concurring specially.
I reluctantly concur in the judgment reversing the trial court’s denial of the defendant’s motion for summary judgment on the basis of the facts of this case. I also agree that since the "defendant himself was not at home and had nothing to do with the incident,” there is "no reason or authority to hold him liable...” on the basis of defendant’s wife’s faulty instructions to the plaintiff. In this connection, one spouse cannot be vicariously liable for the other spouse’s conduct solely because of the marital relationship when there is no indication that at the time of the tortious conduct an agency relationship existed. Shelton v. Doster, 99 Ga. App. 863 (109 SE2d 862) (1959); Curtis v. Ashworth, 165 Ga. 782 (142 SE 111) (1928). There is, however, authority that if one spouse is the agent of the other, both may be sued for the tort of the agent spouse. Miller v. Straus, 38 Ga. App. 781 (145 SE 501) (1928).
In this case the wife was not joined as a defendant and there was no proof of agency. Therefore, under the specific facts of this case, the decisions in Goodwin v. Mullins, 122 Ga. App. 84 (176 SE2d 551) (1970); and Sanford v. Howe, *98129 Ga. App. 641 (200 SE2d 508) (1973), cited by the majority are controlling as to the liability of the defendant husband. However, it is to be observed that in neither Goodwin nor Sanford did the plaintiff base the alleged liability of the defendant upon the defendant’s false instructions of the specificity here involved. Accordingly, if such instructions were to be given by an owner or if agency were to be established, Goodwin and Sanford would be distinguishable and it would be for the jury to determine if the erroneous instructions resulted in "wilful and wanton injury” to a social guest as contemplated by Code Ann. § 105-402. Notwithstanding the correctness of the judgment in this case, my concern is that our holding herein not be misconstrued as authority exculpating an owner of a residence from liability as result of knowingly giving false instructions which, when followed to the letter, result in injury to a social guest.