(dissenting) — While I believe the verdict and judgment in this case are unjust, not supported by the greater weight of the evidence, but in fact against it, and ought to be set aside on that account, because I believe the trial court abused its sound judicial discretion in not granting a new trial on that ground, yet I am clearly of the opinion that after the plaintiff has made out his prima-facie case which is conceded in this case as I understand the majority opinion, the court cannot sustain a demurrer to the plaintiff’s evidence, or otherwise take the case from the jury on account of evidence subsequently introduced by the defendant; and for that reason I am of the opinion that my learned associate in so far as he holds that plaintiff’s primafacie case was completely overcome and destroyed by *243the evidence subsequently introduced by the defendant, and for that reason the demurrer to plaintiff’s case should have been sustained, is in error.
In discussing this question, this court, in the case of Peterson v. Chicago & Alton Ry. Co., 265 Mo. 462, l. c. 479, said:
“The second proposition presented is: Was the plaintiff under the facts disclosed by the evidence guilty of such contributory negligence that the court should have declared, as a matter of law, that he could not recover 1 The question of contributory negligence, as a rule, is a matter of defense which must be pleaded and proven by the defendant.
“As held in paragraph one of this opinion, the plaintiff having made out a prima-facie case, then according to the rule just announced the burden rested upon the defendant to disprove and overcome that case, to the satisfaction of the jury. That, of course, means that the jury and not the court must, pass upon the credibility of the witnesses and the weight to be given to their testimony. That is, after a prima-facie case has once been made out, the case can never be taken from the jury. [Boone v. Railroad, 20 Mo. App. 232; Kenney v. Railway, 80 Mo. 573; Gregory v. Chambers, 78 Mo. 298-9; Cannon v. Moore, 17 Mo. App. 102; Gibson v. Zimmerman, 27 Mo. App. 90; Milliken v. Comm. Co., 202 Mo. 637; Rinehart v. Railway, 204 Mo. 276; Vincent v. Means, 184 Mo. 340-341; Bryan v. Wear, 4 Mo. 106; Vaulx v. Campbell, 8 Mo. 224; Wolff v. Campbell, 110 Mo. 114; Randle v. Railway, 65 Mo. 334; McAfee v. Ryan, 11 Mo. 364; Steamboat City of Memphis v. Matthews, 28 Mo. 248; Bradford v. Rudolph, 45 Mo. 426; Wood v. Railway, 181 Mo. 445; Hipsley v. Railway, 88 Mo. 352; Meyers v. Trust Co., 82 Mo. 240; Dalton v. Poplar Bluff, 173 Mo. 47; Mineral Land Co. v. Ross, 135 Mo. 101; Huston v. Tyler, 140 Mo. 252; Gordon v. Burris, 141 Mo. 602; Cornwell v. Wulff, 148 Mo. 542; Seehorn v. Bank, 148 Mo. 265; Weinberg v. Street Ry. Co., 139 Mo. 290; Seawell v. Railroad, 119 Mo. 222; Schroeder *244v. Railroad, 108 Mo. 322; Seligman v. Rogers, 113 Mo. 649.]”
I venture the assertion that the eases cited in support of the rule announced in that case do not constitute one-tenth of the cases in this State announcing the same doctriné; and notwithstanding this well-established rule, the majority opinion in this casé brushes it aside and emasculates it with a single breath.
While it is true the doctrine announced in the majority opinion is supported by Berry on Law of Automobiles (2 Ed.), sec. 615, p. 694, yet it appears to me that his reasoning is more plausible than sound.
The rule as stated by the learned author is as follows:
“This presumption cannot stand in the face of positive proof of facts to the- contrary; and where the plaintiff has relied upon such presumption, and it has been opposed toy positive evidence to the contrary, he must then produce evidence tending to disprove the defendant’s positive testimony or his prima-facie case will fall. The presumption in question is rather a frail thing. It is unlike an inference that arises upon the proof of certain facts, and which is necessarily true if the facts are true. It rests upon the facts that the automobile was owned by the defendant and that the chauffeur who was operating it was in the general employment of the defendant; neither one nor both of which actually tends to prove that the chauffeur was engaged in the owner’s business.” (The italics are ours.)
A foreword: In order that I may not be misunderstood I desire to state that I understand the majority opinion to hold that if the positive evidence introduced by either the plaintiff or the defendant shows that the injury complained of was caused by an instrumentality disconnected from any negligence of the defendant, the presumption arising from the proof that the chauffeur was in the general employment of the defendant, and that he was operating the car at the time of the injury, constitutes prima-facie evidence that the former was acting within the scope of his employment at the *245time of the injury, is undermined and the prima-facie case of the plaintiff falls, and no case is made, and in that situation the plaintiff must fail unless he goes further and shows by specific evidence that the negligence of the defendant caused the injury.
Now, in so far as that rule applies to the plaintiff’s evidence, I have no special complaint to make, save that it is rather broadly stated, not excluding certain well known exceptions thereto, but I deny the rule is sound when applied to the evidence of the defendant, as I will now try to show. But before doing so, it seems to me the author attributes undue significance to the words “positive proof,” “positive testimony,” “specific eVidence,” etc., for the obvious reason that the jury must pass upon the evidence, whether it is positive, specific, direct or inferential.
Returning to the question in hand: The vice of the rule stated by Mr. Berry is indicated by the italicized words. In- substap.ce they declare the law to be that, notwithstanding the fact that plaintiff has made out his prima-facie case, yet if the defendant introduces “positive evidence” to the contrary, then the plaintiff cannot recover, without he introduces “evidence (in rebuttal) tending to disprove the defendant’s positive testimony.” In other words, the rule announces the astounding doctrine in that after the plaintiff has made out a primafacie case, it then becomes the duty of the court, if the defendant introduces evidence tending to show' that the injury was . caused by some independent agency over which he had no control, thereby disproving the plaintiff’s prima-facie case, to declare as a matter of law the plaintiff could not recover without he introduces evidence in rebuttal tending to contradict the evidence so introduced by the defendant.
Stripped of all useless and confusing verbiage, that is the true rationale of the rule announced by Mr. Berry and followed in the majority opinion; and I submit, if. sound, by the same rule of reason when the. plaintiff introduces his evidence in rebuttal contradicting that of the defendant, then the court should instruct the jury to *246find for the former, without the latter should introduce additional evidence tending to disprove that introduced by the plaintiff in rebuttal,. and if logically followed to the end, the trial of the cause would thus go on to the end of time, without one of the parties should become weary and quit the fight; and even in that event, the court and not the jury would find the facts. Such is not the law.
As previously stated, the law is that where the plaintiff makes out a prima-facie case against the defendant, although the defendant may introduce evidence which entirely overthrows and disproves the prima-facie case so made, yet the trial court cannot say, as a matter of law, that it is so overthrown and direct a verdict for the defendant. [See cases cited.]
This rests upon the constitutional right to a trial of all such causes by a jury, whose exclusive province it is to pass upon the credibility of the witnesses produced by the defendant, as well as by the plaintiff, and the weight and value to be given to their testimony. Under the rule announced in the majority opinion, the court passes upon the credibility of the witnesses introduced by the defendant and the weight to be given to their testimony, and declares whether or not the prima-facie case has been overcome, while the jury passes upon the credibility of those introduced by the plaintiff and the weight to be given to their testimony. I repeat that is not the law; what is sauce for the goose is sauce for the gander.
Moreover, to make my assault upon Mr. Berry’s rule perfectly plain and unanswerable, as it seems to me: Suppose that the only evidence that had been introduced by the plaintiff in this case had been to the effect that Plettenbaugh, the chauffeur, was in the general employment of Holmes, the defendant, to operate the car in question, and that while so operating it he ran the same against the plaintiff and injured ’him; this, the majority opinion holds, and all concede, would have made out a prima-facie, case for the plaintiff, and had the defendant introduced no evidence in defense, the trial *247court, under the authorities before cited, would have been required to have submitted the case to the jury on that evidence alone, and had the jury found for plaintiff, that evidence would have been sufficient to have' supported the verdict; this, no one will deny. But the dispute arises over the following supposition I am about to state, namely: Suppose the defendant, instead of having declined to introduce any evidence in the case, as previously supposed, had in fact offered. Hettenbaugh, the chauffeur, as a‘ witness, and that he had testified that he was not pursuing his master’s orders at the time he struck and injured the plaintiff, but was out on a. drunken joy-ride, as suggested by the majority opinion ; and suppose further, that as a matter of fact, that evidence of Hettenbaugh was not only not true, but was deliberate perjury, which' all must concede might be possible, then how would the case stand? Would that testimony, though absolutely false, be sufficient, as a matter of law, to completely overcome and destroy the plaintiff’s prima-facie case? I think not; at least, under our rules of practice, which are based upon the constitutional right to a trial by jury, the jury at least should be permitted to find whether or not said testimony was true or false, and the court should not, and is not authorized to declare as a matter of law that perjured testimony in a trial before a jury is sufficient to destroy plaintiff’s prima-facie ease. If this is not true, and the court is clothed with such authority, then perjury might stand at a premium in the jurisprudence of this State, for we have previously shown that if defendant had not introduced any evidence at all, the prima-facie case made by him would have been sufficient to have supported the verdict; but under the second supposition mentioned, the perjured testimony would, as a matter of law, have utterly destroyed that case.
To my mind the rule announced by Mr. Berry is predicated upon sophistry and not-reason or authority.
I therefore dissent from the majority opinion and am of the opinion that the judgment should be reversed and the cause remanded for another trial for the reasons before stated.