
    ELIASON, Appellant, v. GEIL, Respondent.
    (No. 8365.)
    (Submitted December 4, 1942.
    Decided December 24, 1942.)
    [132 Pac. (2d) 158.]
    
      
      Messrs. William B. Taylor, Horace J. Dwyer, K. W. MacPherson and John W. Chapman, for Appellant, submitted an original and a reply brief; Mr. Taylor and Mr. Chapman argued the cause orally.
    
      
      Mr. J. B. C. Knight, for Bespondent, submitted a brief and argued tbe cause orally.
   MR. JUSTICE ANGSTMAN

delivered tbe opinion of tbe court.

Plaintiff bas appealed from a judgment in favor of defendant Geil on a directed verdict. Tbe action is one to recover damages for personal injuries resulting from an automobile accident. Plaintiff recovered a verdict and judgment against tbe defendant Flobr, and no appeal bas been taken from that judgment. Defendant Flobr was driving tbe automobile at tbe time of tbe accident which caused the injuries to plaintiff. Tbe automobile belonged to tbe defendant Geil, who was at tbe time in question operating under tbe name of the Geil Motor Company and was engaged in selling second-hand cars which be kept on a used-car lot in Anaconda. Flobr was bis agent, working on a commission basis. Tbe car at tbe time of tbe accident bad its price written on tbe windshield. Tbe accident happened near tbe town of Galen.

Tbe main point in tbe case is whether tbe court was right in directing a verdict for tbe defendant Geil. Tbe propriety of tbe court’s ruling in that respect depends upon whether there was any substantial evidence in tbe record that Flobr at tbe time of tbe accident was acting within tbe scope of bis employment with defendant Geil so as to entitle plaintiff to have tbe case submitted to tbe jury as to defendant Geil. It is our view that tbe case should have been submitted to the jury as to defendant Geil.

In Monaghan v. Standard Motor Co., 96 Mont. 165, 29 Pac. (2d) 378, we held in effect that where tbe ownership of tbe car is established and it is shown that tbe driver was in tbe employ of tbe owner, tbe rebuttable presumption arises that tbe agent was acting within tbe scope of his employment while driving it. (See, also, State ex rel. Vesper-Buick Automobile Co. v. Daues, 323 Mo. 388, 19 S. W. (2d) 700, 67 A. L. R. 157; 5 Wigmore on Evidence, 2nd Ed., sec. 2510A, p. 502; 4 Berry on Automobiles, 7th Ed., p. 839; 10 Blashfield’s Cyclopedia of Automobile Law and Practice, Perm. Ed., sec. 6637.) We further held in the Monaghan Case, following prior cases on the subject, that the denial by interested witnesses controverting the presumption is insufficient to overcome it as a matter of law. Here the only proof in the case to overcome the presumption is the testimony of Mr. Geil to the effect that Flohr had no authority to drive outside the city of Anaconda to demonstrate the cars, and of Mills, defendant Geil’s nephew, who was employed as Geil’s general manager, who testified that Flohr could demonstrate cars outside of Anaconda by only for a short ride not exceeding one-half hour. Geil was an interested witness within the meaning of the Monaghan Case and his denial that Flohr was acting within the scope of his employment at the time of the accident does not overcome the presumption as a matter of law, but left the question one of fact for the jury to determine. Whether Mills be regarded as an interested witness or not, his testimony does not overcome the presumption as a matter of law.

The denial by even a disinterested witness is insufficient to overcome the presumption as a matter of law if the testimony is controverted and impeached, or if not free from inherent improbabilities, or is not so clear and convincing that but one conclusion could be drawn from it. (Claxton v. Page, 190 Okl. 422, 124 Pac. (2d) 977; Bradley v. Savidge, Inc., (Wash.), 123 Pac. (2d) 780; Frank v. Wright, 140 Tenn. 535, 205 S. W. 434.)

Under the rule of these cases, we must hold that this case should be submitted to the jury even if Mills be regarded a disinterested witness, because his testimony was disputed and the witness was impeached so as to make the question one for the jury’s determination. Mills in substance testified that Flohr’s authority was limited in that he had no authority to take cars from the lot in Anaconda for more than one-half hour in demonstrating them; that the car in question was taken from the used-car lot on September 17th and remained away until the accident in the afternoon of the 19th. In substance he testified that when he discovered that Flohr had taken the car from the used-car lot and did not return it, he reported the matter to the chief of police in Anaconda and to the sheriff’s office for the purpose of causing Flohr’s arrest. All of the police officers and the sheriff’s force, who were on duty at the time this was supposed to have been reported to them, testified that their records did not show that any such report had been made to them, and none of them recollected that any such report had been made. Under the circumstances, the testimony of Mills was impeached to the extent that the question should have gone to the jury as to whether the presumption that Flohr was acting within the scope of his employment at the time of the accident was overcome. True, the testimony of the police officers and the sheriff’s force did not directly refute the testimony of Mills that Flohr had no authority to take the car from the used-car lot for more than thirty minutes. However, defendant Geil sought to bolster the testimony of Mills by having him testify that he thus reported the matter to the police and the sheriff’s office, and since Mills was impeached on this point, the jury, if it believed that his testimony was false in one part, would have been warranted in distrusting him in other respects. (See. 10672, sub. 3, Rev. Codes.) Consequently the weight to be given to his testimony was a question for the jury.

Other questions have been raised and particularly as to whether certain declarations made by Flohr prior to and after the accident were admissible as tending to show that at the time of the accident he was demonstrating the car to prospective purchasers. Flohr was not called as a witness. It is not certain that this question will arise on another trial, since Flohr may be called to testify, in which ease declarations made by him might not be offered in evidence. Furthermore, plaintiff may choose not to offer such declarations in view of the fact that he is entitled to go to the jury without them. In view of the circumstances that this question may not arise upon another trial, we deem it inadvisable to discuss the point at this time.

Another point was raised by plaintiff. The court struck out certain testimony offered by plaintiff relative to the custom of used-car dealers in placing a price tag on the cars and displaying them to the gaze of the general public. It was shown that the ear in question here had a price tag on the windshield at the time of the accident. "What other dealers did along the same line was immaterial, and the court was right in striking the testimony.

The judgment is reversed and the cause remanded for a new trial as against defendant G-eil.

Mr. Chief Justice Johnson and Associate Justices Erickson, Anderson and Morris concur.

Motion to recall Remittitur denied January 19, 1943.  