doing violence to the language used.

reached in Thaxton's Guardian et al. v. Wal-. ters, Adm'r, 130 Ky. 235, 113 S. W. 118, where the substance of the statute was similar to the one under consideration. The same rule was adopted where similar principles were involved in Davenport v. Brooks, 92 Ala. 627, 9 South. 153; Daniel v. Phelps, 86 Ga. 363, 12 S. E. 584; Chapman v. McGrath, 163 Mo. 292, 63 S. W. 832.

In the absence of language which will reasonably warrant it, we would not be justified in resorting to such a strained construction as contended for, though personal sympathy always appeals to us in such cases in our desire to aid minor children.

For the reasons stated, the judgment is reversed, and the cause remanded, for further proceedings in harmony with the views herein, expressed.

Reversed and remanded.

SCOTT, J., dissents.

(60 Colo. 47)

GATION CO. (No. 8110.) (Supreme Court of Colorado. Nov. 1, 1915.) 1. APPEAL AND ERROR 882-INCOMPETENT EVIDENCE-ADMISSION-WHEN NOT REVERS

IBLE ERROR.

In an action for personal injuries sustained by being run down by defendant corporation's automobile in charge of its driver, the admission of incompetent evidence that a casualty company was behind defendant was not reversible error, where such evidence was elicited by the defense from its own witness.

Had the Legislature of 1903 intended to change this law in this respect from what it said prior thereto by extending its provisions to the estate of a deceased woman, we think it would, in some manner, have indicated this intention by a change in the language. Not having done so, we must conclude that they intended it to remain as theretofore, and to apply to estates of deceased husbands only. This position is strengthened by the fact that in case the wife is living, no provision is made for the children. It is only in event of her death prior to the husband's that they are to have an allowance. Hence if the word "decedent," as used in this section applies to the wife, and for this reason a children's allowance is provided therefor in case of the death of the husband, then the word "widow," following, must, of necessity, apply equally as well to the husband. It is agreed that the deceased had a husband, although a second one, living, at the time of her death, but we do not think it was intended to transpose the meaning of either of WARD v. TELLER RESERVOIR & IRRIthese words. In addition to the context and the words themselves as therein used, there are many reasons which sustain this conclusion. Speaking generally, the husband is the head of the family, and while there are exceptions to the rule, the business from which the family derives a livelihood is usually conducted in his name, and the liabilities therefor are standing against him. Such being the case, and he usually being the principal breadwinner for the household, it was evidently thought advisable to make some arrangements out of his estate for his children in case of his death where his wife's death preceded his. Were she living, she, of course, would be entitled to this allowance; but such is not always the case when applied to the wife's estate, which most of the time is a separate identity, and which usually has no such liabilities existing against it, and in case of her departure quite often the breadwinner of the family, the husband, is left with the children and, far more often, is much more able to battle with the world upon their behalf than the mother who has passed away. 'Tis true, there may arise cases like the one under consideration where the father of the child has gone before, and quite likely in such cases there ought to be arrangements made for the care of the child out of the estate of 4. the mother, in preference to having it all consumed by her obligations. There likewise probably ought to be arrangements made for the child in case the wife is a stepmother, regardless of which fact the allowance, as the law now exists, all goes to her; but had the Legislature had these matters in mind and thus intended, we are of opinion that it would have thus stated in some appropriate language. A similar conclusion was

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. 882.]

ERROR

2. APPEAL AND ERROR 1048-INCOMPETENT
TESTIMONY
-WHEN HARMLESS.

CROSS-EXAMINATION

Permitting the cross-examination of the witness on such subject by plaintiff was not material error, since whatever prejudice defendant might have sustained had already been created by the evidence as elicted by defendant.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 4140-4145, 4151, 41584160; Dec. Dig. 1048.] 3. MASTER AND SERVANT 332-INJURIES TO THIRD PERSONS-CHAUFFEUR-SCOPE OF AUTHORITY-QUESTION FOR JURY.

The question whether or not the chauffeur is acting within the scope of his authority while driving his employer's car is generally one of fact for the jury under proper instructions.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1274-1277; Dec. Dig. 332.]

EVIDENCE 588-UNCONTROVERTED EVI

DENCE
-EFFECT.

CIRCUMSTANCES

CONTRADICTION

The positive and not directly controverted testimony of a witness does not establish the fact testified to so as to be binding on the jury, where the surrounding circumstances of the case can reasonably be said to contradict the witness; it being in such case the province of the jury to determine the relative weight of such testimony and circumstances.

[Ed. Note. For other cases, see Evidence, Cent. Dig. § 2437; Dec. Dig. 588; Witnesses, Cent. Dig. § 1164.]

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

5. MASTER AND SERVANT 330-INJURIES TO the usual proceedings on appeal without a new THIRD PERSONS-CHAUFFEUR-SCOPE OF AU-trial being had, the failure to retry did not afTHORITY-PRESUMPTION-BURDEN OF PROOF. fect the right to review, since the Code of In an action for personal injuries sustained Civil Procedure contemplates that the substance, by plaintiff through being struck by defendant and not the mere form, of judicial proceedings, corporation's automobile while driven by its shall be regarded in determining the rights of chauffeur, it appeared that the automobile was parties. used exclusively in the business of the company and that the chauffeur was employed by the month for the sole purpose of driving, repairing, and caring for the car in the usual manner. Held, that such facts raised the prima facie presumption that the chauffeur was acting within the scope of his authority at the time of striking plaintiff, shifting the burden of proof on that issue to defendant, since the true facts were presumed to be peculiarly within the defendant's knowledge.

SCOTT, J. The automobile of the defend[Ed. Note.-For other cases, see ant company, driven by its chauffeur, run Cent. Dig. § 73; Dec. Dig. 53. down and injured the plaintiff, who was at For other definitions, see Words and Phrases, the time attempting to board a street car First and Second Series, Presumption.] that had stopped at the usual place for he 7. MASTER AND SERVANT 305-INJURIES TO purpose of discharging and receiving passenTHIRD PERSONS-CHAUFFEUR-INSTRUCTION gers. The chauffeur testifies that he came

er the particular act or omission of the servant, causing the injury for which the master is sought to be held liable, was committed within the scope of the servant's employment. This can be determined by no rigid rule, but rather from the surrounding facts and circumstances of the particular case.

[1, 2] What was in the mind of the court in this case, and his reasons for granting the motion for a new trial, will be found in his statement made at the time, as follows:

"A. He got his pay every month while in the company's employ. I asked my son to see Mr. bill or some other expense, which he told me aftWard and find out if we could pay his doctor erward he had done, and we wrote a letter to the company, I wrote a letter to the company, asking the company to reimburse Mr. Ward at least for his physician and his expense at the hospital, and wrote the insurance company to that effect."

It is true that, after the foregoing testimony was given, counsel for plaintiff asked the witness E. C. Teller, secretary of the defendant company, the following question:

Certainly the plaintiff was in no way responsible for this testimony, and it should not be charged as an error against him. A "The court has no doubt about the correct-party litigant cannot inject error into a trial ness of the contention of the defendant, the and then take advantage of it. Teller Reservoir Company, in this case. The court would like very much if it could have seen its way clear to have sustained this verdict. It crept out in the trial that the insurance company was behind the Teller Reservoir Company, and that hence the reservoir company would have had no part of the judgment to pay if it had been rendered against it, and I have not much doubt but what that fact influenced the jury largely. But the proposition that the chauffeur at the time of the occurrence of this accident was acting in direct opposition to express instructions, that he was using the automobile contrary to his right, contrary to his authority, that he was in no manner performing the duties of the defendant, the Teller Reservoir Company, and was not acting within the line of his duty, and was not acting within the scope of his authority, is beyond all dispute. The entire evidence uncontradicted goes to that effect.

"The court in the first instance attempted to save the case to the plaintiff by overruling a demurrer to the evidence at the close of the plaintiff's case, and I believe that, if the case had stood there as it was, then perhaps the court might have been sustained, but when the defense came in and all of the evidence uncontradicted went to establish the fact that the chauffeur practically stole the machine out of the garage, at least took it without any right, as testified to by himself, the garage man, and all the other witnesses, it left the case standing undisputed that upon doing so he was not in the discharge of his duty or in the line of his duty, and to let this verdict stand would be contrary to both the law and the evidence as I view it."

In this statement there is obvious error as

It relates to the question of the suggestion of casualty insurance. If there was error in

this respect, it was not error caused by the

plaintiff.

This matter was brought to the attention of the jury by John C. Teller, president of the defendant company, the principal owner of its stock, and in general charge of its business. And this upon direct examination by defendant's counsel, without, however, any suggestion from such counsel as to the question of insurance. This testimony was as fol

lows:

"Q. At the time of your conversation with Mr. Palmer, had suit been brought against you personally? A. I would not be positive. I think it had. I had been trying to call him by 'phone and tell him that I was not the proper one to bring suit against, it would, have to be the insurance company."

And further:

"Q. At that time and place when you had a conversation with Mr. Ward, did or did you not say as follows: 'If you can get an adjustment of this matter, do so, because there is an insurance company back of it.'"

Objection was made to this question and sustained.

Even though this question under the circumstances of the case be held to be improper, it was not material error, for the president of the defendant company had testified to the fact of insurance, and the mischief, if any, had been done before the question was asked.

The finding of the court that "the chauffeur was at the time of the accident in no manner performing the duties of the defendant company, and was not acting within the line of his duty or the scope of his authority, is beyond all doubt," is not justified by the testimony.

[3] Beside, the question as to whether or not the chauffeur was acting within the scope of his authority is generally one of fact for the jury under proper instructions, and not a question of law for the court.

Marshall v. Taylor, 168 Mo. App. 240, 153 S.
W. 527; Burger v. Taxicab Motor Co., 66

Wash. 676, 120 Pac. 519; Bennett v. Busch,

75 N. J. Law, 240, 67 Atl. 188; Shamp v.

Lambert, 142 Mo. App. 567, 121 S. W. 770; Kneff v. Sanford, 63 Wash. 503, 115 Pac. 1040.

A very complete review of the authorities of Ritchie v. Waller, 63 Conn. 155, 28 Atl. upon the question will be found in the case 29, 27 L. R. A. 161, 38 Am. St. Rep. 361. The rule there adopted seems well fitted to the case at bar. The court said:

"Applying these principles to the case at bar, the question for the court below was whether or not Blackwell, for the time being, totally departed from the master's business and set out upon a separate journey and business of his own. If the rule of law were that any deviation by the servant 'to carry some business of his own into effect' was of itself such a departure, the above question would be one of law. But this, as we have seen, is not the rule

"Q. And he was paid by the company during of law. To decide the question in a case like all times?"

the present, the trier must take into account, This referred to the chauffeur. The an- tent and nature relatively to time and place and not only the mere fact of deviation, but its exswer to this question was as follows:

circumstances, and all the other detailed facts

which form a part of and truly characterize the, acting within the scope of his authority. deviation, including often the real intent and The reason for the rule by courts so holding purpose of the servant in making it. Without spending more time upon this point, we think is quite concisely stated in Long v. Nute, 123 the above question is one of fact in the ordi- Mo. App. 204, 100 S. W. 511, as follows: nary sense, and that the case at bar clearly falls within the class of cases where such question is strictly one of fact to be decided by the trier."

[4] We think it is very clear under the testimony in this case that fair-minded men might reasonably differ as to whether or not the chauffeur was, at the time, acting with in the scope of his employment; that is to say, was he, in the driving and use of the automobile at the time, acting within the express or implied authority conferred upon him, considering the nature of the services required, the instructions given, and the circumstances under which the chauffeur was acting.

Upon this point there are circumstances apparently in conflict with positive testimony in the case. In such cases this court has in Victor v. Smilanich, 54 Colo. 479, 131

Pac. 392, stated the rule to be:

"Where a servant, who is employed for the special purpose of operating an automobile for the master, is found operating it in the usual manner such machines are operated, the presumption naturally arises that he is running the machine in the master's service. If he is not knowledge of the master, and the burden is on so running it, this fact is peculiarly within the him to overthrow this presumption by evidence which the law presumes he is in possession of. It would be a hard rule, in such circumstances, to require the party complaining of the tortious acts of the servant, to show by positive proof that the servant was serving the master and not himself, and the fact that the chauffeur made a detour from the direct route from defendant's home to the fair grounds does not change the presumption or relieve the master's liability for injuries caused by careless driving. 20 Am. & Eng. Enc. of Law, p. 166. We think the instruction was a proper one in the circumstances shown by the evidence."

Baruch, 103 App. Div. 577, 93 N. Y. Supp. 161; Huddy on Automobiles (3d Ed.) §§ 268, 269; Kneff v. Sanford, 63 Wash. 503, 115 Pac. 1040; Shamp v. Lambert, 142 Mo. App. 567, 121 S. W. 770; Vanneman v. Walker Laundry Co., 166 Mo. App. 685, 150 S. W. 1128; Trout Auto. Co. v. People's Gaslight Co., 168 Ill. App. 56; Bennett v. Busch, 75 N. J. Law, 240, 67 Atl. 188; Marshall v. Taylor, 168 Mo. App. 240, 153 S. W. 527; Burger v. Taxicab Motor Co., 66 Wash. 676, 120 Pac. 519; David's Law of Motor Vehicles,

As supporting this doctrine, see Stewart v.

"It does not always follow that, because positive testimony of a witness is not directly controverted, a jury must treat such evidence as true. A witness may be contradicted by circumstances, as well as by statements of others contrary to his own. In such cases, neither courts nor juries are bound to refrain from exercising their own judgment as to the probative value of his testimony. 30 Enc. 1068. When circumstantial evidence is of a nature from which it can be reasonably inferred that it contradicts the direct and positive testimony of witnesses, it is the province of the jury to de termine the weight to which such evidence is entitled. United States v. Pacific Express Co. $ 225. Authorities are cited to the contrary, (D. C.) 15 Fed. 867. In many instances evi- but we think the above conclusion is susdence to establish a fact is circumstantial. If tained by the better reason and the greater it is of sufficient strength and force, considering the surrounding circumstances and conditions, to justify a reasonable and well-grounded inference, by reasonable men, that the fact in dispute is thus established, the question should be left to the jury to determine. C. & F. Lumber Co. v. D. & R. G. Ry. Co., 17 Colo. App. 275 [68 Pac. 670: Colo. Midland Ry. Co. v. Snider, 38 Colo. 351 [88 Pac. 453]."

[5] It is undisputed that the automobile was owned by the defendant company; that it was used exclusively in the business of the company; that the chauffeur was employed by the month; and that his sole duty was to drive, repair, and care for the automobile. Upon this point the president of the defendant company testified:

weight of authority. We are not to be understood as saying that such prima facie case is conclusive, for it is always subject to be overcome by evidence to the contrary. But it sufficiently raises the issue of fact, to be determined, as any other issue of fact, upon all the surrounding facts and circumstances.

[6] It is in law a presumption, and “presumptions" are rules of convenience based upon experience or public policy, and established to facilitate the ascertainment of truth in the trial of causes. Except in the few instances of conclusive presumptions, one is not as a matter of law stronger or weaker "The automobile was owned by the company than another. The whole case is then thrown and used for the benefit of the company. I had open to be decided as a fact upon all the the direction and control as to its use when I evidence. It is for the sound judgment of was here, and, when I was not here, then my son Edward Teller gave orders what to be done. the jury to weigh all the circumstances, inMcKinney generally drove the car as an em- cluding the characters of the persons involvployé of the defendant. He was authorized and ed and the probability of different lines of directed that whenever he wanted the car we called on him to get the car and he looked after conduct, and determine where the truth lies it if it was broken and any repairs necessary, as a matter of common sense unfettered by he was to do that without even saying to us any arbitrary rule. that it was to be done, unless it was something serious; clean it, wash it, and repair it if necessary. It was kept in the Pueblo Automobile Company's garage."

A careful consideration of all the testimony in the case does not disclose substantial basis for the conclusion of the court Under this state of facts, it is the general-"that the chauffeur practically stole the ma- . ly accepted rule that the plaintiff establish- chine out of the garage," or "that in so doed a prima facie case that the chauffeur was ing he was not in the discharge of his duty,

or in the line of his duty." There is no testimony in the case to indicate that the chauffeur did not take the machine from the garage as he had done, for the purpose of use and repair, continuously for the entire three years of his employment. It does not appear that during all that period he ever had a verbal or written order from his employer to the management of the garage to permit the use or possession of the automobile. In fact, the president of the company testified to the contrary, for he says:

"He was authorized and directed that, whenever we wanted the car, we called on him to get the car."

A. I could not say as to that. Q. You would not at that time have made a misstatement willupset greatly over the accident, as any one else fully? A. Not necessarily, but I was necessarily would be. Q. At that time and place and in the presence of these gentlemen, did you not say, in answer to Mr. Palmer, in which he inquired, as follows, I suppose you were driving more rapidly than usual, as it was about dinner time?' and did you not answer to that question by, saying, 'I was not going to dinner, but was A. I cannot remember the words. Q. Was that going to try out the car on the viaduct hill.' question put and answer made in substance at that time? A. I don't remember it."

Upon rebuttal the plaintiff placed the persons, referred to, on the stand and endeavored to show that the chauffeur did make the statements about which he was so questioned, at the time and place suggested in the questions to McKinney, the chauffeur. The court excluded this testimony.

It will be seen that the defendant did not each time, nor at any time, call on the garage company to let him have the car. It would be absurd, in the light of human experience, to so infer. There is nothing in the whole testimony to indicate that, during the entire period of his employment, any other person whatsoever either cared for, drove, handled, or repaired the car. Indeed, it seems to have been at all times in his ex-time of the accident, the testimony was comclusive charge, subject only to direction as to its use.

[7] It is true that the president of the company testified that he instructed the chauffeur not to use the car except upon orders from himself or his son, who was the secretary of the defendant company, and the chauffeur corroborates this statement. But if the chauffeur did violate this instruction, it constituted nothing more than a violation of instructions, and this alone cannot relieve the defendant. 26 Cyc. 1535.

If McKinney did at that time say in the presence of these persons that he was not going to his dinner, but that he had just repaired the car and was trying it out, at the

petent, not as tending to prove the substantive charge, but as tending to impeach the testimony of the witness on the trial, to the effect that he was using the machine to go to his dinner, and it was error for the court to exclude it. The jury would be justified on such a showing in discrediting the witness entirely.

If the chauffeur was in fact trying out the car after making the repairs, then he was plainly acting within the scope of his authority, as that authority was stated by the

chauffeur was given the authority to generally rely on his own judgment as to repairs. Indeed, the chauffeur testified that it was his duty to try out the car after having made repairs.

It is the specific contention of the defend-president of the company, and wherein the ant that the chauffeur was allowed the noon hour for his meals, and that upon this occasion he took the automobile from the garage without permission and started to go to his dinner, and that the accident occurred while so traveling from the garage to the chauffeur's home; that under this state of facts the chauffeur was acting without the scope of his authority. But this contention as to fact rests on the chauffeur's testimony, except that one of the keepers of the garage testifies that the chauffeur so told him, and invited him to ride with him. This man was in the machine at the time of the accident.

[9] It is admitted that the machine was not driven to the chauffeur's home after the accident, nor at all, but was returned to the garage, and later in the afternoon driven to the defendant's reservoir. The contention of the defendant must rest upon the question of the intent and purpose alone of the chauffeur, at the time of the accident, as to whether the use of the automobile was within the line of employment. The question was one of fact, and for the jury alone to determine.

We have not entered into a discussion of the question of deviation from the line of employment for the reason that it does not seem to be necessarily involved. This question is quite fully considered by our Court of Appeals in the case of Gibson v. Dupree, 26 Colo. App. 324, 144 Pac. 1133.

"Q. In Dr. Campbell's office, in the presence of Mr. Saxton and Mr. Huff, did you make this statement: 'I was trying out the machine at the time of the injury to Mr. Ward, and I was going to run up the viaduct hill.' A. I don't remember; it has been so long. Q. And at that [10] The defendant in error contends thac time and place did you not also make the statement, in the presence of these two parties named, the right to review in this case does not exthat you had just repaired the car and you ist, and cites Monteith v. U. P. D. & R. G. wanted to try it out? A. I don't remember; it Co., 13 Colo. App. 421, 58 Pac. 338. We has been quite a while, and I don't just remem- think that the right to review under the cirber what I said. Q. If you made this statement immediately after, that would be the truth? cumstances of the case is fully supported by