Cеrtiorari bringing .up the record in Waters v. Hays et al.,
The plaintiff-relator, Waters, denies that our decision called for any such result. In the present certiorari proceeding he assails the second oрinion of the Court of Appeals contending that instead of conforming to it conflicts with our aforesaid decision, in this: (1) it holds our opinion ruled the plaintiff’s evidence was insufficient to take the casе to the jury, when in fact we made no such ruling; (2) it holds our opinion ruled proof showing automobile dealer’s license plates were displayed on the car at the time of' the collision did not constitute substantial evidence that the car was then being used by Hays in the service of Steinbruegge, when in fact we made no such ruling.
.Respondents’ opinion-under review (
The respondents held in their first opinion (103 S. W. (2d) l. c. 503)"that the proof of Steinbruegge’s ownership of the car plus the fact that Hays, the driver, was his regular employee, raised a presumption that Hays was acting in the scope of his employment; that that presumption remained in thе case to the end unless it was destroyed by positive, unequivocal and unimpeached testimony to the contrary; and that no such' countervailing evidence had been introduced. On this theory respondents sustained the action of the trial court in refusing defendants’ instruction in the nature of a demurrer to the evidence, and affirmed the judgment for plaintiff.
When the case was brought here on certiorari the then relator, Steinbruegge, contended resрondents’ opinion was in conflict with Guthrie v. Holmes,
But we also quoted other parts of the Guthrie case, including one taken from Daily v. Maxwell,
Having thus fixed the rule, our Steinbruegge opinion went on to say that upon the introduction by plaintiff of substantial evidence showing Steinbruegge was the owner of the car, and that Hays was in his general employ and was driving the car when it struck the plaintiff, a presumption arose thаt he was acting within the scope of his employment; but'that when the defense introduced substantial evidence tending to show the contrary, the presumption disappeared. And so the opinion of thе respondents reported in
Respondents considered this a pronouncement that on the whole record a demurrer to the evidence should have been sustained. They so declare in their opinion here under review (118 S. W. (2d) l. c. 41) and reversed the case. But they have misinterpreted our opinion. On certiorari we never assume to tell a Court of Appeals how it should decide a case on thе merits. We are concerned only with questions of conflict on particular issues before us. [State ex rel. Ocean Accident & Guarantee Corp. v. Hostetter,
But we went further and said: “ Of course, the evidence introducеd by plaintiff, from which the presumption arose, did not disappear. On the contrary, the fixed rule with reference to the evidence for consideration on demurrer must be followed.” Then in the second paragraph following the opinion explains that in the Guthrie case the plaintiff failed to introduce any further evidence after his presumption had been destroyed by defendant’s evidencе, and that this court thereupon followed the fixed rule with reference to the consideration of evidence on demurrer, and found there was no substantial evi: dence showing the employee was within the scope of his employment.
*448 This means that although the presumption may be overcome and take- flight, yet the evidence which gave rise to it remains in the' case for the consideratiоn of the court on demurrer. If there is no evidence for plaintiff except the bare minimum required to support the presumption, then if the presumption be destroyed, that underlying evidence alone will not be enough to raise an inference to the same effect and make a prima facie case for the jury. [Bond v. St. L.-S. F. Ry. Co., supra, 315 Mo. l. c. 1001-2, 288 S. W. l. c. 782.] But if there be other evidence, it may aid that required to raise the prеsumption, and the whole considered together sometimes may be Sufficient to support the necessary valid inference, even though the presumption has been overcome by defendant’s evidence.
There was other evidence in the Waters case bеlow besides the mere proof of Steinbruegge’s ownership of the car, and the fact that it' was being driven by his general employee, Hays. Some of this evidence was, for instance, that the car carried Steinbruegge’s dealers license plates, which the statute, Section 7764(c), Bevised Statutes 1929 (Mo. Stat. Ann., p. 5186), says shall be used only in the business of the dealer and not for his private purposes or those of his employees. Belator contends this fact justifies an inference that the car was not being used in violation of law at the time, but was being used by Hays in the interest of Steinbruegge’s business for the purpose of demonstrating the car to the friends in whose company he was before and when the collision occurred. Both respondents’ opinions point out the evidence shows Hays was authorized to sell the kind of car he had on the occasion.
We do not now assume to pass on the probative effect of all the facts in this record, considered together; neither did we when the case was here before. Our only ruling is that our former opinion did not foreclose respondents’ right tó determine whether the evidence as a whole made a prima facie case for the jury. Inasmuch as their last opinion (118 S. W. (2d) l. c. 41) holds to the contrary, the record is . quashed.