While agreeing in the opinion of the Chief justice, I am entirely sympathetic — no one can be otherwise — with the idea that plaintiff should have damages. But in my view the refusal of this court (Provo v. Conrad, 130 Minn. 412,153 N.W. 753; Menton v. L. Patterson Merc. Co. 145 Minn. 310,176 N.W. 991) to put automobiles under the rule of liability applicable to dangerous instrumentalities, and the omission of the legislature to nullify that negation (in accord, I concede, with the great weight of authority, note, 16 A.L.R. 270) should prevent recovery here as matter of law, even though we dislike the result.
A day or so previously Childs and Aldrich planned the "joy ride" to Cass Lake. They contemplated no business for Aldrich's employer. Conceded is a statement by Aldrich that he had at one time some notion of calling on the more or less mythical prospect at Cass Lake. Conceded also the inconclusive presumption we could indulge had we nothing more in evidence than ownership of the car by the Denison-Harding Chevrolet Company and the fact that Aldrich was its employe. But when adversely controlling facts appear such presumptions disappear. They "are never allowed against ascertained and established facts." Hawkins v. Kronick C. L. Co. 157 Minn. 33, 36,195 N.W. 766, 767, following Lincoln v. French, 105 U.S. 614,26 L.ed. 1189. The undisputed facts demonstrate that on the evening in question Aldrich never in fact attempted any business for his employer. Conclusive proof shows that the whole evening was given over to matters wholly personal to himself and Childs, with nothing to do with the business of the employer. Hence my conclusion that the record clearly puts the case outside the rule of respondeat superior.
Surely the court cannot mean to hold that a fleeting purpose of an agent hours before sustains the conclusion that at the moment of the accident he was within the scope of his employment when it is proved not only that the purpose was never accomplished but also that it was abandoned long before the accident for a mission wholly personal to the agent and plainly outside his employment. *Page 649 Any such holding, as pertinently remarked by the Chief Justice, makes property rights hang by a very slender thread. Thereby the property of one litigant is transferred to another on the mere testimonial suggestion of a mental operation, a mere thought on the part of the loser's agent, never acted on nor attempted to be acted on. All else aside, such a holding is in plain violation of the rule, upon which our first decision was based, that an owner is not liable for negligent operation of his automobile by an employe for the latter's sole business or pleasure, even though the owner has consented to such use. I had supposed that to be as well settled here, as it is about everywhere else, by Mogle v. A. W. Scott Co. 144 Minn. 173,174 N.W. 832, and Menton v. L. Patterson Merc. Co. 145 Minn. 310,176 N.W. 991. Are these cases being overruled? If not, how are they distinguishable? *Page 650