(dissenting)—I do not agree with my esteemed associates. They have, as I believe, reasoned from a false premise. It is that Colley was a mere borrower or a gratuitous bailee, and was not engaged in his employer’s (respondent’s) business; and although there be some authority holding that the negligence of a gratuitous bailee may be imputed to the bailor, the later and better authority is to the contrary. I am willing to admit, for the purposes of this argument, that the holding of the court is sound and that the conclusion reached by the majority is sus*68tained by later authority (3 R. C. L., p. 147), although the rule is otherwise laid down in 29 Cyc. 546, and the annotator of the L. R. A. Reports says of Sea Insurance Co. v. Vicksburg, S. & P. R. Co., cited in 17 L. R. A. (N. S.) 925, that “the only case found supporting the conclusion reached ... is New York, L. E. & W. R. Co. v. New Jersey Electric R. Co., 60 N. J. L. 338, 38 Atl. 828, 43 L. R. A. 849.
In the later annotation of Gibson v. Bessemer & L. E. R. Co., 27 L. R. A. (N. S.) 689, it is said:
“Perhaps, Gibson v. Bessemer & L. E. R. Co., which is in harmony with the Sea Ins. Co. case and New York, L. E. & W. R. Co. v. New Jersey Electric R. Co., . . . may be regarded as sufficient to turn the scale in favor of the other side of the proposition.”
But the law relied on does not reach or control the undisputed facts in this case, nor do any of the cases cited deny the principle for which I shall contend. It is, where property is not merely loaned to the user, but is turned over to him under a contract of use and as a part consideration for services rendered, the owner may not recover if the party to whom he has given the use of his property has been guilty of contributory negligence. It must be borne in mind that Colley did not hire the machine, nor was he using it as a mere gratuity. He had the use of it as part payment of a debt due from the owner, and as to third persons he was in legal effect and to all intents and purposes the owner of the machine. The machine had been bought by respondent and Colley, and was owned jointly by them for a time. Respondent, after two or three months, bought Colley’s interest. Respondent testifies that Colley, who had worked for him for about three years, continued in his employment after the purchase of the machine under an arrangement whereby Colley was to get “so much a month and had *69the use of the car,” and that this arrangement had been in effect from November, 1916, up until the time of the accident. He further testifies that, from- the time of the purchase of his interest, Colley, “was to have the use of the car and so much per month; ’ ’ and,
‘ ‘ Q. When you bought back the half interest, it was the understanding that he at all times should have the use of the car in addition to his wages, and whenever he wanted to go anywhere he could take the car? A. Yes, sir. Q. In other words, the car was furnished you as part payment for your employment there? A. Yes, sir. Q. And you had been using the car that way for several months before the accident? A. Yes, sir, I had.”
It is unnecessary to review the authorities cited by the majority. A brief reference to the case of Spelman v. Delano, 177 Mo. App. 28, 42, 163 S. W. 300, so strongly relied on by the writer of the opinion, will sufficiently illustrate my thought. The proper distinction is noted.
“The weight of authority seems to be clearly in favor of the rule that in a case where the circumstances show that the relation between the owner of the property and the one in possession of it at the time of its destruction is simply that of bailor and bailee, and does not involve any element of partnership, principal and agent, or master and servant, existing between them, then the contributory negligence of the bailee is not imputable to the bailor, in an action by the bailor against a third party for negligently destroying the bailor’s property.”
In Sea Insurance Co. v. Vicksburg, S. & P. R. Co., 159 Fed. 676, 17 L. R. A. ,(N. S.) 925, the court qualifies the rule:
“When one has been injured by the wrongful act of another, to which he has in no way contributed, he should be entitled to compensation from the wrongdoer, unless the negligence of some one towards whom *70he stands in the relation of principal or master has materially contributed to the injury.”
The case of Spelman v. Delano was one of gratuitous bailment. The party in whose hand the property was at the time of the injury was a mere borrower.
“Plaintiff was under no obligation to transport Cook to and from his place of labor. His lending the horse to Cook was no part of the contract between them. ’ ’
The case is distinguished from a case such as we have at bar upon that ground. Here the use of the automobile was a part of the contract of employment, and when respondent gave Colley the use of his machine in payment of his wages instead of money, he vouched for and became a guarantor of his competency to handle the machine and answerable for his due care in driving it, just as much as if he had employed him to drive the machine as a stage or as a delivery wagon. If Colley had negligently injured a third party, a court or jury would have surely held respondent to answer in damages upon the theory of agency or master and servant. He would not, in such case, be heard to repudiate his contract; then why in this? The falsity of the premise of the majority is, therefore, disclosed in the first line of the quotation from the Spelman case.
“It must be remembered that the question in the case at bar does not involve a bailment in which the bailee is the agent or servant of the bailor, nor is there any privity of contract between them.”
If there be not privity of contract between the respondent and Colley, I would be at a loss to contrive a, state of facts out of which such relation might arise. Had the quotation begun in the preceding paragraph, *71the majority would have sounded the bottom upon which this case should be made to rest.
“Of course if, by reason of the circumstances of the bailment, there is a privity of contract between the bailor and bailee, so that the bailee can be regarded as the agent of the bailor, then the negligence of the former should be imputed to the latter, the same as when the relation of master and servant exists between them. ’ ’
Now in the case at bar, it will not be disputed that the relation of master and servant existed at the time the contract was entered into and that the right to use the automobile as part remuneration for services rested in that relation. So, if the parties were master and servant at the time the contract was made, they must of necessity remain in that relation so long as the property was used under the terms and in the manner provided in the contract. That is to say, if they are master and servant as between themselves, they must, under all authority, remain master and servant as to third parties.
The harshness of the rule asserted by the majority, even in cases where it might be held to apply, is apologized for by the writer of the opinion in the Spelman case:
“While at first blush, the rule that the contributory negligence of a bailee cannot be imputed to a bailor when suing a third person for injuries to property, may seem unjust; yet, when- the rule is confined to those bailments which do not involve any privity of contract or agency between the bailor and bailee, it would not appear to be so harsh and unreasonable as might be supposed.”
So much for the law of the case as it arises out of the contract made by the parties and under which the machine was used at the time of the accident.
*72As I read the record, the facts will not sustain the holding of the majority or the verdict of the jury that Colley was not engaged in the prosecution of respondent’s business, or that he was not his agent or his servant, and that he was using the car merely for his own pleasure and was, therefore, a gratuitous bailee.
Colley, having the use of the machine as against any right to interfere on the part of the respondent, drove out on a Sunday afternoon in company with a young lady whom he intended to take to her home. While traveling over the country, it occurred to him that a shipment of liquor which, as the law then was, must be obtained on a permit and then only at stated intervals, was about due. The liquor had been ordered by the respondent and was shipped in his name. Colley went out of his way, out of the path of pleasure, to go to the station. He had on other occasions gone to the same place to receive like shipments for respondent. He inquired of the agent whether a package had been received for respondent. Being notified that the package was at the depot, he receipted for it in respondent’s name and undertook to carry it home. There was no express direction on the part of respondent to Colley to bring this particular shipment, but it was Colley’s habit and his custom to go to the depot without specific direction and receive such shipments for respondent from time to time. Respondent himself testifies:
“Q. He had on other occasions stopped at the station and got packages of this character for you? So, it was understood that there was no objection on your part to his getting it out and bringing it home? A. No, sir; I didn’t object. Q. It was perfectly agreeable with you that he stop and bring the package home, if he happened to be there? A. It was all right. Q. In fact, it would save you the trip, if it was there, and *73he could bring it out for you? Is that the idea? A. Not necessarily the trip; no, sir. Q. What distance is it from your place to the station? A. About two miles. Q. He had to go for it if you didn’t bring it out? Somebody has to get it? A. Yes, sir. Q. And after you had found out on this particular day he had received this package for you and signed for it in your name you made no objection at all? A. No, sir. Q. It was perfectly satisfactory to you? A. Yes, sir. Q. When you found out that he received your package and was taking it out, you made no objection, and it was perfectly satisfactory to you that he might bring it out? A. Yes. Q. While you had not instructed Mr. Colley to get any packages for you, he had from time to time brought packages out for you, and it was agreeable to you that he should do that? A. I had no objection to anybody bringing them out to me. Q. And he had done it before? A. He had probably, but I don’t remember it. Q. And it was perfectly agreeable that he should get this particular package and bring it out? A. I had no objection. Q. You made no objection after you found out that he had the package on that particular day? That was perfectly satisfactory to you that he should bring it out? A. I didn’t make any objection.”
This testimony clearly discloses that, aside from all other questions in the case, Colley was engaged in his master’s business; and whether under an implied or express authority, his act was ratified so as to put it beyond the power of the respondent to disaffirm his negligence and recover in this case. The liquor was received by Colley, who signed the name of respondent, and respondent says that his act was “perfectly satisfactory” to him. The testimony of the respondent is corroborated by that of Colley, the driver of the machine.
For these reasons, I believe that the judgment should be reversed and the cause dismissed.