dissenting.
I dissent because I am convinced that both the result reached by the majority and the reasoning adopted by it in reaching that result are contrary to the requirements of Article VII, § 3 of the Oregon Constitution and because the rules of law adopted by the majority seriously erode, if not undermine to the point of destruction, three long-established rules of fundamental importance:
1. The rule that in an automobile accident case *361■in which a car owned by the defendant was being driven by a third person, the plaintiff is entitled to the benefit of a possible inference by the jury that the driver of the other car was the owner’s agent and was acting within the scope of his employment, for the purpose of making a prima facie ease sufficient to go to the jury on that issue;
2. The rule that the credibility of a witness is ordinarily a question to be decided by the jury, rather than by the court;
3. The rule that on a motion for a directed verdict the court must assume the truth of all evidence favorable to the plaintiff and that such a motion must be denied unless the court can affirmatively say that there was no substantial evidence to support a jury verdict to the contrary.
Before discussing these matters it is necessary to focus upon the more particular issues to be decided on this appeal. According to the majority:
“* * * [t]he issue on appeal is whether there was any evidence other than the uncontradicted testimony of defendant’s witnesses from which the jury could have reasonably inferred that Lovely was acting as defendant’s servant at the time of the accident.” (Emphasis added)
Throughout its opinion the majoriy refers to the “uncontradicted testimony” of defendant’s witnesses. That, however, begs the most vital question to be decided in this case. As I see it, the questions to be decided are these:
1. Was the inference of agency from the fact that defendant’s truck was being driven by defendant’s employee “substantial evidence” for the pur*362poses of Article VII, § 3, under the facts of this case and, if not, was the inference overcome by “clear.and nneontradicted evidence”?
2. Was the testimony of defendant’s witnesses “clear and nneontradicted” to the extent that the credibility of such witnesses was not a question for the jury, but a question for decision by the court to the effect that the jury would have been bound by such testimony and had no right to disbelieve it?
3. Was there any “substantial evidence” from which the jury could find, either in corroboration of or independently from the inference of ownership, that defendant’s truck was being used for the business of the defendant at the time of the accident?
1. The prima facie inference of agency from the fact that a truck is being driven by an employee of its owner is not a “slender reed,” but has been recognised by this court to be a “just and wholesome rule” based on somid public policy and constitutes “substantial evidence.” In any event, that inference can only be overcome by “clear and uncontradicted evidence.”
The majority would characterize the prima facie inference of agency from the fact that defendant’s truck was being driven by one of defendant’s employees as “a slender reed upon which to lean” and a “weak species of evidence,” quoting with approval from a concurring opinion in Bunnell v. Parelius, 166 Or 174, 185, 111 P2d 88 (1941), and adopting that view, for the first time, as the position of the majority of this court.
That view, however, was not adopted by the ma*363jority in Bunnell, nor by Eossman, J., in bis separate concurring opinion. Of more importance is the fact that in other decisions, both before and after Bunnell, this court has recognized that the prima facie inference of the agency of the driver of a motor vehicle from the fact of its ownership by the defendant is a “just and wholesome rule” and one based upon sound public policy.
Thus, in the case which has the genesis of this rule in Oregon, Judson v. Bee Hive Auto Service Co., 136 Or 1, 294 P 588, 297 P 1050, 74 ALR 944 (1931), this court held (at 8-9):
“* * * when a person is found in possession of a car and is operating it, it is not an unreasonable deduction that he is the agent of the owner and is using the automobile for the latter’s benefit. Experience teaches that when automobiles are involved in accidents they are ordinarily being operated by the owner or by someone for whose negligence he will be responsible.
“This doctrine of respondeat superior is just and wholesome. An automobile is potentially a dangerous instrument as evidenced by the appalling number of accidents in recent years. In these days of ‘hit and run’ drivers the party injured does well to prove the ownership of the automobile, aside from any question of establishing the fact that the driver was acting within the scope of his agency. Ordinarily plaintiff is not in a position to prove those things which are peculiarly within the knowledge of the owner. Most courts consider it just and reasonable to require that defendant go forward with the evidence and rebut the inference of agency by showing that, in truth and in fact, he is in no manner responsible for the acts of the driver. This does not mean that the burden of proof relative to .the question of agency is to be shifted from the plaintiff to the defendant. The *364burden of proof never shifts from the party who has the affirmative of an issue, but the burden of proceeding with the evidence sometimes does. The law, in effect, says to the owner: ‘If you do nothing to explain your relationship to the driver of the automobile, the jury may infer that he was acting in your behalf.’ ”
As also later recognized in Jasper v. Wells, 173 Or 114, 123-24, 144 P2d 505 (1943), quoting with approval from Bunch v. Standard Oil Co., 144 Or 1, 11-12, 23 P2d 328 (1933):
“ ‘In order to avoid the consummation of an injustice, and when the facts are peculiarly within the knowledge of the opposite party litigant, the courts have relaxed * * * the quantum of proof required of plaintiff to entitle him to have his case submitted to the jury, in the absence of any evidence on behalf of the defendant.’ ”
To the same effect, as stated in Summerville v. Gillespie, 181 Or 144, 149, 179 P2d 719 (1947), quoting with approval from West v. Kern, 88 Or 247, 254, 171 P 413, 1050 (1918):
“ ‘This rule proceeds on the theory that the facts are peculiarly within the knowledge of the defendant and that he can easily furnish the necessary evidence to show that the vehicle was not being used for him, if such is the fact. If it be said that this rule occasionally imposes a hardship upon a defendant, the answer is that a less liberal rule would more frequently result in hardship to a plaintiff.’ ”
This view is in accord with the decisions of the courts of most other states on this subject. See 11 Blashfield, Automobile Law and Practice (3d ed 1968) 174, § 417.7, citing numerous cases holding that proof of ownership of an automobile either creates a pre*365sumption or justifies an inference that the driver was the agent or servant of the owner and that at the time of the accident he was operating it within the scope of his agency or employment.
In Oregon, unlike most states, Article VII, § 3 of its Constitution expressly forbids all Oregon courts from “re-examining” any fact found by a jury by the granting of a judgment n.o.v. “unless the court can affirmatively say there is no evidence to support the verdict.”① Conversely, the effect of the adoption in 1910 by the voters of Oregon of Article VII, § 3, is to forbid all courts from granting motions for involuntary nonsuits or directed verdicts if there is any substantial evidence from which the jury could return a verdict in favor of the plaintiff. See Kraxberger v. Rogers, 231 Or 440, 449, 373 P2d 647 (1962).
It will be noted that the rule of Judson v. Bee Hive Auto Service Co., supra, although referred to by this court as an “inference,” has characteristics of both an “inference” and a “presumption,” and that both “inferences” and “presumptions” are declared by Oregon statute to be “indirect evidence.”② In addition, ORS 17.250 (2) expressly provides, with reference to juries, that:
“That they are not bound to find in conformity *366witli the declarations of any number of witnesses, which do not produce conviction in their minds, against a less number, or against a presumption or other evidence satisfying their minds;”
Insofar as proof of ownership supports a logical .deduction of the fact of agency, it is an inference, but insofar as it is a rule based not only upon the idea of “probability,” but also on the public policy arising from problems of proof confronting persons injured in automobile accidents, it partakes of at least some of the characteristics of a presumption.③
Because of the constitutional requirements of Article VII, § 3, as well as the statutory provisions of OB.S 41.310, 41.320, 41.340 and 17.250(2), and because we have held that under this rule proof of ownership alone is sufficient to make a prima facie case on the issue of agency,④ it is difficult to escape the conclusion that the “inference” or “presumption” arising from the rule of Judson v. Bee Rive Auto Service Co., supra, constitutes “substantial evidence” so as to forbid all Oregon courts from granting an involuntary nonsuit or a directed verdict in such a case on the issue of agency, as was done by the trial court in this ease.
Nevertheless, this court held in that case, that the inference arising from the fact of the ownership of an automobile, although “evidence” by statute, was “no evidence” within the meaning of Article VII, § 3 of the Oregon Constitution.⑤ It is important, however, to note two basic elements that were present in that *367case: (1) the evidence -which was held to overcome that inference consisted of a written bailment agreement which was not only nneontradicted, but was of unquestioned authenticity and credibility, so as to justify the court in stating (at 14) “[t]here is not the slightest suspicion about it,” and (2) in that case the inference of agency rested on proof of ownership alone, with no other supporting evidence whatever, either direct or indirect.⑥
The illustration used by the court (at 14) to support its conclusion is also revealing, i.e., that the presumption that a person not heard from for seven years is dead would surely be overcome if that person walked into the court room, leaving nothing for the jury to decide on- that issue.
The majority in this case concedes that in order *368to overcome the prima facie inference of agency arising from the fact of ownership the evidence must be “clear and uncontradicted.” As also stated in Gossett v. Van Egmond, 176 Or 134, 143-144, 155 P2d 304 (1945):
“# * * [A]s a general rule it is for the jury to say whether or not a prima facie ease, based upon inference, has been overcome. Only in the extreme instances, when but one reasonable inference can be drawn from the facts, should the court direct a verdict.”
It would appear, however, from a decision by Justice Lusk, spealring for this court in Kraxberger v. Rogers, supra (at 450) (some years after Ms concurring opinion in Bunnell v. Parelius, supra, relied upon by the majority), that in order to overcome the inference arising from the ownership of an automobile the evidence must not only be “uncontradicted,” but must be “free from doubt or suspicion” as to the credibility of the “uncontradicted” testimony.
Indeed, the mandatory provisions of Article VII, § 3, would appear to require that the question whether the prima facie inference of agency arising from the ownership of an automobile has been overcome must be submitted to the jury as a question of fact, and cannot be decided by the Oregon courts as a matter of law, either: (1) if the credibility of the witnesses who give the testimony claimed to overcome that inference was not “free from doubt or suspicion” or (2) if, in addition to the inference of agency arising from the fact of ownership alone, there was any other evidence to support that inference.
Thus, we must next consider the remaining two questions:
(1) Can it be truthfully said that the testimony *369of Hansen and Lovely as to the intended purpose of Lovely’s visit to Hansen was not only “uncontradicted” as claimed by the majority, but that the credibility of these witnesses was “free from doubt or suspicion,” and (2) can it be truthfully said that there was no other or additional evidence which either supported the inference that the purpose of the visit was within the scope of Lovely’s employment by defendant or which tended to contradict the testimony claimed by the majority to be “uneontradieted.”
In my opinion, if there is any reasonable doubt as to the answer to either of these questions, the refusal to submit this case to the jury would not only violate the constitutional mandate of Article VII, § 3, but would “make a mockery” of a rule which we have held to constitute a prima facie inference of agency in automobile accident cases and to be a “just and wholesome rule” in such cases by “taking away with one hand what [the court] has with enlightened liberality given with the other.”⑦
2. The credibility of the testimony of Lovely and Hansen that it was their intent to use the truck to go to work on one of Lovely’s rental houses was not “free from doubt or suspicion,” so as to make it proper to withdraw that question from the jury.
As stated by the majority, this court in Rickard v. Ellis, 230 Or 46, 51, 368 P2d 396 (1962), and in Wiebe v. Seely, Administrator, 215 Or 331, 343-44, 335 P2d 379 (1959), examined “the well-established principle that the credibility of witnesses is ordinarily to be determined by the jury.” As also stated by the *370majority, this court in.Richard (at 52) stated that “two important factors” to be considered in deciding whether to withdraw from the jury the credibility of witnesses who give “uneontradicted testimony” are: “(1) the availability of evidence tq contradict the witness’s statement, and (2) the likelihood that the witness’s interest in the litigation may tempt Trim to testify falsely.”
In neither Richard nor in Wiebe did this court discuss this problem in terms of Article VII, § 3. The reason may be that in both eases it was held that the credibility of the testimony of the witnesses involved should have been submitted to the jury. Thus, this court did not withdraw that question from the jury in those eases.
The majority, however, would now apply the “tests” as stated in Richard and Wiebe to justify the withdrawal from the jury of the question of the credibility of testimony given by Lovely.and Hansen that it was their intent to use the truck to go to work on one of Lovely’s rental houses. Thus,, the problem is presented as to whether,. and if sq, under what circumstances, this can be done within the limits of the mandatory provisions of Article VII, § 3.
As previously stated, Article VII, § 3, not only guarantees the right of trial by jury, but expressly forbids the Oregon courts to withhold from the jury any issue of fact on which there is substantial evidence, whether direct or indirect, and including all reasonable inference. It would thus appear to be difficult to reconcile with Article VTI, § 3, the withdrawal from the jury of any issue relating to the credibility of a witness unless both the substance of his testimony and the credibility of the witness are clear and *371uncontradicted. Conversely, if there is any substantial evidence, whether direct or indirect, which either contradicts the substance of the testimony or impeaches the credibility of the witness who gave snch testimony, the Oregon courts, by reason of Article VII, § 3, must leave the credibility of such a witness to the jury.
The question whether the testimony of Lovely and Hansen was “uneontradicted,” as held by the majority, is discussed separately below. We now turn, however, to the question whether there was any evidence, direct or indirect (i.e., including inferences), which impeached the credibility of Lovely and Hansen.
In addition, as previously stated (and wholly aside from Article VII, § 3), two factors recognized by the majority as factors to be considered in deciding whether the credibility of witnesses should be submitted to the jury, even if their testimony was uncontradicted, are: (1) whether the testimony comes from an interested or a disinterested witness and (2) whether evidence is available to contradict the witness’s statements.
The majority quotes at length from the testimony of Lovely and Hansen, including their testimony that Lovely’s purpose and intent in using the truck that evening was to pick up Hansen to help him in working on one of his rental houses. The majority then says that these two “factors” were satisfied in this case because Hansen was not an interested witness for the reason that he was no longer employed by defendant at the time of trial, but was a “competitor,” and because evidence was available to contradict that testimony in that payment by Lovely to Hansen for previous similar work had been made by checks, which could have been produced on demand.
*372It must be conceded that at the time of trial Hansen had no further interest as an employee of defendant and that he did not have an interest as strong as that of the witness in Rickard v. Ellis, supra. On the other hand, the issue to be decided in this case was not-the intent of Hansen, but the intended purpose of Lovely in using the truck that evening. Lovely was clearly an interested witness. Even as to Hansen, however, it is apparent from the testimony that he not only had been recently employed by defendant, but was a friend of Lovely. "While his interest in protecting both defendant and Lovely was perhaps not direct, Hansen was not a completely disinterested witness in the same category as an innocent bystander or a complete stranger. Conversely, the jury could properly find from these circumstances that he had at least some substantial bias iii favor of Lovely and defendant, as Lovely’s employer.
And while checks might have been produced to show prior employment of Hansen by Lovely, the question is not whether Hansen had previously worked on Lovely’s rental houses, but what they intended to do that night. This was a question of Lovely’s subjective intent and was thus a question on which there could have been no evidence to contradict, much less any objective evidence.
Thus, in Rickard v. Ellis, supra, we held (at 51), in referring to testimony relating to matters which were wholly subjective:
“We believe that this is precisely the type of situation in which the jury’s function in testing the credibility of witnesses has its greatest justification, i.e., where an essential fact in issue is ascertainable only through the testimony of a claimant. * *
*373To the same effect, this court held in Leo v. Heller, 255 Or 390, 393, 467 P2d 439 (1970), in rejecting a contention that a trial judge, as the trier of the facts in that case, erred in disregarding the testimony of defendant’s witnesses:
“* * * [m]uch of the testimony offered by defendant was of the kind that plaintiff would not likely be able to secure knowledge or evidence of its truth or falsity. Thus, plaintiff would not be in a position to contradict it. Under such circumstances, the finder of facts is not required to accept the testimony at face value. * * *”⑧
Indeed, it is the generally recognized rule that a person’s intent is a question of fact to be decided by the jury. Parker v. School District of Valley Park, 325 SW2d 59, 61 (Mo Ct App 1959), and Piwowarski v. Cornwell, 273 NY 226, 7 NE2d 111-12 (1937). This is because intent is a “subjective thing” and “[w]hat a man says about it may as easily conceal it as reveal it.” State v. Mueller, 388 SW2d 53, 60 (Mo Ct App 1965). And a “given intent may be found even though a party orally deny its existence.” State Highway Dep’t. v. Civil Service Commission, 35 NJ 320, 173 A2d 28, 32 (1961). See also Hasty v. Wilson, 223 Ga 739, 158 SE2d 915, 923 (1967); Hankinson v. Lynn Gas & Electric Co., 175 Mass 271, 56 NE 604, 605 (1900); and 72 ALR 27, 54-55 (1931).
In addition, it is also to be noted that in Rickard v. Ellis, supra (at 52), it was made clear that the interest of a witness and the availability of evidence to contradict his testimony are only two “factors” to be *374considered in deciding whether the credibility of the witness must be submitted to the jury. Because in Richard we held that the credibility of the witness in that case should have been submitted to the jury it was not necessary to consider other possible “factors” which would also require the same result, although express reference was made (at 52, n. 2) to “other factors.”
These additional “factors” include the existence of inconsistencies in the testimony of the witness who gave the “uncontradicted” testimony which might serve to impeach the credibility of the witness and the fact that the demeanor of the witness may be such as to cause the jury to discredit his testimony.⑨
As stated by Justice Lusk in Kraxberger v. Rogers, supra (at 453), an automobile case involving the issue whether the driver was driving with the permission of the owner:
“* * * since the jury had the right to believe that the defendant had taken inconsistent positions with respect to a material and important part of his testimony they would have been justified in entertaining ‘different views’ as to the whole of it.”
See also Davis v. Underdall, 140 Or 242, 248, 13 P2d 362 (1932), in which Chief Justice Bean quoted with approval from another case as follows:
“ ‘* * * [a] witness’ manner of testifying may give rise to doubts as to- his sincerity, or create the *375.impression that the facts testified to by him.are .colored or not correctly stated.’ ”
In addition, ORS 17.250(3) provides, with reference to the consideration by a jury of the credibility of a witness: ■ •
■ “That a witness false in one part of his testimony is to be distrusted in others;”
Thus, it is specifically provided by statute in Oregon that an inconsistency in the testimony óf a witness is a proper factor to be considered in determining' the credibility of his testimony.
The majority has quoted from the testimony of both Hansen and Lovely. It appears from the quoted testimony that when plaintiff’s attorney interviewed Hansen prior to the trial he was told by Hansen that when Lovely came to his door on the evening of the accident he inquired about the roofing job on which Hansen had worked that day as an employee of defendant under the supervision of Lovely, as his foreman, and that Lovely had been on that job in the morning, but not that afternoon. The fact of the inquiry by Lovely about that job upon calling at Hansen’s home was, of course, important evidence to the plaintiff to show that Lovely was acting in the course of his employment when he used defendant’s truck to call oh Hansen.
When, however, Hansen was called by plaintiff’s attorney as a witness he flatly denied that Lovely made such an inquiry. Only when plaintiff’s attorney reminded Hansen of the statement previously made by him did Hansen admit that he had made such a statement and he then hastily volunteered that “that was all.”
*376Lovely, when asked by plaintiff’s attorney whether he had made such an inquiry on calling at Hansen’s home, answered “Not that I recall.” ( ,
. Under these circumstances the demeanor of both Hansen and Lovely as they testified and . as-,.,- they appeared together in the courtroom could have been an important factor to the jury in deciding whether or not they were truthful and credible witnesses⑩ or whether, on the contrary, they were hostile, uncooperative and evasive witnesses who lied on vital matters when they could get away with it and attempted to conceal the true facts.
: In'addition, and of even more importance for the purposes of Article VII, § 3, the jury could very properly have found from this inconsistency in the testimony by Hansen that he fully realized the importance of’ that inquiry; that Hansen lied deliberately in at first denying that inquiry; that when caught in the lie he attempted to help his friend Lovely as best he could by a voluntary attempt to minimize the- extent of the conversation on that subject, and that Lovely also lied about the matter in choosing not to “recall.”
Por all of these reasons, I strongly believe’ that the jury in this case was not required to believe the testimony of Lovely and Hansen that their subjective purpose and intent on the night of the accident was to work on one of Lovely’s rental houses.
It is quite one thing to say that the jury must believe uncontradicted testimony by a completely disinterested witness as to an objective fact which is *377capable of complete verification. It is quite another thing, ■.particularly in view of the mandate of- Article VII, .§ 3, to say that a jury is compelled to believe the testimony of a witness who has any possible bias or interest, by reason of friendship, employment. or otherwise, when the subject of his testimony relates to his own or another person’s subjective purpose or intent. This is particularly true when, as in this case, there was evidence from which the jury could have found'that a witness was not only biased, but that there were inconsistencies in his testimony, providing further “substantial evidence” from which the- jury could, have found that the witness was untruthful.
In my view, the testimony of both Lovely and Hansen falls within this category and it was for the jury, alone to decide whether or not they were telling the truth, after observing their demeanor, which this court cannot do. I cannot subscribe to the proposition that under the circumstances of this case it was proper to hold, as a matter of law, that the jury was required to believe the testimony of these witnesses and to deprive the plaintiff of what I consider to • be her right under the Oregon Constitution to have the question of their credibility submitted to the jury.⑪
Of even greater importance, however, is the .fact that the jury was not required to accept the testimony of Lovely and Hansen because, in my opinion, even if their testimony was otherwise “credible,” that testi*378mony cannot properly be said to be “uneontradieted” evidence, as so repeatedly stated by the majority. This is of extreme importance because if there was any “substantial evidence,” aside from or in addition to the inference of agency arising from the fact of- ownership, from which the jury could find that the purpose of Lovely in calling on Hansen was to inquire as to the progress of the work of defendant’s roofing: crew on the morning of that day, two results would then follow: (1) the testimony that the purpose of the trip Tas to pick up Hansen to work on Lovely’s - rental house would not be “uneontradieted,” as required in order for this court to hold, as a matter of law/that such testimony overcame the prima facie inference resulting from the fact of defendant’s ownership of the truck, and (2) the possible finding of the jury for the plaintiff on that issue would not then be dependent solely upon the inference of agency from the fact of ownership, because that same finding would, then also be supported by other evidence so as to make it even more clearly mandatory under Article VII, § 3, that the case be submitted to the jury for decision.
3. There was “substantial evidence” which, when considered either in conjunction with or independently from the prima facie inference arising from the fact of ownership of the truck would have supported a finding by the jury that the purpose of the use of the truck was within the scope of Lovely’s employment.
a. The test to be applied in determining, this ■question is not whether a judge may think that such a finding by the jury would be “unreasonable,” but whether there was any “substantial\ evidence” to support- such a finding.
*379Before discussing the testimony it is first necessary to consider the legal standard which the majority would apply to a determination of this question.'
The majority would adopt as the “general standard” to he applied in such cases the test as stated in Jerke v. Belmont State Bank, 54 SD 446, 456, 223, NW 585, 589 (1929), by quoting from that case as follows:-
“The court, after noting that ‘we are too often prone to exaggerate the powers and privileges of a jury as a trier of facts,’ reminds us that ‘the general superintendence and control of the court and all its machinery, including the jury, rests, with the judge, and [that] it is fundamental that an issue arising between litigants must be tried' by a general, rational, or reasoning process, both as to the ascertaining of facts and the application of the Um.’ ” (Emphasis added)
and that:
“ c Jurors do not determine all questions' of .ultimate fact, even in jury cases. They determine the existence or nonexistence of those facts, and those only, with reference to the .existence of which the. judgment of reasonable men might differ as" a .result of their intellectual faculties to the pvidonee.’ ” (Emphasis added) . '' . ,
The majority does not,' however, quote the necessary corollary to such a' rule, as set forth in the following additional statement by the South' Dakota court in Jerhe (at 591):
* * [t~]he standard,-of reasonableness is.subjective, and it is the standard of the judge that must be used; probably in the final analysis the standard of the court of last resort in any given jurisdiction; but the nature of determination, remains the same. "When a court holds in any given-case or upon any given facts, that the direction of *380"a')verdict is proper, it is- not in any strict'-sb'nse announcing a rule or doctrine of law, but is merely annp,tmcing its judgment or opinion as a matter, of reason and logic that in that case and upon those facts reasonable minds could not differ as .to the result to be reached.” (Emphasis added.) ;
In other words, according to the majority,-.whenever the jury arrives at a verdict which, in the opinion of the trial judge would not be a reasonable result, the judge can set aside such a verdict by the simple process of saying that, in the exercise of his “intellectual faculties,” no reasonable man could arrive at "such a result and that anyone who contends to the contrary is, ipso facto, not a “reasonable man.”
..-Conversely, whenever the trial judge, in the exercise of his “intellectual faculties,” and by application of what is referred to in Jerhe (at 594) as “the rule of reasonable judgment” believes that a verdict for one party or the other, whether plaintiff or defendant, would be “unreasonable” it has the duty to direct that a verdict be entered for the other party, whether defendant or plaintiff. (See Jerke, at 593.)⑫
It also necessarily follows that what is “reasonable” to one trial judge in one county may not be “reasonable” to another judge in the same or . in another county and that what is now considered to be “reasonable” by the majority of the members of *381this court may not be. considered “reasonable” by,-a majority of the members of the court in another,yqar,⑬
It may be that in South Dakota and in some Other common law jurisdictions the courts have such broad powers in jury cases. In Oregon, however, in 1910, after a long history of dissatisfaction with'the setting aside of jury verdicts by the courts and- with the expense and delay of the-appeals encouraged by -the exercise of such broad powers, the voters adopted as an amendment to the Constitution of Oregon Article VII, § 3, which provides, among other things that:
“* * * no fact tried by a jury shall be otherwise re-examined in any court of this state, unless the court can affirmatively say there is no evidence to support the verdict * *
As previously stated, this mandate is controlling not only upon the power of the Oregon courts to set aside jury verdicts, but also upon their power to -grant directed verdicts and thereby refuse to submit cases to the jury for decision. Yet the “rule of reasonable judgment,” as adopted by the majority, would restore to trial judges and to this court the very power of the common law courts that the people of Oregon sought to limit, if not take away, by the adoption of Article VII, § 3, by authorizing Oregon trial judges (and this court) to by-pass the requirements of Article VÜ, § 3, *382by .the 'granting of direeted verdicts wheneverp-in-the opinion of the court, a jury verdict other than as so directed would be “unreasonable.”
Ins my opinion, this ease should be decided solely by ■ considering whether, as .required by Article VII, § 3, a. jury verdict in favor, of the plaintiff in this :case would have to be set aside'upon the ground that there was gao “substantial evidence”.to support a finding-by the; jury that on the evening- of the accident- Lovely was', using the truck within: the scope of his agency or employment as an -employee of the defendant. ;
It may be contended, -whether cynically or not, that even under the rule- of “substantial evidence” doiirfe may reach the samé result and that the problem is mainly one of semantics. I prefer to believe, howeveirp that the Oregon - voters, by the adoption of Article-VII, § 3, had a right to expect that under the terms of that provision jury-verdicts would have more finality and that judges1 would have less power to direct or set aside jury verdicts than in previous years during which the Oregon courts followed a rule which had substantially the effect as the rule that the majority, would now adopt.⑭ I. believe that the people of Oregon are entitled to have the provisions of Article VH,; § 3, interpreted and applied in such a manner as *383will .carry out that original intent and that ■ the: ¡doctrinaire-theory adopted- by the. majority in this, case would defeat, rather than carry out, that intent.- . ¡ ■
" I must confess that I am unable to understand how the opinion to whicli the! majority subscribes-can properly ignore the existence of the problems in this case under Article VII, § 3,' in this dissenting Opinion. Indeed, if there are answers-to these problems I béliéve that they should be discussed by the majority opinion, rather than wholly ignored by proceeding to decide this case as though Article VII, § 3,' never existed. ■ '•’
b. ’ ''Tliere was substantial evidence to support such - a finding by the jury in this case.
TTpop. examination of 'the entire record, the following facts appear, in addition to the so-called “tmcont'radicted testimony” of Hansen and Lovely:
(1.)..¡The,.vehicle whiph,injured plaintiff was, not an ordinary passenger car, but was a commercial vejiicle-j—a, pickup truck..,¡
(2) Mr Lovely, thee driver of the truck,. was not only.an. employee of defendant, but was the foreman of defendant’s roofing crew. • ■ ? :
(3) : Mr. Lovely was subject-to “call” by defendant durihg ’ the evenings, > including' the evening ; of - the accident/ in the sense that-in-the event of emergency calls he’'would answer* such calls and make teihptírary roof repairs, as well as cdst’ estimates for permanent repairs.- .' ■ -d
'' '(it)' The truck was owned -bv' defendant' arid1 Was placed'by defendant i’n thp possession of Mr.’ Lovely for- use’ in answering suftli dalls’ and also because-he had'a; shop large enough^ for storage of the trUcfc-
*384:(5)'! iAll gasoline for the truck was’ furnished' hy defendant and the truek also carried at least' some tools, equipment and supplies belonging to defendant.
. (6)-. According to defendant’s manager, Mr. Lovely, as foreman of defendant’s roofing crew, “would supervise the crew when they were on the job and at the end of the day.” As foreman, Lovely was interested in the-progress of the. various roofing jobs.
,(7) - In addition, when even the reluctant - Mr. Lovely .was asked if he checked with the roofing crew in the evenings to see how they were doing he answered “not very often” and that he “generally” had the work for the crew “lined out in the morning.”
' • (8) ; On the day of the accident Mr. Lovely Was present at the job being .worked on by the roofing crew during the morning, but not in the afternoon.
(9.) That evening Mr. Lovely drove the truck to the house of Mr. Hansen, a member of the roofing crew, parked the truck in front of his house, went to the door, “came in” and asked, “Did you fellows get done with your job? * * * How did you fellows do today?” according to the testimony of Mr. Hansen. Mr. Lovely did not “recall” this.
■ (10) At that point-the conversation was interrupted by the accident.
The1 fact that the vehicle involved was á commercial vehicle; the fact that Lovely was an employee and the: fact that the truck was carrying tools belonging to i defendant are facts which constituted “substantial evidence” supporting-the inference of agency and make that inference stronger than one based- solely ■upon;-proof of ownership. of -a noncommercial vehicle, even. though, that is held to be sufficient to make a prima facie case on therdssue of agency. See Davis v. Underdahl, 140 Or 242, 247; 13 P2d 362 (1932) ; Jasper *385v. Wells, 173 Or 114, 130, 144 P2d 505 (1943) (concurring opinion); and Kraxberger v. Rogers, 231 Or 440, 451, 373 P2d 647 (1962). ;
Of more importance, however, is the fact that the requirement of “substantial evidence”... on this issue of this case was amply satisfied by the testimony that Lovely usually cheeked with the roofing crew at the end of the day’s work, but sometimes did so in the evening, coupled with testimony that he was not present that afternoon on the job being worked on by the roofing crew under his supervision and that on meeting Mr. Hansen he inquired as to the progress of the crew on the job that day. That testimony was sufficient to support several inferences by the jury:
(1) At least one of the inferences which the jury could have reasonably drawn from that testimony was that the purpose of the visit was in fact to inquire as to the progress of that job, just as stated .in the words of the inquiry, and that this inquiry by Lovely was a “business inquiry” and not a mere “pleasantry,” as the majority would necessarily assume. Even under the rule of the Jerhe ease, as adopted by the majority, I contend that this court cannot properly say that based upon this evidence no reasonable jury could have reached such a conclusion and that to do so would have been “gross speculation,” as held' by the majority. Indeed, such a finding by the jury from all of the facts of this case would have been far less speculative than the “inferences on inferences” which were held not to be speculative in Eitel v. Times, Inc., 221 Or 585, 352 P2d 485 (1960).
(2) Another inference that the jury coiild reasonably have drawn from all of this testimony was that .Lovely and Hansen. were simply not telling the trudi 'in the' testimony of .their wholly , subjective *386intent to work on one of Lovely’s rental houses that .evening. .
(3) Still another inference the jury could have reasonably drawn from these facts was that even if such testimony was true, Lovely nevertheless had a dual'purpose in making this trip; one purpose being to check on the progress made by the roofing crew that' day, and the other purpose being to pick up Hansen to assist Lovely in working on his house. Even if the 'jury believed that the trip was taken primarily for that personal purpose of Lovely, such a conclusion would not preclude the trip from being within the scope of Lovely’s employment by defendant so long as the jury further believed that Lovely would have visited Hansen to check on the progress of the job on which he had been absent in the afternoon even if he had not also intended to go on from there and work oh his rental house. See 1 Restatement 523-24, Agency 2d § 236, Comment b, and 6 Blashfield, Automobile Law and Practice (3d ed 1966) 218-19, § 253.52.
We must not forget that in this case, as in many automobile accident cases, the injured plaintiff has the burden of proving the fact of agency from the mouths of defendant’s own employees and their friends and that in such a ease, upon the proof that the truck was owned by defendant the plaintiff made a prima facie case on the issue of agency and was then entitled to have that issue submitted to the jury, even in the absence of any other supporting evidence, unless that inference was overcome by evidence so “clear and uncontradicted” as to be “free from doubt or suspicion.”⑮
*387In this case, for reasons previously stated, the evidence did not satisfy that test because: (1) it consisted of testimony by witnesses whose credibility was not “free from doubt or suspicion” and (2) that testimony was not “uncontradicted.”
Thus, this court cannot properly withdraw from the jury the question of the credibility of Hansen and Lovely, not only because that testimony related to their subjective intent, rather than to any objective fact capable of verification, but also because there were inconsistencies in their testimony constituting “substantial evidence” from which the jury could properly find that they were biased and unreliable witnesses.
Neither can this court properly say that the testimony of Hansen and Lovely was “uncontradicted” because, in addition to the inference arising from, the fact of ownership of the car, there was other affirmative testimony which not only cast doubt upon the veracity of that testimony, but provided additional and “substantial evidence” on the issue of agency in this case.
For all of these reasons, it is my considered opinion that it was error for the trial judge to refuse to submit these issues to' the jury for determination. For these same reasons, I must respectfully dissent.
The term “no evidence” has been interpreted by this court to mean “no substantial evidence.” Kraxberger v. Rogers, 231 Or 440, 449, 373 P2d 647 (¡1962).
The Oregon legislature has declared (by ORS 41.040) that evidence includes both “direct” and “indirect” evidence and has declared (by ORS 41.310) that “indirect evidence” is of two kinds: “inferences” and “presumptions.” An “inference” is defined (by ORS 41.320) as “a deduction which the reason of the jury makes from the facts proved, without an express direction of law to that effect.” A “presumption” is defined (by ORS 41.340) as “a deduction which the law expressly directs to be made from particular facts.” See also McCormick on Evidence (2d ed .1972) 806-807, § 343.
The rule is regarded as a presumption in McCormick on Evidence (2d ed 1972) 808, § 343.
Judson v. Bee Hive Auto Service Co., 136 Or 1, 6, 294 P 588, 297 P 1050, 74 ALR 944 (1931).
Id. at 14-15, quoting with approval from Consor v. Andrew, 61 Or 483, 490, 123 P 46 (1912).
It is also of interest to note that in Judson v. Bee Hive Auto Service Co., supra note 4, no reference was made to the previous decision of this court in Richardson v. Portland T. Car Co., 113 Or 544, 549, 233 P 549 (1925), in which this court disposed of defendant’s reliance on Goss v. Northern Pacific Railway Co., 48 Or 439, 87 P 149 (1906), as follows:
“* * * Chief Justice Bean, speaking for the court, concluded by saying:
“ ‘® * * where there is no proof of negligence, except the mere inference or presumption arising from an accident, and this is overcome by positive, undisputed and unimpeachable testimony, there is no question of the preponderance of evidence, and nothing for the jury to decide.’
“The rule announced by the learned Chief Justice was undoubtedly a correct statement of the law when made; but, in view of Section 3, Article VII, of the Constitution of Oregon, which now precludes this court from considering the weight of evidence when passed on by a jury, it can no longer be regarded as such. It is not for us to say as a matter of law that a presumption of negligence has been overcome by evidence, as that is a matter within the exclusive province of the jury to determine. * * *”
This holding in Richardson has never been expressly overruled on this point. To the same effect, see Gillilan v. Portland Crematorium Assn., 120 Or 286, 293, 249 P 627 (1926).
Cf. Bobbe, The Uncontradicted Testimony of an Interested Witness, 20 Cornell L Q 33, 49 (1934).
For a more recent case in which this court held that the trier of the fact was not required to believe uncontradicted testimony, upon application of the rule of Rickard v. Ellis, 230 Or 46, 52, 368 P2d 396 (1962), see Bezoff v. Crater Lake Motors, Inc., 259 Or 449, 452, 486 P2d 1274 (1971).
See Brizius, Directed Verdicts on Uncontradicted Testimony, 1959 Trial Lawyers Guide 65, 73; Note, The Power of the Court to Determine Witness Credibility, 107 U Pa L Rev 217, 227 (1958). See also Annot., 62 ALR2d 1191, 1194, 1209 (1958); Note, The Motion for' Directed:-Verdict ih’ Indiana;-32 Ind L J 238, 254 (1957); and Bobbe, The Uncontradicted Testimony of an Interested Witness, supra note 7.
Lovely also gave inconsistent testimony in that on cross-examination he directly denied that he examined the bumper of the truck immediately after the accident, while on ¡redirect examination he admitted that he did so.
Cf. Gossett v. Van Egmond, 176 Or 134, 144, 155 P2d 304 (1945),- in which this court stated, with reference to the closely-related “family purpose” doctrine:
* ** [t]he ‘family purpose’ doctrine has been adopted in ■this state as a part of the law of agency. If the testimony of interested witnesses, under the circumstances before us, ‘were to be received as conclusive, the “family purpose” doctrine would be practically nullifed.’ * * *”
It is oí interest to note that while in this case the majority wóúld affirm a directed verdict for the defendant, rather than for the' plaintiff, the effect of this decision is to affirm a directed verdict,-on the issue of agency in favor of the party with the burden qf going forward with the evidence on that issue, which had passed to the defendant upon proof by plaintiff that the truck was owned by defendant. See also -Comment, Directing the Verdict-in Favor of the Party with the Burden of Proof, 50 NC L Rev 843,i84S.(1972). . '
By analogy, in 1961 it was held by one appellate court that a jury award of $50,000 for loss; of two fingers on one hand to a 31-year-old railroad employee' was so “grossly excessive” as to necessitate a new trial, i.e.,..all “reasonable minds” would so agree, see Smith v. Illinois Central Railroad Co., 29 Ill App 2d. 168, 172 NE2d 803 (1961). Yet another court held in 1960' that a,.jury award of $78,860' for loss of two fingers and part of a third.finger to a 37-year-old railroad employee was not excessive. See , Missouri Pacific Railroad Company v. Handley, 341 SW2d 203 .(Tex Civ App 1980). For other examples, see Annots., 12 ALR3d 117, 475; 11 ALR3d 9, 370; and 17 ALR2d 832.
It is' not unlikely -that in 1910 the voters of Oregon, in the adoption of Article VII, § 3, as an amendment to the Oregon Constitution,. were of the same -mind as that expressed in Travelers’ Ins. Co. v. Selden, 78 F 285, 287 (4th Cir 1897), that:
“the judgment of 12 impartial men, of the average of the community, applying their separate experiences of life to the solution of such doubts as may arise, is more likely to be wise and safe than the conclusion of any single judge, and the practice is not to be encouraged which would substitute the conclusion of one mind for that average judgment which the object of our system'of jurisprudence to obtain in all proper cases ** *
Kraxberger v. Rogers, supra note 1, at 450. Cf. Judson v. Bee Hive Auto Service Co., supra note 4, at 14.