(dissenting). The majority opinion follows the rule announced in the case of Birch v. Abercrombie, 74 Wash. 486, 133 Pac. 1029, 50 L. R. A. (N. S.) 59; and, if the doctrine announced by the Washington court in that case is correct, concededly the present case.should be affirmed.
While it is stated in the majority opinion that upon the occasion of the accident two sons of appellant were in the machine, one driving and the other a passenger, I do not understand the majority to hold that the son who was driving the machine was the agent of the father because he was carrying another member of the father’s family in the machine. Some courts hold that where a father provides an automobile for the pleasure and convenience of the members of his family, and a member of the family acts as chauffeur, and at the request of the father or with his consent uses the machine to carry the members of the family on business or pleasure, the son is acting as chauffeur and is the agent or servant of the father. The facts in this case, however, in my judgment, should not bring it* within such a rule. From all that appears from the record the son who was driving the machine was about his own individual bus-, mess, and was not operating the machine at the request or for the convenience of his brother. In this respect the case is identical with that of Cohen v. Meador, 119 Va. 429, 89 S. E. 876, Ann. Cas. 1917D, 375. Eliminating this incident from the ease and stating the law as set forth in the majority opinion, we have the doctrine announced that:
‘‘One who keeps an automobile for the pleasure and convenience of himself and his family is liable for injuries caused by the negligent operation of the machine while it is being used for the pleasure or convenience of a member of his family.”
—which restated baldly, holds that, where a father purchases an automobile for the convenience or pleasure of his family, he is liable for all injuries occasioned by the negligent operation of the same by any member of the family, although such member at the time of the injury was pursuing his own business or pleasure. Liability is put on the ground that the child, or member of the family, is the servant of the father, notwithstanding that at the time the injqry is inflicted the child, or member of the family, is pursuing his own ends or purposes, whether of business or pleasure. I cannot give my assent to this doctrine, which, if followed to its logical conclusion, would render the parent liable in all cases for injuries resulting from the negligent use by members of his family of instrumentalities which he had provided for their pleasure and amusement. If, perchance, a parent should pdrchase a bicycle for the pleasure and amusement of his son, which, by reason of the negligence of the child, should occasion injury to another, the parent would be liable. The same thing would apply to a golf ball, base ball, roller states, and a hundred and one other things which devoted parents are beguiled into supplying, for the amusement and entertainment of their progeny.
It bas never been the law in this country or in England that the father is liable for the torts of his children, either minors or adults, simply because of the relationship of parent and child and the majority opinion in this case and the authorities supporting it do not place the liability upon the ground of relationship, but attempt to sustain it upon the theory of the doctrine of master and servant.
Until the cases followed by the opinion in this case announced the novel doctrine applicable to injuries occasioned by automobiles driven by a member of the family, it has always been accepted, without question, that a master was not responsible for any act or omission of his servant which was not connected with the business in which he served him, and in determining whether • a particular act is done in the course of thé servant’s employment it is proper to inquire, whether the servant was at the tim'e engaged in serving the master. If the act was done while the .servant was at liberty from his services, pursuing his own ends exclusively, there was no question but that the master was not responsible, even though the injuries complained of could not have been committed without the facilities afforded by the servant’s relation to his master. Garretzen v. Duenckel, 50 Mo. 104, 11 Am. Rep. 405.
An automobile is not per se a dangerous agency. McNeal v. McKain, 33 Okl. 449, 126 Pac. 742, 41 L. R. A. (N. S.) 775; Lewis v. Amorous, 3 Ga. App. 50, 59 S. E. 338; Shinkle v. McCullough, 116 Ky. 960, 77 S. W. 196, 25 Ky. Law. Rep. 1143, 105 Am. St. Rep. 249; Christy v. Elliott, 216 Ill. 31, 74 N. E. 1035, 1 L. R. A. (N. S.) 215, 108 Am. St. Rep. 196, 3 Ann. Cas. 487; Chicago v. Banker, 112 Ill. App. 94; McIntyre v. Orner, 166. Ind. 57, 76 N. E. 750, 4 L. R. A. (N. S.) 1130, 117 Am. St. Rep. 359, 8 Ann. Cas. 1087; Indiana Springs Co. v. Brown, 165 Ind. 465, 74 N. E. 615, 1 L. R. A. (N. S.) 238, 6 Ann. Cas. 656; Smith v. Jordan, 211 Mass. 269, 97 N. E. 761; Hartley v. Miller et al., 165 Mich. 115, 130 N. W. 336, 33 L. R. A. (N. S.) 81; Slater v. Advance Thresher Co., 97 Minn. 305, 107 N. W. 133, 5 L. R. A. (N. S.) 598; Daily v. Maxwell, 152 Mo. App. 415, 133 S. W. 355; Hall v. Compton, 130 Mo. App. 675, 108 S. W. 1122; Danforth v. Fisher, 75 N. H. 111, 71 Atl. 535, 21 L. R. A. (N. S.) 93, 139 Am. St. Rep. 670; Vincent v. Crandall, 131 App. Div. 200, 115 N. Y. Supp. 600; Knight v. Lanier, 69 App. Div. 454, 74 N. Y. Supp. 999; Steffen v. McNaughton, 142 Wis. 49, 124 N. W. 1016, 26 L. R. A. (N. S.) 382, 19 Ann. Cas. 1227; Jones v. Hoge, 47 Wash. 663, 92 Pac. 433, 14 L. R. A. (N. S.) 216, 125 Am. St. Rep. 915. This being true, an automobile would be in the same class as a horse and buggy, a bicycle, or other similar agency provided for the comfort, convenience, or amusement of the members of the family.
The following cases are cited in the notes referred to in the majority opinion as supporting, directly and indirectly, the position taken: Denison v. McNorton, 228 Fed. 401, 142 C. C. A. 631; Stowe v. Morris, 147 Ky. 386, 144 S. W. 52, 39 L. R. A. (N. S.) 224; McNeal v. McKain, 33 Okl. 449, 126 Pae. 742, 41 L. R. A. (N. S.) 775; Campbell v. Arnold, 219 Mass. 160, 106 N. E. 599; Bourne v. Whitman, 209 Mass. 155, 95 N. E. 404, 35. L. R. A. (N. S.) 701; Smith v. Jordan, 211 Mass. 269, 97 N. E. 761; Kayser v. Van Nest, 125 Minn. 277, 146 N. W. 1091, 51 L. R. A. (N. S.) 970; Ploetz v. Holt (1913) 124 Minn. 169, 144 N. W. 745; G-uignon v. Campbell, 80 Wash. 543, 141 Pac. 1031; Switzer v. Sherwood, 80' Wash. 19, 141 Pac. 181, Ann. Gas. 1917A, 216; Birch v. Abercrombie, 74 Wash, 486, 133 Pac. 1020, 50 L. R. A. (N. S.) 59; Allen v. Bland (Tex. Civ. App. 1914) 168 S. W. 35; Hazzard v. Carstairs, 244 Pa. 122, 90 Atl. 556; Moon v. Matthews, 227 Pa. 488, 76 Atl. 219, 29 L, R. A. (N. S.) 856, 136 Am. St. Rep. 902; Cowell v. Sap-erston, 149 App. Div. 373, 134 N. Y. Supp. 284,' also 208' N. Y. 619, 102 N. E. 1100; Davis v. Littlefield, 97 S. C. 171, 81 S. E. 487; Winn v. Haliday (1915) 109 Miss. 691, 69 South. 685; MeHarg v. Adt (1914) 163 App. Div. 782, 149 N. Y. Supp. 244; Carrier v. Donovan, 88' Conn. 37, 89 Atl. 894; Hiroux v. Baum, 137 Wis. 197, 118 N. W. 533, 19 L. R. A. (N. S.) 332; Lashbrook v. Patten, 1 Duv. (Ky.) 317; Winfrey v. Lazarus, 148 Mo. App. 388, 128 S. W. 276; Daily y. Maxwell, 152 Mo. App. loc. cit. 422, 133 S. W. 351; Marshall v. Taylor, 168 Mo. App. 240, 153 S. W. 527; Hays v. Hogan, 180 Mo. App. 237, 165 S. W. 1125; McWhirter v. Fuller (Cal.) 170 Pac. 417. The case of Hutchins v. Haffner, 167 Pac. 966, L. R. A. 1918A, 1008, should also be added, as should Lewis v. Steele, 52 Mont. 300, 157 Pac. 575. A reading of the last expression of the Supreme Court of Massachusetts in the case of Smith y. Jordan, supra, will show that it does not go to the extent claimed for it, but is really the other way, nor do the other two cases cited support appellees contention. The Texas case (Allen v. Bland, supra) is not in point. There, the father permitted his 11 year old son to drive the automobile, and the ease turned on the point that the father was liable because he permitted an inexperienced and incompetent boy to operate the automobile. In the Kentucky case (Stowe v. Morris, supra) the son was not operating the car for his own purpose, but was driving at the request and for the business of his sister; it being his duty, under instruction, to drive the same at the request of other members of the family. Nor are the Pennsylvania cases, for in each of the eases cited the machine was operated by a hired chauffeur on family business. Carrier v. Donovan, supra, the Connecticut case, is not in point, nor is the Wisconsin case of Hiroux v. Baum, supra. The Mississippi case is also distinguishable, as shown by the latter case, of Woods v. Clements, 113 Miss. 720, 74 South. 422, L. R. A. 1917E, 357. The New York eases were all decided by inferior courts, and the later expression by the Court of Appeals is the other way. The same is true- of the Missouri cases. vThe Oklahoma case is not in point because the son, who was acting as chauffeur, did so at the request of his sister, taking the. sister and her friend for á pleasure ride. Eliminating these, we have fairly supporting tbe majority opinion the courts of Minnesota, Washington, South Carolina,' Colorado, and Montana.
On the contrary, my position is supported by the following wéll-considered cases and authorities: Parker v. Wilson, 179 Ala. 361, 60 South. 150, 43 L. R. A. (N. S.) 87; Riley v. Roach, 168 Mich. 294, 134 N. W. 14, 37 L. R. A. (N. S.) 834; Danforth v. Fisher, 75 N. H. 111, 71 Atl. 535, 21 L. R. A. (N. S.) 93, 139 Am. St. Rep. 670; Cunningham v. Castle, 127 App. Div. 580, 111 N. Y. Supp. 1057; Sotz v. Hanlon, 217 Pa. 339, 66 Atl. 525, 10 L. R. A. (N. S.) 202, 118 Am. St. Rep. 922, 10 Ann. Cas. 731; Cohen v. Borgenecht, 83 Misc. Rep. 28, 144 N. Y. Supp. 399; Maher v. Benedict, 123 App. Div. 579, 108 N. Y. Supp. 228; Patterson v. Kates (C. C.) 152 Fed. 481; Slater v. Thresher Co., 97 Minn. 305, 107 N. W. 133, 5 L. R. A. (N. S.) 598; Stewart v. Baruch, 103 App. Div. 577, 93 N. Y. Supp. 161; Reynolds v. Buck, 127 Iowa 601, 103 N. W. 946; Doran v. Thomsen, 76 N. J. Law, 754, 71 Atl. 296, 19 L. R. A. (N. S.) 335, 131 Am. St. Rep. 677; Garretzen v. Duenckel, 50 Mo. 104, 11 Am. Rep. 405; Evans v. Automobile Co., 121 Mo. App. 266, 101 S. W. 1132; Maddox v. Brown, 71 Me. 432, 36 Am. St. Rep. 336; Broadstreet v. Hall, 168 Ind. 192, 80 N. E. 145, 10 L. R. A. (N. S.) 933, and notes, 120 Am. St. Rep. 356; Howe v. Leighton, 75 N. H. 601, 75 Atl. 102; Spelman v. Delano, 177 Mo. App. 28, 163 S. W. 300; Linville v. Nissen, 162 N. C. 95, 77 S. E. 1096; Tanzer v. Read, 160 App. Div. 584, 145 N. Y. Supp. 708; McFarlane v. Winters, 47 Utah 598, 155 Pac. 437, L. R. A. 1916D, 618; Heissenbuttel v. Meagher, 162 App. Div. 752, 147 N. Y. Supp. 1087; B. & R. Co. v. McLeod, Alberta L. R. 7 D. L. R. 579; Farthing v. Strouse, 172 App. Div. 523, 158 N. Y. Supp. 841; Loehr v. Abell, 174 Mich. 590, 140 N. W. 926; Armstrong v. Sellers, 182 Ala. 582, 62 South. 28; Schumer v. Register, 12 Ga. App. 743, 78 S. E. 731; Roberts v. Schanz, 83 Misc. Rep. 139, 144 N. Y. Supp. 824; University of Missouri Bulletin, Law Series 5 (December, 1914) p. 30; Case and Comment (August, 1915) p. 220; Harvard Law Review (November, 1914) p. 91.
Among the cases relied upon to support the liability of the father is that of Hays v. Hogan, 180 Mo. App. 237, 165 S. W. 1125. This case, however, went to the Supreme Court of Missouri, and that court repudiated the doctrine contended for and held, quoting from the syllabus:
“A father is not liable for the negligence'of a minor son in driving an automobile purchased, for the use of tlm family, solely in furtherance of the child’s own business or pleasure, and permission of the father is immaterial.” 200 S. W. 286.
The Court of Appeals of New York, in the case of Van Blaricom v. Dodson, 220 N. Y. 111, 115 N. E. 443, L. R. A. 1917F, 363, after stating the rule as announced by the Supreme Court of Washington, says:.
“This is an advanced proposition in the law of principal and agent and the question which it presents really resolves itself into the one, whether, as a matter of common sense and practical experience, we ought to say that a parent who maintains some article for family use and occasionally permits a capable son to use it for his individual convenience ought to be regarded as having undertaken the occupation of entertaining the latter and to have made him his agent in this business, although the act being done is solely for the benefit of the son. That really is about all there is to the question. Not much can be profitably said.^by way of amplification or in debate of the query whether* such a liability would rest upon reasonable principles or whether it would present a case of such theoretical1 and attenuated agency, if any, as would be beyond the recognition of sound principles of law as they are ordinarily applied to that relationship. The question largely carries on its face the answer, whichever way to be made. * * * But it seems to us that such a theory is more illusory than substantial, and that it would be farfetched to hold that a father should become Jiable as principal every time he permitted a capable child to use for his personal convenience some article primarily kept for family use. That certainly would introduce into the family relationship a new rule of conduct which, so far as we are aware, has never been applied to other articles than an automobile. We have never-heard it argued that a man who kept for family use a horse or wagon or boat or set of golf sticks had so embarked' upon the occupation and business of furnishing pleasure to the members of his family that, if some time he permitted one of them to use one of those articles for his personal enjoyment, the lattér was engaged in carrying out, not his own purposes, but, as agent, the business of his father. It seems to us that the present theory is largely due to the thought that because an automobile may be more dangerous when carelessly used than any of the other articles mentioned', there ought to be a larger liability upon the part of the owner, and, to this end, an extension of the doctrine of principal' and agent in order properly to safeguard its use. * * * And in the present case it is in effect argued that because the use of an automobile upon a highway may be dangerous, and therefore is a privilege subject to license by the state, the courts can apply a different rule of agency to its use than would or could be applied to the case of the other articles which have been mentioned'. This kind of argument', as it appears to us, discloses the novelty and weakness of the proposition which is being urged upon us. It seems to disclose the idea, as an essential part of the argument, that because an automobile is different than a horse or boat, some advanced rules ought to be applied to. its use. But the rules of principal and agent are not thus to be formulated. They are believed to be constant and not variable in response to the supposed exigencies of some particular situation. The question whether one person is the agent of another in respect of some transaction is to be determined by the fact that he represents and is acting for him rather than by the consideration that it will be inconvenient or unjust if he is not held to be his agent. If, ■ contrary to ordinary rules, the owner of a car ought to be responsible for the carelessness of every one whom he permits to use it in the latter’s own business, that liability ought to be sought by legislation as a condition of issuing a license rather than by some new and anomalous slant applied by the courts to thei principles of agency.”
This opinion says about all that can be said upon the subject. If the lawmaking power of the state deems it necessary that the owner of an automobile should be made liable for injuries occasioned by its negligent operation by members of the family, it can pass appropriate legislation to accomplish such end. A court, however, is not a legislative branch of the government, and should not assume powers not vested in it by the Constitution.
For the foregoing reasons, I dissent.