*254ON MOTION FOR REHEARING AND MOTION TO CERTIFY TO THE SUPREME COURT.
FARRINGTON, J.I think the motions for rehearing and to certify the canse to the Supreme Court should be overruled because I believe the result reached in the opinion of the court already on file is the correct solution of the questions presented to us, not only for the reasons therein set forth, but the' reasons herein given as well.
We do not disagree as to the proposition of law that one cannot be held as master and liability fastened upon him as such for the acts of a third person unless such third person can be said to be his agent or servant. If J. E. Hogan was not the servant of R. S. Hogan, acting within the real or apparent scope of his authority, of course R. S. Hogan could not be held; but as I view the evidence, under the authorities there was sufficient evidence to justify the jury in fastening this relationship upon these parties.
It is admitted that the automobile that caused the injury belonged to the defendant, R. S. Hogan; and the evidence was such as to amply justify the jury in finding’ that the automobile at the time and place in question was being negligently operated by defendant, J. E. Hogan, to the damage of the plaintiff. We have then the case before us upon the following facts which - are either admitted or a prima-facie showing of the same made: R. S. Hogan was the owner of the automobile. It was being operated along a public road, and was therefore being used for the purpose for which an automobile was intended, and every person in the car at the time of the injury was an employee of the institution of which R. S. Hogan was presiding .officer.. It was being negligently operated, and such negligence was the proximate cause of the injury in question. This, upon reason and authority, makes a prima-facie case of liability, against the owner, R. S. Hogan. It *255matters not, under the facts in this case, whether the person operating the automobile was the adult or minor son of E. S. Hogan, or an entire stranger to him so long as the jury was warranted in finding that he was not a trespasser and had sufficient evidence before it upon which to support the finding that he was the servant and agent of E. S. Hogan.
The principle which I think conclusively determines this case is well stated in Shearman & Redfield on the Law of Negligence (6 Ed.), Vol. 1, Sec. 158, as follows. “When the plaintiff has suffered injury from the negligent management of a vehicle, such as a boat, car or carriage, it is sufficient prima-facie evidence that the negligence was imputable to the defendant, to show that he was the owner of the thing, without proving affirmatively that the person in charge was the defendant’s servant. It lies with the defendant to show that the person in charge was not his servant, leaving him to show, if he can, that the property was not under his control at the time, and that the accident was occasioned by the fault of a stranger, an independent contractor, or other person, for whose negligence the owner would not be answerable.” With ownership of personal property goes possession and control, and the natural inference arises that wherever such property is found it is in the possession and under the direction and control of the owner either actually or constructively. The same doctrine is announced in Norris v. Kohler, 41 N. Y. 42; Seaman v. Koehler (N. Y.), 25 N. E. 353; Doherty v. Lord, 28 N. Y. Supp. 720; Thiry v. Taylor B. & M. Co., 56 N. Y. Supp. 85; Perlstein v. American Exp. Co. (Mass.), 59 N. E. 194.
This question was ably and thoroughly discussed in the case of Fleishman v. Polar Wave I. & F. Co., 148 Mo. App. 117, 127 S. W. 660, where Judge Gtoode holds that perhaps proof of the name on the wagon alone would carry the casé to the jury on the issue of defendant’s liability, citing and discussing many authorities.
*256In onr case, the facts are sufficient to justify the ;jury in finding that J. E. Hogan was operating the automobile as the servant of R. S. Hogan. It is true, •the defendants’ evidence tends to show a different conclusion, but the jury did not believe that the evidence •offered by the defendants to the effect that the relation ■of master and servant did not exist was sufficient to .overcome the plaintiff’s prima-facie case. However, •plaintiff has much more to rely upon than the bare prima-facie case made showing the ownership of the automobile to be in R. S. Hogan. The latter admitted that •on a number of occasions he had given his son, J. E. Hogan, permission to run the car, and that he could not :remember an occasion when a request was made and ■refused. That some one had to operate the car besides -the owner is apparent because the owner admitted •that he had never learned to run it; and he swore that 'he and his wife were the only ones who could give permission to the defendant, J. E. Hogan, to run the car. ‘The automobile was left by R. S. Hogan’s wife, on the •day. of the accident, in front of the place where the son, J. E. Hogan, worked, and it was at this place that he •commenced to operate it.
This question has recently been passed on by our ‘Supreme Court in the case of O’Malley v. Heman Construction Co. (not yet officially reported), 164 S. W. 565, where, in the course of the opinion, this language appears: “There being sufficient evidence to. warrant a finding of defendant’s ownership of the wagon, it was not necessary for plaintiff to show affirmatively that the driver was defendant’s servant. This question is well considered in Fleishman v. Ice & Fuel Co., 148 Mo. App. 117, 127 S. W. 660. The same decision ¡answers the suggestion relative to the evidence that the «driver was acting within the scope of his employment.”
Unless the law of this State is to be completely (overturned, the plaintiff in this case must be held to *257have introduced sufficient evidence to make a primafacie case against both defendants; and the jury disbelieved the evidence offered by the defendants and found in favor of the plaintiff. If there was sufficient evidence to take the case to the jury, there is sufficient evidence to sustain the verdict. It is true, the case was argued here along the lines discussed in the opinion already on file; but the issue presented by the plaintiff’s principal instruction requiring the jury to find that the car was being operated by a servant or. agent of E. S. Hogan was broad enough to cover the theory which I have advanced in this opinion, and there was sufficient evidence to sustain a finding upon this theory, and it therefore cannot be said that I am seeking to sustain the verdict on a theory not submitted to the jury simply because I believe the judgment was for the right party.
Speaking for myself, I differ with many of the courts which hold that an automobile is not a dangerous instrumentality. “A dangerous instrumentality” is ordinarily attached as a name to those angeneies which are propelled by some powerful force, or in which some destructive force is stored up, which force is to be controlled by human hands, and which, when not kept under proper control, is calculated to deal death and destruction to those who come within the danger zone. It requires but a glance at the daily newpapers to convince one that death and destruction are constantly resulting from the operation of automobiles. And, recognizing this, I think our General Assembly has classified the automobile as a dangerous instrumentality by statutory enactment. [Laws 1911, p. 330 (9).] This was done, perhaps, because the Legislature thought it necessary to protect others of the traveling public against the use of a vehicle containing within itself such a power that by the mere shift of a few notches of the throttle it can be made to run from *258six to sixty miles an hour along the streets and highways which were laid out and designed to safely and conveniently take care of vehicles drawn by the ass and the ox. Wherever the Legislature or the courts have said that the care required to be used is greater than what is known as ordinary care and amounts to the highest degree of care, the reason given is that the instrumentality being used is a dangerous and subtle agency. Witness the decisions of the courts of this State in cases involving electricity, dynamite, street cars, passenger trains, etc. The General Assembly has by the statute referred to placed the highest degree of care to be exercised upon one controlling and operating an automobile and I believe that by so doing the classification has been stamped upon these vehicles which the courts must adhere to. I believe that the decisions of the courts of other States that an automobile is not a dangerous instrumentality were perhaps influenced by the fact that those States do not have a statute similar to ours. And so I think that an additional reason why the result reached in the opinion already on file is correct is that this automobile was a dangerous instrumentality, and was left by one having the control of it at a place where another, who had repeatedly, been given the right to operate it, did find it and use it to the damage of the plaintiff. And the burden placed upon the owner of this instrumentality of showing that the person who did operate it on this occasion was without authority was not in the opinion of the jury lifted.
I think the motion for a rehearing and the motion to certify the cause to the Supreme Court should be overruled.
*259ON MOTION TO TRANSFER TO THE SUPREME COURT.
STURGIS, J.On reconsidering this case on defendants’ motion to transfer same to the Supreme Court, I am convinced that, in any view of the case, this motion should he sustained. As this case was tried and determined in this court, the liability of defendant, R. S. Hogan, if any, is based on the relationship of master and servant held to exist between him and his son, the other defendant, who was in charge of and operating the automobile at the time of this accident. This case lays down the rule that, where an adult son, living with his father as a member of the family, uses the father’s automobile, purchased for general family use, with the father’s express or implied consent, on a trip purely for his own pleasure and in no way connected with any business of the father, then the relation of master and servant exists and. the father is liable for any negligent act of the son1 while so using the father’s automobile. That the son was on this occasion using this automobile purely for his own pleasure and in no way connected with any business of the father is conceded by both sides. I have no doubt that in so ruling this court has followed the decisions of the Kansas City Court of Appeals in Marshall v. Taylor, 168 Mo. App. 240, 153 S. W. 527, and Daily v. Maxwell, 152 Mo. App. 415, 133 S. W. 351. To rule otherwise than we have would make our decision in this case in conflict with the two decisions of our sister Court of Appeals, just mentioned. In following these decisions, however, it seems to me that-this case, as well as those just mentioned, makes a radical departure from the law of master and servant, as heretofore existing in this State. It has heretofore' been the law in this State that, in order to render the master liable for the negligent act of a servant, that relationship must exist at the time of such negligent *260act and such act must have been committed in the course of the servant’s employment and be connected with some business of the master in which the servant is engaged. [Garretzen v. Duenckel, 50 Mo. 104; Walker v. Railroad, 121 Mo. 575, 584, 26 S. W. 360.] These cases hold that the fact that the alleged servant is using the instrumentalities of the master at the time the accident, occurs is not sufficient to create a liability. Of course, the son may be his father’s servant and be engaged in his father’s business in operating his automobile and the doctrine of respondeat superior would apply; but, how can it be said that, merely because a father permits his son to use his automobile for taking a purely pleasure ride of his own, the son is his servant in so doing and is engaged in the master’s business. If so, it may well be said that every instrumentality of pleasure, furnished by the father to members of his family, makes each member a servant of the father in using the same and such use a business of the father which such servant is prosecuting for him.
In Spelman v. Delano, - Mo. App. -, 163 S. W. 301, the Kansas City Court of Appeals has recently held that where the master loans a horse to his servant to ride to and from his work, the relation of master and servant does not exist after the servant’s day’s labor is done and he is riding the horse home but rather that of a gratuitous bailee. The court there said: “If it be said that the bailor, by lending the horse, makes the bailee an agent for the care thereof and is thereby impliedly responsible for the latter’s conduct in reference thereto, and also makes it possible for the injury to occur, the answer is that the bailee is not the bailor’s agent in caring for the horse, else the bailor would be responsible for a negligent injury committed, by the bailee in using the horse, and this has never been held to be so. . . . No one will say that, if Cook had negligently ran down and killed a *261baby while riding the horse homeward, the plaintiff conld be held liable simply because he lent Cook the horse.” This doctrine is recognized and stated in Daily v. Maxwell, supra, where the court said: “All the authorities are in accord in holding that in an action based on the negligent running of an automobile the owner of the car who was not present at the infliction of the “injury cannot be held liable except it be shown that the person in charge not only was the agent or servant of the owner but also was engaged at the time in the business of his service. [Evans v. Automobile Co., 121 Mo. App. 266; Lotz v. Hanlon, 217 Pa. 339; Slater v. Thresher Co., 107 N. W. Rep. 133; Patterson v. Kates, 152 Fed. Rep. 481; Reynolds v. Buck, 103 N. W. 946; Clark v. Buckmobile Co., 94 N. Y. Supp. 771; Howe v. Leighton, 75 Atl. Rep. 102; Jones v. Hoge, 92 Pac. 433; Lewis v. Amorous, 59 S. E. 338.] Where a chauffeur, either with or without his master’s consent, uses the machine for his own business or for his own pleasure and negligently inflicts injury on another, the master cannot be held liable, for the reason that the negligent act being entirely outside the scope of the servant’s employment, cannot call into action the rule of respondeat superior. The fact of consent is material only in the solution of the issue of whether or not the use of the machine was, in fact, on business of the master. [Cunningham v. Castle, supra.] Should we regard the relationship, between the two defendants merely as that of owner and chauffeur —master and servant — the owner should not be held liable for the negligence of the chauffeur, since the evidence shows beyond question that the latter was using the machine merely for his own pleasure. ’ ’ That Court then said that a minor son was more than a chauffeur or servant when using his father’s automobile for a use for which it was kept, to-wit, for a pleasure car for the family. On what prinicple of law this fact makes the owner liable is not explained and the court, after *262discussing it, falls back on the doctrine of master and servant and places the liability on that ground, by saying: “We conclude that in running the car with the consent of his father and within the scope of family uses, Ernest was the agent and servant of his father. ’ ’
The courts of other States deal with cases similar to this by applying the usual rules of law applicable to master and servant, if such relation can be held to exist at all, which exempt the master from liability, where the servant uses the master’s instrumentalities merely for his own pleasure or business. [Tanzer v. Read, 145 N. Y. Supp. 708; Parker v. Wilson (Ala.), 60 So. 150, 43 L. R. A. (N. S.) 87; Doran v. Thomsen (N. J.), 71 Atl. 296, 19 L. R. A. (N. S.) 335; Maher v. Benedict, 108 N. Y. Supp. 228; Smith v. Jordon, 211 Mass. 269, 97 N. E. 761; Howe v. Leighton (N. H.), 75 Atl. 102; Cunningham v. Castle, 111 N. Y. Supp. 1057; Lotz v. Hanlon (Pa.), 66 Atl. 525, 10 L. R. A. (N. S.) 202; Patterson v. Kates (Pa.), 152 Fed. 481; Danforth v. Fisher, 75 N. H. 111, 71 Atl. 535, 21 L. R. A. (N. S.) 93.]
I am persuaded that a distinction should be made as to the liability of owners of automobiles for negligent injuries by such machines different from that applied to owners of horses, carriages and other such harmless instrumentalities and that our statute contemplates such distinction. To make such distinction, however, by holding that the relation of master and servant exists between the father, as owner, and a member of his family using the machine for his own pleasure, merely because that is one of the purposes for which the machine is provided, is violative of the general law governing the liability of the master for the negligent acts of the servant. The relation of master and servant does not spring from the family relationship. [Paul v. Hummel, 43 Mo. 119; Needles v. Burk, 81 Mo. 569, 572.] While an automobile is not a dangerous instrumentality per se, Daily v. Maxwell, *263supra, it does belong to that class of things requiring the highest degree of care in their use on public highways. Such machines, therefore, should only be intrusted to and permitted to be used by one having the skill, qualifications and experience necessary to use such high degree of care; and the owner might well be held liable for negligent injuries resulting from permitting his machine to be run on a public highway by one, whether a member of his family, a servant, or whatnot, who by reason of his age,lack of experience, or skill, or from habits of carelessness or recklessness, is not a suitable person to operate so dangerous an instrumentality. This case, however, was not tried on that theory.
I, therefore, deem this case in conflict with the decisions of the Supreme Court in Garretzen v. Duenckel, 50 Mo. 104, and Walker v. Railroad, 121 Mo. 575, 584, 26 S. W. 360, and other like cases there cited, and ask that the same be certified to the Supreme Court for final determination.