(dissenting). In my judgment the facts presented upon the second trial of this case in the record now before us were substantially and materially different on the question of whether or not the defendant’s driver was at the time of the accident within the scope of his employment. There being such a substantial difference in the facts in the two trials, I cannot concur with so much of the opinion as declares that the former opinion in this case upon the state of facts there presented is binding and conclusive upon the same question here presented.
I am authorized to state that Mr. Chief Justice Vinje concurs in this dissent.