(dissenting).
In this case the burden was upon the plaintiff to prove that Hardy had the consent of his employer, Sturgis, for the actual use of the truck at the time of the accident. Reading the evidence in the light most favorable to plaintiff, I am unable to find any substantial evidence to support the verdict.
The insured, Sturgis, was engaged in the operation of a lumber mill near the town of Fordyce. In this business he used a fleet of 14 logging trucks for hauling logs from the woods to the mill. The route from the scene of the logging operations to the mill ran through the town of Fordyce. Hardy was employed as driver of one of the logging trucks hauling logs from the woods to the mill. Because of the shortage of equipment and labor caused by the war, Sturgis permitted his truck drivers on leaving the mill at the end of a day's *669work to drive the trucks to their homes in Fordyce, to keep them there at night, and to leave Fordyce on the following morning for the place where logs were loaded for transportation to the mill. This arrangement saved the expense of providing transportation for the truck drivers between Fordyce and the mill at the end of a day’s operations and at their beginning on the following morning. The arrangement added nothing to the mileage which the trucks traveled and did not increase their gasoline and oil consumption, important considerations as all who drove an automobile during the war well remember. On the evidence there is no room for doubt that this arrangement was a temporary expedient due to the shortage of manpower and equipment, and that it was a reasonable and economical one.
The particular truck involved in the accident out of which this litigation arose was a logging truck consisting of a tractor furnishing motive power and a trailer for carrying logs. Sturgis had succeeded in. securing priority orders for three trucks that he needed in his business. He was able to get only this one new truck to which he assigned Hardy as driver. During the war, trucks, tires, and gasoline were rationed, and the supplies of all were short. The tractor itself was a six-wheel affair with two front and four rear wheels. It was not designed for the transportation of passengers. It was not intended for use as a pleasure vehicle. Its consumption of gas and tires was high.
The uncontradicted evidence is that all the truck drivers including Hardy were forbidden by Sturgis to drive any of the logging trucks except for the purpose of hauling logs and supplies to the mill. The order given the drivers required them to park the trucks at their homes when they returned with them from the mill at the close of work at Saturday noon or at 5 o’clock in the afternoon on other weekdays and to leave them there until they left to proceed with logging operations. The evidence also establishes the fact that in spite of positive orders to the contrary Hardy, on returning to his home at Fordyce, was in the habit of detaching the tractor from the trailer and driving the tractor around Fordyce on errands of his own. Hardy testified that he drove the tractor about Fordyce whenever he wanted to drive it usually at night, on trips from the residence at which he roomed to restaurants serving negroes and places selling beer, all in Fordyce. Members of the Fordyce police force testified that frequently they saw Hardy driving the tractor, usually in the colored section of Fordyce and usually at night. Other witnesses on occasions had seen Hardy driving the tractor around Fordyce on Saturday afternoons and on rainy days when in their opinion logging operations were closed because of the weather. No witness testified that Sturgis had any knowledge of Hardy’s use of the tractor in violation of his orders. As to this, the most that any witness said was that Sturgis could have seen Hardy driving the truck in the business section of Fordyce on one or two occasions when Hardy was not engaged in the business of his employer. Sturgis did not live in Fordyce. He spent the greater part of his time at the mill, although once or twice a week he spent the night at a hotel in Fordyce, and was in the city on business at other times. His trucks were serviced at a certain garage at Fordyce, and the operator of the garage was employed by Sturgis to keep an eye on the trucks and to report to him if any of his drivers were using them contrary to his orders. Sturgis himself occasionally visted the homes of his truck drivers to see if the trucks were parked where they were supposed to be, and when he discovered that one of the trucks was being used in violation of his orders he discharged the driver. On one occasion he found that the truck driven by Hardy was not parked at Hardy’s residence, and upon investigation he found it at the garage where it was being serviced. He denied that he had any knowledge of Hardy’s use of the truck in violation of his instructions.
The accident in which plaintiff was injured occurred about dark on a Saturday afternoon. On that afternoon Hardy had detached the tractor from the trailer and picked up a party of his friends and was en *670route to a negro night club some distance from Fordyce on a beer drinking party. Sturgis had no knowledge of the actual use of the truck by Hardy on this trip, and as soon as he was advised of the accident Hardy was discharged.
On this evidence the jury was permitted to infer that Sturgis knew of Hardy’s use of the truck in Fordyce in violation of his orders because others saw Hardy with the truck, and because Sturgis, had he kept a closer watch on Hardy’s goings and comings, could have known of it. Having drawn this inference the jury was then permitted to draw the further inference that Sturgis consented to Hardy’s use of the truck in Fordyce in violation of his orders; and, having drawn the inference that Sturgis consented to this use of the truck by Hardy, the jury was then permitted to ■draw from that inference the further inference that Hardy had the permission of Sturgis to take a party of his friends away from Fordyce several miles into the country ■on a beer drinking party; that is to say, from the fact that the truck driver violated his employer’s instructions and used the truck when he was ordered not to use it, he therefore had the implied consent of the ■owner to use the truck for any purpose whatever at any time and place. All this is to read out of the policy of insurance the provision which relieved the insurer from liability unless Hardy had the permission of Sturgis for the actual use of the truck at the time of the accident, to place the burden -of proof upon the insurer instead of upon the plaintiff, and to ignore the undisputed proof that Hardy’s use of the truck at the time of the accident was a prohibited use. In my opinion far more evidence than can be found in this record is necessary to justify the inference of an implied consent to do not once or occasionally but continuously a prohibited act, an act prohibited not only by the express orders of the insured but doubtless by the regulations pertaining to the use of gasoline in motor vehicles during the war.
The judgment ought to be reversed for want of any substantial evidence to support the jury’s verdict.