dissenting: There are two reasons for my dissent; one is personal, — the desire that I may not be presumed, by acquiescence, to share in the views of the majority; the other is the hope that at some time and in some way we may bring our decisions more consistently in line with the modern rule applicable to this motor vehicle and trucking age.
*199There is no commendatory expression in the opinion of the rule adopted, — or as I might say in deference to the majority view of its derivation, the rule adhered to, — or the wisdom or propriety of applying it to eases of which the case at bar is typical, arising out of modern conditions of automobile traffic. -It merely invokes precedent. Perhaps the significance of many of tfye cases cited in the opinion will remain controversial, but whatever their import the rule deduced is too severely challenged by the changes which have taken place in comparatively recent years in the extent and pattern of automobile traffic, and the incidence of these two factors on accepted theories of legal proof in establishing the essentials of recovery for negligent injury to persons or property, to deny the propriety of readjustment.
As long as it was a neighborhood affair the plaintiff in such a suit might overcome the inconveniences of existing local rules of evidence, even to the proof of matters supposed to be within the peculiar knowledge of the defendant. A different picture is now presented. The vast nation-ivide increase in passenger and freight traffic by truck, the number of concerns engaged in it, and the scale of their operations throughout the country have multiplied public contacts, increased the probability of personal and property injury, and made more difficult the establishment of facts necessary to recovery.
I think, therefore, the right answer to the question presented to us on the appeal is to be found not so much in a review of our own cited cases for guidance as in constructive attention to rules of evidence which have been successfully applied in other jurisdictions without infraction of any fundamental principle of procedure, or imposing undue hardship on the litigant parties. We must face the fact that in matters of this kind rules of evidence grow out of our experience with the probative facts and the reliability of the inferences we commonly draw from them. The inferences that may be drawn from the possession and operation of another person’s bicycle or pleasure car, so often the object of loan or accommodation and suitable for private use, are certainly not those which may be drawn from the control and operation of a truck used commercially or in transportation of freight over a wide territory, through many states. For one thing, in the latter case the probability of the use of such a ear for a private purpose is vastly diminished; and on the principle of regularity we may assume the contrary,’ which is commonly true. The presumption is normal and natural.
The distinction is important and generally observed in cases where this rule is applied.
The majority rule, which is the rule contended for by the appellees and applied in the trial court, may be thus stated:
“Where the ownership of such a car is admitted or established and it is found to be in .the control of a person other than the owner, and *200being operated by sucb person, a presumption or inference arises that the person in charge is the employee and servant of the owner and acting within the scope of his employment.” As thus stated it has the support of an impressive weight of authority and well reasoned opinion throughout the country. Huddy, Automobile Law, Vol. 15-16, sec. 161, et seq.; 9 Blashfield (1941), Sec. 64, and cases cited; 42 A. L. R., Annotation 898; 74 A. L. R. (1931), 951-968; 96 A. L. R. (1935), 634-645; 1945 A. L. R. Supplement to Annotations, p. 159; Hartig v. American Ice Co., 290 Pa., 21, 137 Atl., 867; Silent Sales Corp. v. Station, 45 Fed. (2d), 471; Telarico v. Bickers Office Furniture Co., 298 Pa., 211, 149 Atl., 883; Mahan v. Steward Sand Co., 211 Mo. App., 256, 243 S. W., 407; Crowell v. Padolsky, 98 N. J. L., 552, 120 Atl., 23; Giblin v. Dudley Hardware Co., 44 R. I., 371, 117 Atl., 481; Enea v. Pfister, 180 Wis., 329, 192 N. W., 1018; Alhbern v. Griggs, 158 Minn., 11, 196 N. W., 652; Mahan v. Walker, 97 N. J. L., 304, 117 Atl., 609.
In a number of states, — for instance, New York, Massachusetts, Connecticut, Tennessee — it has been made a rule of evidence by statute. In most eases, including those cited supra, it is judicially recognized as based on sound inferences from the fact of ownership of the truck and its control and operation by a person other than the owner.
In Finney v. Frevel, 37 Atl. (2d), 923, 925 (1944), it is said:
“Ownership being thus established, a prima facie presumption arises that the operator of the vehicle was a servant and agent of the owner, Pa. R. R. Co. v. Lord, 159 Md., 518, 526, 151 Atl., 400; Gutheridge v. Gorsuch, supra, 177 Md., 109, 114, 115, 8 Atl. (2d), 885. A reasonable presumption also arises that the servant and agent was acting in the scope of his employment and upon the business of the master and this presumption exists until rebutted. Erdman v. Horkheimer Co., 169 Md., 204, 181 Atl., 221; Phipps v. Milligan, 174 Md., 438, 199 Atl., 498; Gutheridge v. Gorsuch, supra.”
In Frick v. Bickel (Ind. App. Ct., 1944), 54 N. E. (2d), 435, it is said:
“The rule is accepted in this state that where a plaintiff seeks to hold the owner of a car liable for injuries inflicted when the car was being operated by another, proof of the ownership makes out a prima facie case. This is on the theory that the fact of ownership justifies an inference or raises a presumption that the driver of the car is the agent of the owner and that he is driving it in pursuit of the owner’s business.”
In Enea v. Pfister, 180 Wis., 329, 192 N. W., 1018, 1019, it is said:
“We regard this as a just and reasonable rule. It is generally an easy matter to prove the ownership of a car that inflicts injury. The public records afford evidence of this fact. But the question of whether the car was at the time being operated in the prosecution of the defendant’s business is a matter peculiarly within the knowledge of the defendant, *201and one upon which it is at times exceedingly difficult for the plaintiff to obtain proof. The exigencies of justice require the application of such a rule, which we approve and adopt. Borger v. McKeith, 198 Wis., 315, 224 N. W., 102, 103 (1944).”
As I have stated, this rule has been adopted in several states by statutory enactment, and that suggestion is made here. The Court, however, is not in position to admit a non possumus. The supervision of adjective law is a part of its raison & etre-. It is purely a judicial question, involving rules of procedure and evidence, and should be settled in the simple manner applied in other jurisdictions, by leaving to the facts and circumstances of the case the inferences to which our common experience entitles them.
Moreover, the question before us is not moot. The contribution which courts make to sound jurisprudence is an incidental and abstract thing, a matter of slow accretion, often leaving much vicarious sacrifice and suffering in its wake. The most genuine and enduring contribution we can make to that end is to do justice in the particular case, while the right is still alive, on principles which are worthy to survive.
The plaintiffs have not contended that they have made out more than a prima facie case. The circumstances in evidence call for clarification by the defendant of facts peculiarly within its knowledge. It chose to risk an adverse verdict, and that result should not be disturbed.
Schenck and Devin, JJ., concur in dissent.