(dissenting).
I dissent because in my opinion the majority decision is the result of an unauthorized invasion of the fact-finding power of the trial court.
Proof of appellee’s ownership of the automobile constituted prima facie evidence that Day was operating the automobile at the time of the collision with the consent of appellee. This prima facie evidence, or statutory presumption as it was termed in Rosenberg v. Murray, 73 App.D.C. 67, 116 F.2d 552, imposed on appellee the affirmative duty of proving that the car was not at the time of the accident operated with his express or implied consent. Rosenberg v. Murray, supra. Had appellee offered no evidence, appellant would have been entitled to a recovery as a matter of law, since negligence of the operator of the car was not disputed. Hiscox v. Jackson, 75 U.S. App.D.C. 293, 127 F.2d 160. But ap-pellee did offer evidence that Day’s authority was restricted to driving the car from the parking lot to appellee’s place of business; and the effect of this was that Day had no authority to drive the car at Tenth and K Streets, for it is not claimed that either necessity or judgment required driving north on Tenth Street at its intersection with K Street in making delivery of the car. Whether this evidence was sufficient to overcome the statutory presumption was a matter of fact for the trial judge who sat as both judge and jury. Hiscox v. Jackson, supra. And the trial judge found, as a “factual finding,” that “at the time of said accident said James T. Day was operating said Chevrolet automo*249bile without either the express or implied consent or authority of said defendant Rothberg.” That finding of fact, I think, is binding on this court, and eliminates from further consideration the statutory presumption.
The majority opinion, however, says we must go further and consider the fact that Day had authority to make delivery and that the collision occurred only four blocks north of the usual route, and from these facts, plus the time of the accident, “the presumption is that he did take it at a proper time and for the authorized purpose and that he had proceeded on his usual route before driving north to K Street.” Herein, I think, is the erroneous basis of the majority opinion. What is the source of such presumption? A presumption is a rule of law compelling a specified conclusion in the absence of evidence to the contrary. What law compels the conclusion drawn by the majority? Not the statutory presumption, for it is limited to a presumption o-f consent of the owner at the time of the accident. It does not create a presumption of when the driver took possession of the car or the route followed by him prior to the accident. It must be remembered that the statutory presumption would have arisen if the accident had occurred at the extreme limits of the District —many miles away from either the parking lot or appellee’s place of business — and had occurred at noon or midnight — many hours before or after time for making delivery. Surely in such a case no one would hold that the statutory presumption of consent at the time of the accident includes a presumption of the time the car was taken, why it was taken or the route which it had previously traveled. I think the majority confuses presumption with inference. From the developed facts in the case the trial court could have found, by inference, that Day took the car at a proper time for the purpose of making delivery, traveled his usual route to Tenth and F Streets and then deviated for a purpose of his own, intending ultimately to make delivery. “Inference is capable of bridging many gaps.” Galloway v. United States, 319 U.S. 372, 386, 63 S.Ct. 1077, 1085, 87 L.Ed. 1458. But inferences are matters of fact, not of law, and must be drawn by the jury or other fact-finding body — in this case, the trial judge. And the trial judge did not draw such an inference. If two contrary inferences are possible, it is not for this court to say which should be drawn.
“The fact that a contrary inference is possible from the evidence does not allow us to set aside the one drawn by the Board.” Virginia Electric & Power Co. v. National Labor Relations Board, 319 U.S. 533, 542, 543, 63 S.Ct. 1214, 1220, 87 L.Ed. 1568. “Where two different conclusions may reasonably be drawn from un-controverted evidence, the question as to which should be drawn is for the trial court and not for the appellate tribunal.” United States v. Ingalls, 72 App.D.C. 383, 386, 114 F.2d 839, 842. The majority would reverse the trial court because it did not draw the inference winch to the majority seems more reasonable.
There being no presumption as to when the car was taken, why it was taken or where it had been prior to the collision, I do not think this court can say, as a matter of law, that the trial court was unreasonable in finding that the evidence did not establish that Day removed the car from the lot for the purpose of directly or ultimately on that trip delivering the car to Rothberg. The only evidence to support a contrary finding was the time and place of the collision. Opposed to that was the fact that the collision occurred on Saturday and often on Saturday nights delivery would be made as late as 8:00 or 9:00 o’clock, the fact that while the accident occurred at Tenth and K Streets Day was evidently headed for a more distant place and his journey was cut short by the collision, and the fact that, in spite of all evidence to the contrary, Day for reasons known only to him denied that he was driving the car. The trial court was entitled to consider these facts and draw its own inference.
The discussion by the majority of the question of deviation is based on the assumption that the car was taken by Day for delivery to Rothberg, but since that assumption has neither evidence nor finding to support it, the question of deviation does not arise.
Finally, the majority, condemning any finding based on speculation, proceeds to speculate on whether Day intended to transact business of his own or was merely under the influence of Spring weather, Easter bonnets, etc. Neither this court nor the trial court is entitled to decide the case on speculation, but the trial court did have *250the right, as this court does not, to draw inferences and conclusions from the admitted facts, and I think the majority has invaded the province of the trier of facts, a thing which we have repeatedly held we cannot do.