dissenting, on denial of petition for rehearing:
The Court’s action today is truly unusual and unprecedented. On July 16, 1987, we issued an opinion affirming in part and reversing in part and remanding for a new trial in this matter. On August 5, 1987, the respondent Harvey, et al., petitioned for rehearing and, on August 19, 1987, filed a brief in support thereof. On November 12, 1987, the appellant F-B Truck Line filed a brief in response to the petition for rehearing and on November 27, 1987, the respondent filed a reply brief to that brief.
At that time if the Court determined that its prior opinion was incorrect, the appropriate procedure was to grant the petition for rehearing and set the matter down for reargument so that the parties could specifically address the issues which divided the Court in our original opinion. However, the Court today, without citing any authority or rule to support its action, takes the unprecedented step of denying the petition for rehearing, but issuing a new opinion in which it reverses itself and adopts the “views of Chief Justice Shepard as expressed in his dissent.” Because this new *422“opinion” is as erroneous as it is unprecedented, I dissent.
In keeping with its unusual procedure, and no doubt to the confusion of the litigants and the bar, the Court leaves its original opinion in place, together with the earlier dissenting opinion of Chief Justice Shepard. A brief summary of the Court’s earlier opinion is necessary to understand the egregious error which it commits today. This was an action by Leonard Harvey, et al., against F-B Truck Line resulting from an automobile accident in which the plaintiffs collided with a truck and trailer operated by one Charles MacGuinnis which was parked at a bar near Eagle, Idaho, with the trailer extending partially into the road right-of-way. The plaintiffs claim of liability against F-B Truck Line was based on two grounds: (1) that F-B was liable for MaeGuinnis’s negligence under the common law doctrine of responde-at superior, and (2) that F-B Truck Line was liable as a statutory employer under the regulations of the Interstate Commerce Commission (49 CFR 1057, 1058). The plaintiffs alleged that MacGuinnis, who had borrowed or rented the truck and trailer from two other persons, had trip-leased the equipment to F-B Truck Line in order to haul a load of lumber from Spokane, Washington, to Arizona. Trip-leasing was a method apparently approved by the Interstate Commerce Commission whereby a truck line with authority from the ICC to transport products from Spokane to Arizona would lease the equipment owned and operated by another, thereby permitting that person to come under the ICC authority of F-B Truck Line so that the owner-operator (MacGuinnis) could haul the merchandise from Spokane, Washington, to Phoenix, Arizona, and be compensated therefor. The testimony reflected that MacGuinnis, in order to perform this hauling from Spokane to Arizona, had borrowed or rented the tractor owned by Tom Hanson, and on the day in question had also arranged to borrow a 1966 “Beale” trailer from Ray Montgomery. MacGuin-nis testified that he made the arrangements with Montgomery at about noon on the day in question and that he took the tractor-trailer unit to the Stinker Station in Caldwell where F-B Truck Line had an agent who arranged trip-leases, and there he executed a trip-lease of the truck and trailer to F-B Truck Line so that he would have ICC authority to transport the load of freight from Spokane, Washington, to Arizona. However, later that afternoon, the order for the load to be shipped from Spokane to Arizona was cancelled, and MacGu-innis was returning the truck and trailer to Hanson’s place when he decided to stop at the Double Eagle Tavern near Eagle, Idaho. While MacGuinnis was stopped at the tavern, the plaintiffs collided with the trailer, which was extended into the highway, causing the injuries for which plaintiffs filed this action.
As this Court’s original July 16, 1987, opinion accurately points out, the trial court, in a pretrial summary judgment motion, “determined that F-B could not be held liable under the common law doctrine of respondeat superior,” because at the time of MaeGuinnis’s side trip to the Double Eagle Tavern he was not serving any business interest of F-B Truck Line Company. The trial court expressly found that “the evidence is uncontradicted that MaeGuinnis’s contemplated trip to Spokane was aborted because he was advised en route that the load had been cancelled.” MacGuinnis was returning the truck to Hanson’s place (the person from whom he borrowed the tractor) when the trial court found that he took a “short detour to the Double Eagle Tavern where the accident occurred.” The trial court expressly found that MaeGuinnis’s side trip to the Double Eagle Tavern did not serve any business interest of F-B Truck Line Co., and therefore there was no respondeat superior liability. Thus, the sole basis for any claim of liability on the part of F-B was pursuant to the trip-lease and the ICC regulations.
It was the plaintiffs’ burden to prove that the trailer involved in the accident had been trip-leased to F-B Truck Line in order to hold F-B Truck Line responsible. The trial court relied on the ICC regulation (49 CFR 1057.12(c)) which provided that the lessee (F-B Truck Line) in such a trip-lease *423remained liable for a period of 30 days after execution of the lease. However, as the district court had ruled early on in the case, under 49 CFR 1057.2(b), the truck and trailer had to be treated as a unit at all times, and if the trailer which had been leased had been removed and another trailer attached to the tractor, it would not constitute the “equipment” within the meaning of the federal regulations, and thus no 30-day liability would attach. Any other combination of equipment would not have been the “leased equipment” referred to in the ICC regulations. Furthermore, the district judge also made the practical conclusion that “it was obvious that F-B could not haul its load of freight from Spokane to Phoenix with a tractor alone, and whatever acquisition of equipment was made on behalf of F-B on March 28, 1980, was a tractor and a trailer as a unit.” Therefore, as the trial court acknowledged, plaintiffs had the burden of proving that the trailer involved in the accident was in fact the trailer which had been leased to F-B Truck Line by Barnes at 3:00 p.m. at the Stinker Station.
However, the trip-lease which was negotiated and signed by MacGuinnis and by James Barnes for F-B Truck Line, was not for Montgomery’s 1966 Beale trailer which was involved in the accident, but was for a 1977 Trailmobile. The evidence in the record contains the testimony of both Barnes and MacGuinnis, describing how they negotiated and executed the trip-lease, Plaintiffs Exhibit 13. The trip-lease was signed by both Barnes and MacGuinnis, and describes the trailer as a 1977 Trailmo-bile. In addition, the trip-lease required a safety inspection to be made on both the tractor and the trailer, with eighteen specific items to be inspected on the tractor, and eight items to be inspected on the trailer, such as the trailer brakes, tires, lights, etc., before the trip-lease was accepted by F-B Truck Line. Both Barnes and MacGuinnis testified that Barnes conducted the inspection on both the tractor and the trailer, and each of the 18 items on the tractor and the eight items on the trailer were checked by Barnes as approved for safety compliance. When asked where he obtained the information for the description of make and model of the tractor and trailer, Barnes stated, “Most likely from the registration or the lease from the leasing company.”
In view of the direct testimony of both Barnes and MacGuinnis concerning the procedure in inspecting and trip-leasing the truck and trailer, and the trip-lease itself, signed by both Barnes and MacGuinnis, which describes a 1977 Trailmobile trailer, rather than the 1966 Beale trailer involved in the accident, the plaintiffs had the rather large burden of proof at trial to convince a jury that Barnes’s testimony, and the trip-lease, Exhibit 13, were incorrect and that the trailer which had been presented at the Stinker Station at 3:00 p.m. on the day in question was in fact the 1966 Beale trailer which was involved in the accident, as MacGuinnis testified at trial. To attempt to meet that burden the plaintiffs called as a witness Ray Montgomery, the owner of the 1966 Beale trailer. He testified that on the same day as the accident he rented the 1966 Beale trailer that was involved in the accident to MacGuinnis for a week. Prior to that time he had not known MacGuinnis. He testified that MacGuinnis came to his shop shortly after noon to make the arrangements for the lease. However, nowhere in his brief testimony does he describe where the trailer was actually located, or when MacGuinnis actually picked it up.
This was a classical case of a jury having to determine the credibility of witnesses. The jury had to decide whether to believe MacGuinnis, or whether to believe Barnes and the trip-lease, Exhibit 13. The trial court recognized this, stating, “I am cognizant of the fact that impeachment evidence was introduced as to both James Barnes and Charles MacGuinnis. Therefore, the jury could have elected to disbelieve either or both of those witnesses....”1 The *424court then acknowledged that “the jury to a large extent found the testimony of James Barnes to be credible.” The jury specifically found in favor of Barnes and F-B Truck Line in answering Special Interrogatory Question No. 3 in which the jury found that James Barnes had not acquired the use of the truck and trailer operated by Charles MacGuinnis at the time of the accident for F-B Truck Line. [The jury’s special verdict is attached as an appendix.] As this Court’s original opinion of July 16, 1987, points out, the jury in response to Questions 1 and 2 had found that James Barnes was the agent for F-B Truck Line and did have authority to acquire equipment under lease from another to transport property under F-B’s ICC permit. Thus, the jury, by finding that Barnes had authority to trip-lease, but had not “acquire[d] the use for F-B Truck Line ... of the truck and trailer operated by Charles MacGuinnis at the time of the accident,” resolved the credibility issue against MacGuinnis and in favor of Barnes, as the trial court acknowledged.
Our earlier July 16, 1987, opinion pointed out how the trial court misconstrued the standard for ruling upon a motion for judgment notwithstanding the verdict. As we stated in that opinion, the trial court was “without the benefit of our most recent thinking on the subject[, s]ee Quick v. Crane, 111 Idaho 759, 727 P.2d 1187 (1986), [and] did precisely that which Quick forbids; he weighed the evidence and the credibility of the witnesses.” Even though the trial court recognized “that the jury may have had legitimate questions about the general level of credibility of MacGuinnis’ testimony,” and that “the jury to a large extent found the testimony of James Barnes to be credible,” the trial court nevertheless proceeded to draw its own inferences from the evidence, and also proceeded with an analysis which effectively shifted the burden of proof to the defendant. The trial court stated:
“The evidence is ... uncontradicted that the lease transaction between Barnes and MacGuinnis took place later that day at around 3:00 p.m. at the Stinker Station. This is the time that Barnes identified the trailer as a 1977 Trailmobile on Exhibit 13. If the trailer MacGuinnis presented at the Stinker Station was not the Montgomery trailer, the conclusion is inescapable that MacGuinnis had switched trailers between noon when he picked up Montgomery’s trailer, and 3:00 p.m. on March 28, 1980, when he appeared at the Stinker Station. The evidence is also uncontradicted that at approximately 7:30 p.m. of that same day, when the accident occurred, MacGuinnis again had Montgomery’s trailer. If this was not the same trailer presented at the Stinker Station, the further conclusion is inescapable that MacGuinnis had again switched trailers between 3:00 p.m. and 7:30 p.m. by dropping the trailer he presented at the Stinker Station and again picking up the Montgomery trailer. The record is totally silent as to why the supposed two switches were made, when they were made, where they were made, or where the phantom Trailmobile trailer came from or what happened to it. It seemingly appeared at the Stinker Station from nowhere and thereafter disappeared, never to be seen again so far as this trial record is concerned.”
Concluding that “the different descriptions of the trailer by Barnes and Montgomery did not, standing alone, compel the conclusion that different trailers were involved and that MacGuinnis would have needed a motive and a means of accomplishing the ‘double-switch,’ ” the trial court made its own finding that:
“MacGuinnis traced his actions from the time he picked up the Montgomery trailer to the time of the accident and no switching of trailers was involved in that testimony. Even recognizing that the jury may have had legitimate questions about the general level of credibility of MacGuinnis’ testimony, there is nothing in the record to suggest any motive to switch trailers or to fabricate this part of his testimony.
“From the evidence just summarized it is clear that the conclusion that MacGuinnis switched trailers twice between noon and 7:30 p.m. on the day of the accident must *425rest on the slender thread of an uncorroborated assumption that a means of accurate identification of the make of trailer was available to both Barnes,and Montgomery and that each had the ability by that means to identify accurately the make of the trailer, plus pure speculation as to the circumstances and reason for the switching. A finding much more consistent with the total evidentiary record is that Barnes was simply mistaken in his identification of the make of the trailer. Hence, I conclude that the jury’s finding in answer to Question No. 3 is not supported by substantial evidence and in fact is contrary to the great weight of the evidence. I find that the great weight of the evidence supports an affirmative answer to Question No. 3.” (Emphasis added.)
While a motive for switching the trailers was fairly apparent, i.e., the Montgomery 1966 Beale trailer might not have met the 8-point safety check required for an F-B Truck Line trip-lease, whereas the 1977 Trailmobile would have, it was not the defendant’s burden to prove either a motive for the switching of the trailers or the fact that the trailers were switched at all. It was the plaintiffs’ burden to prove that the 1977 Trailmobile trailer which Barnes testified he trip-leased, and which Exhibit 13 showed was trip-leased, was in fact the same trailer as the 1966 Beale trailer which was involved in the accident. The jury apparently had the same doubts about the credibility of MacGuinnis as did the trial court who stated “that the jury may have had legitimate questions about the general level of credibility of MacGuinnis’ testimo-ny_” MacGuinnis had, after all, furnished whatever documents that Barnes used in making out the trip-lease, Exhibit 13, and had signed the lease, describing the trailer as a 1977 Trailmobile. His later testimony conflicts with his earlier action in signing the lease. The jury resolved that credibility dispute in favor of Barnes and against MacGuinnis.
Nevertheless, the trial court invaded the jury’s factfinding function by concluding that “a finding much more consistent with the total evidentiary record is that Barnes was simply mistaken in his identification of the make of the trailer.” However, both Barnes and MacGuinnis would have had to be mistaken at that time, not just Barnes. They both negotiated and signed the lease. In any event, as our earlier opinion pointed out, in so finding the trial court “did precisely that which Quick forbids; he weighed the evidence and the credibility of the witnesses.” Ante at 416, 767 P.2d at 259.
The Court today, in this unprecedented proceeding, erroneously adopts the conclusion of the dissenting opinion to our original opinion issued July 16,1987, which concluded that “there [being] no direct evidence that MacGuinnis switched trailers,” the jury’s verdict rests on “ ‘the slender thread of an uncorroborated assumption,’ ” and is “not supported by substantial evidence as set forth in Mann v. Safeway, supra, and its progeny.” Ante at 421, 767 P.2d at 264. However, to reiterate, it was not the defendant’s burden to prove that the trailers were switched, or to prove a motive for the switching. Rather, the plaintiffs had the burden to prove that the trailer involved in the accident was the same trailer presented for trip-leasing at 3:00 p.m. the afternoon of the accident. The eye witness testimony of James Barnes who leased the trailer from MacGu-innis, and the trip-lease, Exhibit 13, which was signed by both Barnes and MacGuinnis and which describes the trailer inspected and trip-leased as a 1977 Trailmobile, was substantial evidence to support the jury’s finding that the trailer involved in the accident had not been trip-leased to F-B Truck Line.
Today the Court holds that the testimony of a credible eye witness, together with a written trip-lease signed by both that witness and the prime witness for the plaintiffs, MacGuinnis, describing the trailer inspected and trip-leased by F-B Truck Line as a 1977 Trailmobile, is not sufficient evidence to support a jury verdict that F-B had not leased the 1966 Beale trailer involved in the accident. As the result of today’s decision, the right to trial by jury, which has been only recently described by this Court as “an extremely valuable one guarded jealously by this Court,” Akers v.
*426Koubourlis, 115 Idaho 889, 771 P.2d 907, (1988) has been stripped of much of its meaning.
APPENDIX
In the District Court of the Fourth Judicial District of the State of Idaho, In and For the County of Ada
Case No. 72599
Filed Feb. 7, 1985
Leonard Harvey, et ux. & Donald Wells, et ux., Plaintiffs, v. Charles MacGuinnis & F-B Truck Line Company, Defendants.
SPECIAL VERDICT
We, the jury, answer the questions submitted to us in the special verdict as follows:
QUESTION NO. 1: Was James Barnes an agent of F-B Truck Line Company on March 28, 1980?
ANSWER YES_X_ NO_
If you answered Question No. 1 “yes”, then answer Question No. 2.
QUESTION NO. 2: Was it within the scope of James Barnes’ authority as an agent of F-B Truck Line Company to acquire the use of motor transportation equipment owned by another to transport property under F-B’s I.C.C. permit and to engage the person from whom the equipment was acquired to operate such equipment for F-B?
ANSWER YES X NO
If you answered Question No. 2 yes , then answer Question No. 3.
QUESTION NO. 3: Did James Barnes before the accident on March 28, 1980, acquire the use, for F-B Truck Line Company in transporting property under F-B’s LC.C. permit, of the truck and trailer operated by Charles MacGuinnis at the time of the accident and engage Charles MacGuinnis to operate such equipment for F-B?
ANSWER YES NO X
If you answered Question No. 3 “yes”, then answer Question No. 4.
QUESTION NO. 4: Did the acts of Charles MacGuinnis, in driving to the Double Eagle Tavern and while at the tavern just before the collision between the truck and trailer he was operating and the automobile in which plaintiffs were riding, serve any business interest of F-B Truck Line Company?
ANSWER YES_ NO_
DATED This 7tb day of February 1985.
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. It was established at trial that MacGuinnis had felony convictions for fraudulent checks. His pretrial deposition, taken shortly before trial, was conducted at the Idaho State Penitentiary where he was incarcerated on three check charges.