The opinion
ROSSMAN, J.
(specially concurring)
I concur in the result reached by the foregoing opinion, but believe that we ought not say that it is permissible to infer from the fact that a person who is driving a car which belongs to another is (a) the agent of the owner, and (b) acting within the scope of authority conferred upon him by the owner. I am willing to hold that a presumption — a legal presumption — of agency arises out of such a situation. There are very material differences between a presumption and an inference. The latter has enduring qualities; the former is a device of the law which, when it has served its function of getting a party past a nonsuit, disappears.
. A presumption is frequently something which is arbitrary; it is an assumption. Being an assumption, it takes a fact for granted, in the absence of knowledge concerning the assumed fact. In short, it is a step taken in the dark. But an inference is quite different. Unlike a presumption, which is the product of the law, an inference is the product of reason. There is nothing arbitrary about an inference. Between an inference and the fact from which it is drawn there must exist a logical connection. Laymen, lawyers, jurors, in fact everyone, draw inferences every day. Robinson Crusoe saw footprints upon the sand. Seeing them, he drew an inference — that a visitor was upon his island.
If we see a car being operated by someone who is not its owner, do we, as a matter of everyday reasoning, infer that the one in possession of the car is the
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agent of the owner and that he is acting within the scope of authority that the owner delegated to him? I do not believe that anyone draws such inferences. The most that he does is to infer that the occupant of the car is in lawful possession of it. Suppose that A’s eye was put out by the tip of an umbrella which was being carried by B. Suppose also that it should develop that the umbrella was owned by C. If those were the only facts before a court, would any judge permit the jurors to infer that B was C’s agent and that at the time of the tort B was acting within the scope of authority that C had conferred? Lest it should be said that umbrellas are not frequently carried by non-owners, let us take as an illustration a typewriter. Typewriters are frequently operated by individuals who do not own them. Suppose one is being operated in some public place, as, for instance, in the lobby of a hotel and it then develops that the operator is not the owner of the typewriter. Would anyone infer that the operator is the agent of the owner and that he is operating it in furtherance of authority that has been conferred? In all such instances, the only permissible inference is that the person in possession is in lawful possession.
The automobile mentioned by the majority was a non-commercial vehicle. It was not a delivery car bearing the name of a concern which used it for commercial purposes. Commercial cars, and purported agents who dress in the livery of the concern which employ them, present facts different from the one before us.
It is apparent that the majority “infer” the agency in the present instance, not as the result of logic, but in order to promote utility or convenience. But administrative presumptions have been created by the law for
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the purpose of serving the ends of utility and convenience. Administrative presumptions speed up the trial and exact the first proof upon selected issues from the party who is best able to come forth with the evidence upon those issues. Chamberlayne on Evidence, § 1185, states that a presumption of this character is
“practically a rule of convenience, largely within the administrative power of the court and the principal object of its employment is to facilitate and expedite trials, bringing the parties from the non-essentials of their dispute down to the essential. It is, as it were, a short method of ascertaining where lies the crux or hinge of the case. * * * It is entirely within the administrative control of the presiding judge, * *
Generally, a person who is run down by a car driven by a non-owner is not in a position to prove the relationship which actually existed between the driver and the owner. The latter, in most instances, can disprove the agency, if none in fact existed. Therefore, in instances of that kind, the law creates an administrative presumption of agency which enables the plaintiff to avoid a non-suit. The presumption coerces the defendant into coming forth with evidence concerning the real relationship.
If, in the present instance, the facts before the court at the time when the plaintiff rested created an inference that the driver was the owner’s agent, those facts, although contradicted later by evidence offered by the defendant, still existed when both parties had rested. Whether the facts for which the plaintiff vouched or those for which the defendant vouched reflected the truth was an issue for the jury’s determination. As I have indicated, I do not believe that the facts for which the plaintiff vouched created an inference of agency. They afforded the basis for a presumption, but the
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presumption disappeared when the defendant brought forth his evidence.
I realize that in the past this court has spoken as though an “inference” of agency arose out of facts similar to those before us. It has also employed the term “presumption.” I think that the matter is of such importance that we ought to employ the true term. Our previous decisions do not foreclose us upon a matter of this kind. As I have said, a presumption, and not an inference, of agency arises under circumstances such as those before us.
The above is my reason. I concur in the result.
Hay, J., concurs in this specially concurring opinion.