I concur in the conclusion reached in the majority opinion but cannot agree with the following legal principle stated therein:
*464“If the evidence contrary to the existence of the fact is clear, positive, uncontradicted, and of such a nature that it can not rationally be disbelieved, the court must instruct the jury that the non-existence of the fact has been established as a matter of law. ’ ’ That statement is inconsistent with other principles enunciated in the opinion.
It is there said: “If a jury can reasonably infer from these primary facts that the material fact exists, the party has introduced sufficient evidence to entitle him to have the jury decide the issue. The jury is not compelled to draw the inference, however, even in the absence of contrary evidence and may refuse to do so. Whether a particula/r inference can be drawn from certain evidence is a question of law, but whether the inference shall be drawn, in any given case, is a question of fact for the jury.” (Italics added.)
Also: “Usually, the opposing party introduces evidence as to the non-existence of the fact in issue, and the jury must then determine the existence or non-existence of the fact from all the evidence before it.” (Italics added.)
“The jury, however, is the sole judge of the credibility of the witnesses . . . and is free to disbelieve them even though they are uncontradicted if there is any rational ground for doing so.” (Italics added.)
It seems illogical to me to say, that if a jury may reasonably infer from the primary facts the existence of the material fact, the case may then be decided by the jury, but that evidence contrary to the inferred fact destroys the inference if it is clear, positive, uncontradicted, and cannot be disbelieved. The query at once arises, disbelieved by whom f The jury may or may not draw that inference as it chooses, but immediately that it is determined as a matter of law that it may be drawn by the jury, it is evidence in the case, equal in weight and value with any other evidence. Whatever evidence may be introduced by the opponent does nothing more than create a conflict in the evidence which must be resolved by the trier of fact. That conclusion necessarily stems from the rule stated in the majority opinion that the jury is the sole judge of the credibility of witnesses. What difference can it make on appeal where matters of law alone are considered whether the evidence opposing the inference is clear, positive and uncontradicted i It is still within the province of the trier of fact to disbelieve such evidence, and if it does, the inference stands unimpeaehed. If the jury is the sole judge of the credibility *465of the witnesses, this court cannot say as a matter of law that this evidence or that evidence, is clear, positive, uneontradicted and cannot be disbelieved. The very fact that the jury finds in favor of the inference and against such evidence conclusively shows that it is not clear, or uneontradieted or positive, or cannot be disbelieved. The jury necessarily must have found it unreliable because of one of those factors.
In my opinion, the true rule with reference to the effect of inferences in a case is, that this court’s function begins and ends with the determination of the sole question of whether a certain inference may be drawn from certain evidence. That question is one of law. If the facts do not justify the inference, it cannot be drawn, and the one relying upon the purported inference must fail. If, however, it may be said that the inference reasonably may be drawn, then it becomes the sole function of the jury to decide whether or not it shall draw the inference, and whether or not opposing evidence prevails over it. It may, without qualification, weigh that inference against any and all evidence opposing it of whatever character or nature. Its conclusion on the completion of that process is final and conclusive.
The statement that evidence contrary to the existence of the fact established by the inference may overcome the inference as a matter of law, if clear, positive, uneontradieted and of such a nature that it cannot be disbelieved, cannot stand in the face of the principles that an inference once permissible, is evidence, and that the jury is the exclusive judge of the credibility of witnesses and the weight of the evidence. Furthermore, it should be observed that the rule stated in effect declares that direct evidence is of greater weight or value than indirect or circumstantial evidence. Circumstantial evidence is nothing more than one or more inferences drawn from a series of proven facts. It is entitled to be given the force equal to direct evidence. (10 Cal. Jur. 1157.)
The legal test as to the existence of whether an inference arises is stated in section 1960 of the Code of Civil Procedure:
“An inference must be founded:
“1. On a fact legally proved; and,
“2. On such a deduction from that fact as is warranted by a consideration of the usual propensities or passions of men, the particular propensities or passions of the person whose act is in question, the course of business, or the course of nature. ” It is for the court to apply that test to determine *466whether an inference may he reasonably drawn from any given facts.
Adherence to the principles above-stated admits of only one possible limitation to the rule above-stated. If the credibility of the evidence in opposition to the inference is beyond any question when such evidence is subjected to any of the tests of credibility, then it might be said to be conclusive on the trier of fact. It is at once apparent that that limitation does not apply to oral testimony for the reason that one of the tests of credibility is the demeanor of the witness and his manner of testifying (Code Civ. Proc., sec. 1847); the observation of that factor may be made only by the trier of fact. It necessarily cannot be determined by an appellate court. It is conceivable that under proper circumstances documentary evidence might be conclusive, but the instances would be rare. It is doubtful if the physical circumstances would ever be conclusive inasmuch as their effectiveness is practically invariably dependent upon inferences that may arise therefrom, and as we have seen, the trier of fact may or may not draw those inferences. The statutes indicate the rarity of conclusive evidence. They provide:
“Conclusive or unanswerable evidence is that which the law does not permit to be contradicted. For example, the record of a court of competent jurisdiction cannot be contradicted by the parties to it.” (Code Civ. Proc., § 1837.)
“No evidence is by law made conclusive or unanswerable, unless so declared by this code.” (Code Civ. Proc., § 1978.)
The cases, Engstrom v. Auburn Auto Sales Corp., 11 Cal. (2d) 64 [77 P. (2d) 1059]; Crouch v. Gilmore Oil Co., 5 Cal. (2d) 330 [54 P. (2d) 709]; and Maupin v. Solomon, 41 Cal. App. 323 [183 Pac. 198], have added only confusion to an otherwise clear and concise rule. They should not be followed, much less extended. They fail to give to an inference its proper place in the law, and entirely overlook the principle that the trier of fact is the exclusive judge of the weight of the evidence and credibility of witnesses.
In my opinion the evidence in the ease at bar is sufficient to justify the inference that defendant Coffin was driving the automobile involved in the accident with the permission of defendant Mercantile Acceptance Corporation, and this issue should have been submitted to the jury. The judgment entered on the order granting a directed verdict as to the last named defendant should therefore be reversed.
Shenk, J., concurred.