concurring in part and', dissenting in part.
JURISDICTION
I concur with the holding of the majority that the court had jurisdiction of Ford. In this connection the record discloses that from the outset Ford resisted and continues-to resist the action here on the ground that, as a non-qualified foreign corporation it was not subject to the jurisdiction of the-court. The contention presents an important question and in disposing of the matter we first turn to pertinent portions of the record. It appears from the record that the only service of process made upon Ford was-personal service of summons upon E. F.. Nieman, one of its employees, while the said’ Nieman was in attendance at the opening of a new Ford agency at Evanston, Wyoming. A timely motion to quash the return' of service of summons was filed by Ford on the ground that it is a foreign corporation;, owns no property in Wyoming; has not and does not now transact business within this state; and has no agent, officer, or other person here upon whom process can be.served.
*893Attached to the said motion is the affidavit of Nieman, which in substance recites that he is employed by Ford as General Field Manager of the Salt Lake District Sales Office and his assigned duties are promotion of sales of the products of Ford, including therein arrangement for and the handling of relations with independent Ford dealers of Ford products within his district; also, that he is not an officer of Ford and has no duties in connection with claims against Ford.
Counter-affidavits were filed by plaintiff, which in substance set forth that Evanston, Wyoming, is within the area of which Nieman has charge and that on the date in question Nieman was in attendance and carrying out his duties at the grand opening of Aaron Brothers Ford Service, a newly-authorized dealer of Ford products at Evanston, Wyoming. Also present was an assistant to Nieman. Public announcement of the event was made by both Ford and Aaron Brothers.
The matter was submitted on said affidavits and after hearing argument thereon the trial court denied the motion. Our task in reviewing the action so taken by the trial court is made difficult by the paucity of the evidence relating to the activities of Ford in this state. This for the reason that mere service of summons upon Nieman within the state did not in and of itself confer jurisdiction upon the trial court. See Long v. Victor Products Corporation, 8 Cir., 297 F.2d 577, 581; Easterling v. Cooper Motors, Inc., D.C.N.C., 26 F.R.D. 1, 2; West Pub. Co. v. Superior Court of City and County of San Francisco, 20 Cal.2d 720, 128 P.2d 777, certiorari denied 317 U.S. 700, 63 S.Ct. 524, 87 L.Ed. 559; and Minty v. Draper & Company, Inc., D.C. Wyo., 57 F.2d 551, 553. To validate the service it must also appear that Ford, as a foreign corporation, was at the time of service engaging in activities within the state sufficient to make it amenable to jurisdiction of the court from which the process issued.
The problem presented is in two parts. It must first be ascertained whether or not applicable state law means to encompass the challenged service. If this can be answered in the affirmative, then the further question presented is whether or not the state law as applied to the circumstances of the case offends the due process clause of the Federal Constitution. See Lone Star Motor Import, Inc., v. Citroen Cars Corp., 5 Cir., 288 F.2d 69, 72.
As has often been said, each case must depend upon its own facts (International Harvester Company v. Commonwealth of Kentucky, 234 U.S. 579, 34 S.Ct. 944, 945, 58 L.Ed. 1479), and the burden rests upon the plaintiff to establish that Ford was doing business in the state at the time service of process was made. See Confidential, Inc. v. Superior Court In and For Los Angeles County, 157 Cal.App.2d 75, 320 P.2d 546, 549; and Kesler v. Schetky Equipment Corporation, D.C.Cal., 200 F.Supp. 678, 679.
In our approach we prefer first to discuss the limitations of the Federal Constitution laid upon state jurisdiction over a foreign corporation. A myriad of cases and treatises deal with the subject matter (for example see 25 U.Chi.L.Rev. 569; 73 Harv. L.Rev. 909; and 44 Iowa L.Rev. 249); but extensively to review the material would unduly extend this opinion. Suffice it to say that a great evolution in the law has occurred between Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, and the most recent case from the United States Supreme Court of Hanson v. Denckla, 357 U.S. 235, 78 S. Ct. 1228, 2 L.Ed.2d 1283, rehearing denied 358 U.S. 858, 79 S.Ct. 10, 3 L.Ed.2d 92.
The evolution had its genesis in the classic case of International Shoe Company v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 158, 159, 160, 90 L.Ed. 95. It would therefore seem appropriate to set forth some of the pronouncements of that case. In the course of the opinion it is said:
“Historically the jurisdiction of courts to render judgment in personam is *894grounded on their de facto power over the defendant’s person. Hence his presence within the territorial jurisdiction of a court was prerequisite to its rendition of a judgment personally binding him. Pennoyer v. Neff, 95 U.S. 714, 733, 24 L.Ed. 565. But now that the capias ad respondendum has given way to personal service of summons or other form of notice, due process requires only that in order to subject a defendant to a judgment in perso-nam, if he be not present within the territory of the forum, he have certain ■minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ [Citations.]
* * * * * *
"“It is evident that the criteria by which we mark the boundary line between those activities which justify the subjection of a corporation to suit, and those which do not, cannot be simply mechanical or quantitative. The test is not merely, as has sometimes been suggested, whether the activity, which the corporation has seen fit to procure through its agents in another state, is a little more or a little less. [Citations.] Whether due process is satisfied must depend rather upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure. That clause does not contemplate that a state may make binding a judgment in per-sonam against an individual or corporate defendant with which the state has no contacts, ties, or relations. [Citations.]
“But to the extent that a corporation exercises the privilege of conducting activities within a state, it enjoys the benefits and protection of the laws of that state. The exercise of that privilege may give rise to obligations; and, so far as those obligations arise out of or are connected' with' the activities within the state, a procedure which requires the corporation to respond to a suit brought to enforce them can, in most instances, hardly be said to be undue. [Citations.]”
Clearly old concepts were swept away. A new era dawned for permissive reach of “in personam” jurisdiction by the courts of the states. However, one difficulty with the case is that although it speaks of requisite contacts, ties or relations, and sets forth the factors that were said to establish “minimal contacts” for purposes of the case, it furnished little guide as to how the interplay of those or other factors might rationally be utilized in reaching a sound result under other circumstances. Appellee suggests that McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223, reduced the necessities to activities of a single transaction, but we hardly think this is tenable. In the first instance, it has been said that it did nothing more than to uphold a California statute similar to our own non-resident motor vehicle statute. See Kesler v. Schetky Equipment Corporation, supra. But if McGee v. International Life Insurance Co., supra, did intimate a trend for abolition of state lines in the matter, it was soon dispelled by the more recent case of Hanson v. Denckla, supra. In this case it was said at 78 S.Ct. 1238:
“ * * * But it is a mistake to assume that this trend heralds the eventual demise of all restrictions on the personal jurisdiction of state courts. See Vanderbilt v. Vanderbilt, 354 U.S. 416, 418, 77 S.Ct. 1360, 1362, 1 L.Ed.2d 1456. Those restrictions are more than a guarantee of immunity from inconvenient or distant litigation. They are a consequence of territorial limitations on the power of the respective States. However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has had the ‘minimal contacts’ with that State that are a pre*895requisite to its exercise of power over him. * * *”
In any event, it seems clear to us that under the pronouncements made there emerges the general rule that so long as the activities of a foreign corporation are sufficiently qualitative in nature and extent reasonably to show “minimal contacts” with the state and state law on the subject is justly construed and applied to reach those activities for jurisdictional purposes under “traditional notions of fair play and substantial justice,” all demands of due process are satisfied.
With the foregoing concepts in mind, we return to the record made of Ford’s activities here. Aided by those matters of which we take judicial notice, it is reasonable to conclude that Ford entered into a dealer relationship with Aaron Brothers of Evanston, Wyoming, for promotion and sale of its products in Wyoming; that such arrangement for all intents and purposes was a continuing one; that the arrangement so made was in keeping with the state-wide practice of Ford for promotion and sale of its products in Wyoming through such dealers; by such arrangement Ford hopes to obtain and does obtain substantial benefits, financial and otherwise; that in pursuit of its business it sends agents and employees into the state to aid and assist its authorized dealers and we would be blinded to actualities to suppose that the activities shown at Evanston, Wyoming, were sporadic and isolated instances of the aggressive marketing practices of Ford in Wyoming; and lastly Ford and its agents and employees while here are protected by the laws of Wyoming.
In conjunction therewith and in disposing of Ford’s contention, we have also considered other pertinent factors, such as : the interest of this state in providing a forum for its residents; the relative availability of evidence; the relative burden of defense and prosecution in Wyoming rather than at some other place; the ease of access to some alternative forum; and the extent to which the cause of action arises out of Ford’s local activities.
In view of the foregoing and in view of the broadened concept of in personam jurisdiction of the state under the due process clause of the Federal Constitution, it seems clear that the record here was ample to permit the trial court to find and conclude, as it did, that the activities of Ford in this state were, in nature and extent, sufficient to satisfy federal requirements with respect to the matter.
This brings us then to a consideration of the applicable law of Wyoming. The statute involved, § 17-44, W.S.19S7, and now superseded by Ch. 85, § 105, S.L. of Wyoming, 1961, provided in essence “That whenever any foreign corporation transacts business in this state without first” qualifying, it shall be amenable to lawful process issuing out of a state court “in any action or proceedings against said foreign corporation growing out of the transaction of any business in this state.”
With respect to the jurisdictional question, Ford contends that it was not in fact transacting business here within the meaning of the statute and that under any circumstance plaintiff has failed to meet the burden of proof necessary to sustain jurisdiction.
In disposing of the contention it is necessary first to consider just what was intended as the criteria necessary to establish the transaction of business for purposes of the statute. In this we are not aided by legislative definition, and previous decisions of this court are not particularly helpful.
In State ex rel. Eaton v. Hirst, 53 Wyo. 163, 79 P.2d 489, 496; Chittim v. Belle Fourche Bentonite Products Co., 60 Wyo. 235, 149 P.2d 142, 148; and Creamery Package Manufacturing Co. v. Cheyenne Ice Cream Co., 55 Wyo. 277, 100 P.2d 116, 122, we had occasion to consider the activities that go to establish “doing business” under the non-suit statute. In Creamery Package Manufacturing Co. v. State Board of Equalization, 62 Wyo. 265, 166 P.2d 952, *896955, we considered .the matter under the Sales and Use Tax Act. But tests applied for purposes of a penal regulatory statute or taxation statutes are of little assistance to the problem of enforcing civil process. See Jarrard Motors Inc. v. Jackson Auto & Supply Co., 237 Miss. 660, 115 So.2d 309.
Obviously the statute had for its purpose, whenever possible, the furnishing of a local forum to residents of this state who had a grievance against a non-qualified foreign corporation growing out of its business activities here. It seems apparent also that to accomplish its purpose the legislature purposely prescribed a broad standard in order that the statute might receive a reasonable interpretation in keeping with advancements in the law relating thereto and developments in the field of commercial enterprise. In applying the statute such matters are of prime importance. Hoffmeister v. McIntosh, Wyo., 361 P.2d 678, rehearing denied Wyo., 364 P.2d 823.
Also, no citation of authority is necessary to support the proposition that the statute, being remedial, is entitled to a liberal interpretation.
Actually, the term “transacts business” is not susceptible to determination by application of any hard and fast rule and it is not possible for us to supply a ready formula dispositive of the many complexities that are presented in dealing with the question. It seems clear, however, that the term would not embrace casual, isolated, or sporadic transactions of limited duration and extent but beyond that the matter must be “determined largely according to the facts of each individual case.” 20 C.J.S. Corporations § 1920a, p. 151; International Shoe Company v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 159, 90 L.Ed. 95.
We a're cited to many cases in the briefs of counsel to sustain their respective positions and certain it is that divergent results have been reached. However, in view of what has already been said, a lengthy discussion of the cases so cited would seem to serve no particular purpose. It is enough to say that such authorities and others have been reviewed and in this regard we think cases such as Cosper v. Smith & Wesson Arms Co., 53 Cal.2d 77, 346 P.2d 409; Regie Nationale des Usines Renault, Billan-court (Seine), France, v. Superior Court In and For Sacramento County, Cal.App., 25 Cal.Rptr. 530, 531; Amphicar Corp. of America v. Gregstad Distributing Corp., Fla.App., 138 So.2d 383, 384, 385; Lone Star Motor Import, Inc. v. Citroen Cars Corp., 5 Cir., 288 F.2d 69, 72; and Jarrard Motors, Inc. v. Jackson Auto & Supply Co., supra, are ¡Illustrative of activities that can reasonably be said to constitute the transaction of business within a state. Of course, Ford’s activities here as above related differ to some extent from the activities shown in the foregoing cases but nevertheless there is substantial similarity in many respects.
Were we to conclude that the statute before us was so restrictive that it failed to impose jurisdiction over a foreign corporation that engages here in activities, of the quality and extent shown on the part of Ford, we think we would do violence to the plain intent and purpose of the statute. In fact, we find nothing in the statute that indicates a purpose other than to assert jurisdiction over a non-qualified corporation to the extent authorized by the due process clause.
For the reasons stated we agree with the trial court that a reasonable and just interpretation of the statute, when applied to Ford’s activities within this state, brought Ford within its reach for jurisdictional purposes and inasmuch as plaintiff’s complaint was based upon a local incident growing out of those activities, the trial court was fully warranted in asserting its jurisdiction.
Ford further insists that even though we conclude that it was subject to the jurisdiction of the trial court, it was never properly served with summons. The contention is bottomed upon the further provisions of § 17-44, W.S.1957, that relate to service of process. In substance the statute provides under circumstances here that service may *897be made by leaving a copy of the summons with the secretary of state and the mailing of a notice of such service and copy of the process by registered mail to the defendant corporation or that service of process may be made by delivery thereof to the corporation outside the state.
The foregoing statute was enacted in the year 1929. Subsequent to that time we adopted Wyoming Rules of Civil Procedure and Rule 4(d) (4) thereof provides in part:
“Upon a corporation, by delivery of copies to any officer, manager, general agent, or agent for process. If no such officer, manager or agent can be found in the county in which the action is brought such copies may be delivered to any agent or employee found in such county. * * * ”
It will be noticed that this substantially departs from Rule 4(d) (3) of the Federal Rules, from which our rules were taken. The return here shows that there was no officer, manager, general agent, or agent for process found in Wyoming and that as a consequence service was made on Nieman, an agent or employee who was found in Uinta County. With respect to Nieman, the trial court on the evidence before it was entitled to find and apparently did find that even though Nieman was not authorized by Ford to accept service, his position of responsibility was such that the process served upon him reasonably afforded opportunity to Ford to defend in the action.
We think the method of service set forth in the statute is not exclusive and that the method provided by our rules must be considered in conjunction with and cumulative of the method of service upon non-qualified foreign corporations. Toedman v. Nooter Corporation, 180 Kan. 703, 308 P.2d 138, 143.
Ford relies principally upon Fletcher, Cyclopedia of Corporations (Perm.Ed.), and upon Goodman v. Leitman, 20 Misc.2d 549, 194 N.Y.S.2d 561, but those authorities do not seem apropos. As we pointed out, the provision of the rules is cumulative and therefore may be utilized and such alternative method apparently was not present or considered in the authorities cited.
Due process requires only that the representative served be a responsible representative of the foreign corporation. Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 72 S.Ct. 413, 418, 96 L.Ed. 485, rehearing denied 343 U.S. 917, 72 S.Ct. 645, 96 L.Ed. 1332.
THE MERITS OF THE CASE
With respect to the question of whether or not the verdict and judgment against Ford can be sustained on the record made, I agree with the majority that the expert testimony offered to establish negligence on the part of Ford was sufficient to warrant submission to the jury of the issue of negligence. I am unable to agree, however, that the record discloses substantial evidence sufficient to warrant the inference that the negligence of Ford was an efficient concurrent cause of injury to plaintiff.
To point up the basis for my difficulty in accepting the views of the majority it is necessary for me to set forth additional matters appearing of record.
In this litigation plaintiff undertook a difficult and exacting task. To succeed in his theory of joint liability it was necessary to establish gross negligence on the part of Peterson in causing the car to leave the highway and upset. To recover against Ford he had to prove that despite the gross negligence of Peterson the negligence of Ford was an efficient concurrent cause to the upset. This for the reason that it was incumbent upon plaintiff to show that his injury “would not have resulted in the absence of either” cause. Checker Yellow Cab. Co. v. Shiflett, Wyo., 351 P.2d 660, 667.
To accomplish his purpose he charges in his complaint, among other things,, that Peterson’s negligence consisted of driving the car at an unlawful, dangerous and excessive rate of speed in a “zigzag” course upon the highway; that he operated the car in this fashion when he knew it was unsafe; and that he was under the in*898fluence of intoxicating liquor and was intoxicated. Those charges were never withdrawn or modified in any way by plaintiff. As will be seen, I attach particular significance to those charges for the reason that Ford, in its answer, admitted such gross negligence on the part of Peterson.
The charge of negligence against Ford was that the wheel was defectively manufactured and as a result the wheel broke while the car was being driven by Peterson, causing the wreck. Nothing was alleged concerning a flat tire. Ford denied the charge.
Of significance here also is the fact that Peterson in his answer denied the charges of plaintiff and set up a cross-claim against Ford for damages to his car and damages to his person, claiming negligence on the part of Ford in the manufacture of the wheel. He alleged that the defect in the right-front wheel from such negligence, through no fault of his, caused the wheel of the automobile to become “broken and detached therefrom just as he was entering an ‘S’ curve, by reason of which he was unable to manage, control or turn said vehicle which plunged off the highway and off the travelled portion of the road,, colliding forcefully with the barrow pit and an irrigation ditch adjoining said highway with great force and violence.” At the conclusion of the evidence the trial court directed a verdict in favor of Ford against Peterson.
Turning to the evidence, the large “S” curve on the highway mentioned by the majority was approximately one mile distant from the bar where the unfortunate venture commenced. The first turn on the “S” curve was a right-hand turn. The second turn on the “S” curve was a left-hand turn some one-quarter of a mile distant from the right-hand turn. Right here I think it appropriate to mention that Peterson, from the time he purchased this car new in October 1957, had trouble in controlling the car. He said it was inclined to pull to the right; that “it kept drifting off to the right”; that he had trouble on “twisty, turny roads”; and particularly on a left-hand curve it would pull to the right. Because of this he had never driven the car over 65 miles per hour prior to the accident. The negligence of Ford was not shown in any way to be connected with this difficulty and the evidence shows that Peterson on the evening of the accident telephoned from the bar to make arrangements with the dealer to inspect and service the car.
Upon leaving the bar, Peterson, with an open can of beer in his hands, got into the driver’s seat. Hoopes sat next to him and plaintiff sat next to Hoopes. Peterson immediately accelerated the car and just before they got into the right-hand turn of the “S” curve Hoopes looked at the speedometer and Peterson was driving approximately 85 miles per hour. He remonstrated but Peterson said he would do the driving. After they were out of the first turn and were proceeding toward the left-hand turn of the “S” curve, plaintiff looked at the speedometer and Peterson was still driving 85 miles per hour. He also remonstrated but again Peterson said he would do the driving and plaintiff then shouted something like “let me out” or “look out.” Neither Hoopes nor plaintiff testified that Peterson reduced his speed in the least despite their protests.
To develop a little further the state of the record before us as I understand it, plaintiff’s efforts now to reduce Peterson’s condition from one of intoxication to a “relaxed” condition are not open to him. On the basis of the pleadings the issue of Peterson’s intoxication was settled as between plaintiff and Ford. There was no such issue to be passed upon by the jury. True, with the indulgence of the court as against Ford, he could introduce evidence of the circumstances with respect to the intoxication (see 53 Am.Jur., Trial, § 105; and 9 Wigmore on Evidence, § 2591, p. 589 (3d Ed.)) but “Having stated his position in the pleadings, he cannot alter it at this time.” Dame v. Mileski, 80 Wyo. 156, 340 P.2d 205, 209; see also Board of County Commissioners of County of Fremont v. *899State ex rel. Miller, Wyo., 369 P.2d 537, 540.
In Kerr-McGee Oil Industries, Inc. v. McCray, 89 Ariz. 307, 361 P.2d 734, 736, it is said:
“ * * * No citation of authority is needed for the proposition that facts admitted in the pleadings will be accepted as true both here and in the court below.”
In Alberts v. American Casualty Co. of Reading, Pa., 88 Cal.App.2d 891, 200 P.2d 37, 40, it is said:
“ * * * The allegations of the complaint admitted by the answer are treated as an admitted fact on appeal. [Citation.]”
In Lifton v. Harshman, 80 Cal.App.2d 422, 182 P.2d 222, 228, it is stated:
“When allegations in a complaint are admitted by the answer (a) no evidence need be offered in their support; (b) evidence is not admissible to prove their untruth; (c) no finding thereon is necessary; (d) a finding contrary thereto is error.”
See also Fidelity Finance Co. v. Westfall, 127 Neb. 56, 254 N.W. 710, 711; Lutz v. Frick Company, 242 Ind. 599, 181 N.E.2d 14, 15; Precision Extrusions, Inc. v. Stewart, 36 Ill.App.2d 30, 183 N.E.2d 547, 556; Hill v. Federal Trade Commission, 5 Cir., 124 F.2d 104, 106; Edmonston v. Holder, 203 Okl. 189, 218 P.2d 905, 909; and 71 C.J.S. Pleading § 59, p. 150.
The same thing is true of plaintiff’s efforts here to reduce the speed of the car substantially below 85 miles per hour. Plaintiff’s testimony concerning the speed was not made on the basis of an estimate but from actual observation of the speedometer. Having so testified he is bound by it and he will not be heard here to say that this car was not traveling at that speed when it came out of the first turn. Chicago, B. & Q. R. Co. v. McPhillamey, 19 Wyo. 425, 118 P. 682, 686.
In the light of the foregoing it seems at least probable that this accident was inevitable without contribution of Ford. To avoid' the accident Peterson of necessity had to' pull this car to the left upon coming out of the right-hand turn of the “S” curve and approaching the left-hand turn. His ability to meet this demand was obviously affected by the inclination of the car to drift and. pull to the right and particularly on a left-. hand curve; by his intoxication; by his speed and driving in a “zigzag” course; by his irritation and distraction from the remonstrances of his companions; and by the open can of beer either in his hand or between his legs. These facts, standing alone, are such that to me no reasonable jury could find that this accident would not have happened but for the negligence of Ford.
Of course, it is true that Peterson’s extraordinary version of the affair, accepted by the jury, that a rivet “popped” out of its hole and caused a flat tire which in turn affected his driving is within the realm of possibility. However, there is no evidence in this record that I can find which would permit the jury to adopt Peterson’s version as more probable than the version that this accident was inevitable, in any event, through Peterson’s negligence alone. Under those circumstances the verdict cannot stand.
Many years ago in Hartung v. Union Pac. R. Co., 35 Wyo. 188, 247 P. 1071, 1073, we said:
“ * * * Two or more possible theories might be adopted to explain the death of the decedent. But there is no evidence in the case that would authorize us to adopt one in preference of another. And it is well established that, where two inferences may be deduced, one of which authorizes recovery and the other not, and both inferences are equally reasonable, the inferences meet and destroy each other; neither has any probative force, and one cannot be arbitrarily chosen in preference of the other. * * * ”
See also Northwest States Utilities Co. v. Ashton, 51 Wyo. 168, 65 P.2d 235, 238, re*900hearing denied Northwest States Utilities Co. v. Brouilette, 51 Wyo. 132, 65 P.2d 223, 69 P.2d 623; White v. Maverick Production Co., 63 Wyo. 452, 182 P.2d 818, 822; General Motors Corporation v. Wolverine Insurance Company, 6 Cir., 255 F.2d 8, 9; and Price v. Ashby’s Incorporated, 11 Utah 2d 54,, 354 P.2d 1064, 1065.
But should I be mistaken in this view, I still cannot agree that the verdict against Ford can be sustained. The majority view is bottomed on Peterson’s supposititious statement that he figured “it must be a flat tire” or felt like a flat tire that caused him to lose control of the car with the result that the car left the highway. Unlike my associates, I can find no corroboration of Peterson’s nebulous statements concerning the tire and as a result I have difficulty in accepting those statements, even though believed by the jury, as sufficient substantial evidence to sustain the verdict.
In the first instance, in the light of common experience, how often have all of us in driving down the highway “felt” as if we had a flat tire only to discover on investigation that such tire was fully inflated?
Secondly, while I agree to the general proposition that the credibility of Peterson was for the jury, that does not relieve us of reviewing the entire record and “analyzing the evidence in the light of reason and human experience and giving consideration to the motives and propensities which tend to influence or prompt human action.” Montgomery Ward & Co. v. Arbogast, 53 Wyo. 275, 81 P.2d 885, 892. Here Peterson was vitally interested in the outcome of this litigation. In fact, he actively participated in providing expert testimony for plaintiff. His version concerning the tire was entirely at variance with the version under his own pleadings and he was actually impeached in this regard. In addition, I think the record shows his testimony was inherently improbable.
We have in the past refused to accept the testimony of a witness as sufficient to sustain a finding when an interested witness failed to testify in a direct and positive manner (In re Stringer’s Estate, 80 Wyo. 389, 343 P.2d 508, 519, rehearing denied 80 Wyo. 389, 345 P.2d 786); when contrary to previous-sworn statements (Washakie Livestock Loan Co. v. Meigh, 50 Wyo. 480, 62 P.2d 523, 526, 107 A.L.R. 1063); and when inherently improbable (Montgomery Ward & Co., supra; and Steadman v. Topham, 80 Wyo. 63, 338 P.2d 820, 825).
The one important piece of physical evidence here is the tire itself. That tire was undamaged. According to the uncontra-dicted testimony of the witness Stilley, a representative of the manufacturer of the tire, it is hardly to be expected that this tire, if flat, could undergo the full weight of the car on impact and not show some damage.
Also, to me, it is hardly to be supposed that if Peterson’s difficulty were a flat tire he would have said nothing to plaintiff and Hoopes about it at the time the car started to pull off the highway or immediately thereafter and would have so responded to plaintiff’s inquiry about “too much Adolph Coors.”
Thus, without corroboration from other witnesses or the physical facts of Peterson’s extraordinary version of the manner in which Ford’s negligence became an efficient concurrent cause in his loss of control of the car, I feel constrained to say that it is not of sufficient probative force to constitute the substantial evidence necessary to sustain the verdict.
I would reverse the judgment with direction to dismiss the complaint.