specially concurring.
I agree that reversal is warranted because the Commission wrongly saddled Brinkley with the burden of proof. As the majority opinion makes clear, Basin Land, as claimant, has the affirmative burden of establishing that Brinkley’s injury arose out of his employment with Basin Land. Of great importance is Brinkley’s act at the time of the accident. Beebe v. Horton, 77 Idaho 388, 391, 293 P.2d 661, 662-63 (1956). Consequently, if the evidence fails to establish that Brinkley’s injury is clearly identifiable with Basin Land at the time of the accident, it would follow that Basin Land has failed to carry its burden as a matter of law.
The record does not support a finding that Brinkley was working for Basin Land. This notion is buttressed by the fact that Hat Butte has already admitted that Brinkley was operating in the course of employment with Hat Butte at the time of the accident. Brinkley also received worker’s compensation benefits through Hat Butte. More important, the Commission has already found that at the time of the accident, Brinkley was “bound for a location on the Hat Butte system,” which had nothing to do with Basin Land.
The Pierstorff rule, Pierstorff v. Gray’s Auto Body Shop, 58 Idaho 438, 74 P.2d 171 (1937) was heavily relied on as recently as in Dinneen v. Finch, 100 Idaho 620, 626-27, 603 P.2d 575 (1979). The ease in which the rule arose was a workman’s compensation case, as is this case now under our review. Accordingly, it is deemed appropriate to remind the Commission of the rule as set out in Dinneen:
However, the evidence here was not conflicting, and another well established rule governs this situation:
‘The rule applicable to all witnesses, whether parties or interested in the event of an action, is, that either a board, court, or jury must accept as true the positive, uncontradicted testimony of a credible witness, unless his testimony is inherently improbable, or rendered so by facts and circumstances disclosed at the hearing or trial. Manley v. Harvey Lumber Co., 175 Minn. 489, 221 N.W. 913, 914. In Jeffrey v. Trouse, 100 Mont. 538, 50 Pac.2d 872, 874, it is held that neither the trial court nor a jury may arbitrarily or capriciously disregard the testimony of a witness unimpeached by any of the modes known to the law, if such testimony does not exceed probability. And, in Arundel v. Turk, 16 Cal.App.2d 293, 60 Pac.2d 486, 487, 488, the rule is stated thus: “Testimony which is inherently improbable may be disregarded, * * * but to warrant such action there must exist either a physical impossibility of the evidence being true, or its falsity must be apparent, without any resort to inferences or deductions.” ’ Dinneen v. Finch, 100 Idaho 620, 626-27, 603 P.2d 575, 581-82 (1979).
The Pierstorff opinion also contained another passage with a message of advice to the Commission:
And in the case of Adams v. Bunker Hill etc. Min. Co. (on rehearing), 12 Ida. 637, 89 Pac. 624, 628, 11 L.R.A., (N.S.) 844, this court said: ‘There are very few *126things in human affairs, and especially in litigation involving damages, that can be established to such an absolute certainty as to exclude the possibility, or even some probability, that another cause or reason may have been the true cause or reason for the damage rather than the one alleged by the plaintiff. But such possibility, or even probability, is not to be allowed to defeat the right of recovery where the plaintiff has presented to the jury sufficient facts and circumstances surrounding the occurrence as to justify a reasonable juror in concluding that the thing charged was the prime and moving cause.’ Pierstorff v. Gray’s Auto Shop, 58 Idaho 438, 443-44, 74 P.2d 171, 173 (1937) (emphasis supplied).
In concluding my thoughts, I suggest that it only has to be kept in mind that although Basin Land had the right to control Brinkley, that is not the equivalent of being in the exercise of that right at the time pertinent.