prove, it is especially important that an instruction on contributory negligence be such as to enable the jury to distinguish between a precedent or remote cause and a proximate or direct cause. We adhere to the view that an instruction is bad which tells the jury in so many words that the plaintiff cannot recover if his negligence had anything to do with bringing about his injury — later amplified, at the request of a confused jury, with the statement that the plaintiff could not recover if his carelessness or neglect had brought about or helped in some way to bring about his injury. It is true that there was no request for an instruction on proximate cause, but the failure to make a request does not take away one's right to except to an erroneous or misleading charge. Where the court undertakes to instruct the jury on the law applicable to the case, it is its duty to give correct instructions as far as they go. If the law is misstated in a material point to the prejudice of a party to the suit, it is error. 38 Cyc. 1691. It should be apparent that we do not hold the instruction to be bad because the term "proximate" was not used. The *Page 763 same thought could readily be conveyed to the jury in language that is more easily understood.
We have reconsidered those points in the original opinion, upon which the decision is based, in the light of the petition for rehearing, and our views are not altered. Some minor questions are raised in the petition which are in no way vital to the decision and which may not arise upon another trial. Hence, there is no occasion to mention them here.
The petition for rehearing is denied.
BURR, NUESSLE, and CHRISTIANSON, JJ., concur.
BURKE, Ch. J. I concur in the result.