(concurring in the result and in part of the opinion).
The majority opinion recites that (1) the car contained the goods of appellant; (2) that it was in a locality in which appellant’s agent customarily worked; (3) that the accident occurred during employee’s business hours; and (4) that the car was owned by the appellant. Concerning these four facts, that opinion holds: “The presumption of agency arising from the facts recited is, of course, a rebuttable presumption, Man-ion v. Waybright, supra, and the jury should have been so instructed in the manner requested by appellants’ proposed instruction number seven.”
I am unable to find any Idaho case in which any one or all the first three “recited” facts constitute or contribute to consti*772tute a presumption. Assume a case in which it appears that on a Saturday afternoon a sales agent, having his principal’s car so loaded, has been drinking heavily. He meets some companions and concludes that he will drive thé'm in it to the races. Returning from the racetrack he drives at sixty miles an hour enroute to a companion’s home, collides with another car, overturning the employer’s car, and one of his companions is killed directly in front of the store of a customer to whom he should have been offering goods that afternoon. It is apparent that the presence of the goods in the car, the hour of the accident and its locality, instead of creating a presumption, are entirely irrelevant once it is shown that the car was used with the intent to proceed from the racetrack to the companion’s home.
In that case, instead of an instruction that the goods in the car, the time and the locality contributed to a presumption, the employer was entitled to an instruction that once such a purpose of the journey is shown these facts are irrelevant. Whether under the Idaho law the presumption from ownership disappears on the presumption of rebutting evidence, as in New York Life Ins. Co. v. Gamer, 303 U.S. 161, 171, 58 S.Ct. 500, 82 L.Ed. 726, 114 A.L.R. 1218, or remains as evidence as in Montana, New York Life Ins. Co. v. Gamer, 9 Cir., 106 F.2d 375, 377, need not be considered.
The appellant asked no instruction relative to the first three recited facts. Its requested instruction was concerned solely with the ownership of the car by appellant. It was:
“You are instructed that there is a presumption that the driver of an automobile is the owner’s agent, but this presumption is rebuttable. Thus, if you should find in this case, that the said Rulon D. Hair, at the time of the said accident was using an automobile which was owned by R. J. Reynolds Tobacco Company and L. R. Donnelly, but that the use thereof was not in the furtherance of the business of either of said defendants, but was being used by the said Rulon D. Hair for his own personal business or pleasure, then and in that event the said R. J. Reynolds Tobacco Company and the said L. R. Donnelly would not be liable for any damage caused by the use of said automobile by the said Rulon D. Hair.”
There was abundant evidence to rebut the presumption. The sole evidence of the route of the car was- that the employee was returning from a dance at a distant place with the unfortunate lady, to take her to her home. In this the case is squarely within Magee v. Hargrove Motor Co., 50 Idaho 442, 296 P. 774, 775, where the employee was returning with companions from a dove hunting expedition in the employer’s car when the accident occurred.
So far as concerns the self-serving statements in the two reports of the employee to appellant that he was on “company business” when the accident occurred, the objection that this was but a conclusion of the witness is of no value. He had not been examined as to whether he erroneously thought, contrary to the Magee case, that he was engaged in the employer’s business, because in proceeding to the lady’s home he was also directing the car and carrying his employer’s goods towards the place where he might sell them, to which place he would go after he had taken the lady home.
Because of this condition of the record I have concurred in the holding that appellant was nót entitled to an instructed verdict. With the remainder of the reasoning and holdings .of the majority opinion I concur.