dissenting:
The opinion adopted by the majority is contrary to the weight of authority, as perhaps is sufficiently apparent from the opinion. In 20 R. C. L. 629, the conclusion of the courts on the question is stated as follows: “Where the parent purchases an automobile for the use of his family, a child using it for his own pleasure is held by the weight of authority to be the servant of his parent in doing so, and if in the course of his travels he negligently manipulates the machine the act is within the scope of his employment.” The same doctrine is stated in Berry on Automobiles (sec. 653) : “The rule is followed in most of the States in which the question has been decided, that one who keeps an automobile for the pleasure and convenience of himself and his family is liable for the 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.” In Babbitt on Motor Vehicles (Blakemore, 2d ed. sec. 902,) the same rule is stated: “There is a class of cases where the head of a family buys an automobile for the use and pleasure of his family, and the courts incline to hold that when a car bought for family use is used for that purpose the owner is liable for negligence in its operation,”—and this is followed by cases supporting the doctrine. In section 903 of the same work it is said the weight of authority now is that when a father provides an automobile for the pleasure of his child he is liable for the child’s negligence in running the car, with this statement: “If a father owns an automobile and permits his .son to run it, the son is, as a matter of law, his agent,”—citing Winn v. Holliday, 109 Miss. 691, in which case a son of the owner was- driving an automobile, accompanied by his brother arid friends, on his way to a ball game.
We see nothing fantastic in these statements of the relation between the owner of an automobile furnished for general family use and a member of the family operating it in the authorized use, nor in' the decisions of many courts to the same effect. The relation is not based upon the purpose which the parent has in mind in buying the automobile but upon the authorized application to the family use, and there is no similarity whatever between providing an automobile for the use of the owner’s family and keeping one for use of a club, school or general public, between whom and the owner there is no relation or obligation to furnish an automobile or anything else. Neither is there any ground for comparison between furnishing golf clubs, base balls and bats, or the like, to be used on private grounds, and furnishing an engine-driven car to be used on the public streets and highways, where the owner must anticipate that negligence in operation may produce the most serious results. .
The leading case in support of the opinion adopted in this case is Doran v. Thomsen, 76 N. J. L. 754, which is generally cited by the courts adopting the same theory, but in Missell v. Hayes, 86 N. J. L. 348, the court stated rules at variance with the former decision. In the later case the question was one of agency, where the son was driving his father’s automobile with his mother and sister and guests, and the court said: “It was within the scope of the father’s business to furnish his wife and daughter, who were living with him as members of his immediate family, with outdoor recreation, just the same as it was his business to furnish them with food and clothing or to minister to their health in other ways.” The refusal of the trial court to direct a verdict against the plaintiff was approved and judgment affirmed. The court said that the relation of principal and agent may be either expressed or implied, and the real question is whether the act is done with the assent of the person charged, whether expressed or implied. The court saw some ground of difference between that case and the former one, but declared that the operation of an automobile furnished by a parent for the use of his family is his business and the authority to use it may be either expressed or implied.
There is no possible ground of difference concerning liability whether there is one member of the family in the automobile or the whole family. If it is within the scope of a father’s business to furnish members of his family with an automobile for family use just the same as it is his business to furnish them with food and clothing or to minister to their health in other ways, it was just as much the business of the plaintiff in error, when his son drove the automobile for his convenience, as if all the family had been riding in it. The only ground upon which it can be said that he was not liable for negligence in the operation of the automobile would be that it was none of his affair, which is not only contrary to the weight of authority but against the public interest and natural justice. It is not contended that the liability arises out of the mere' fact of the relation of parent and child or upon the duty of a parent to furnish an automobile for the use of the members of his family, but it rests on the doctrine of agency, which is not confined to commercial business transactions and which arises from the fact of the parent furnishing an automobile for family use, with a general authority, expressed or implied, that it may be used for the pleasure, comfort and entertainment' or outdoor recreation of members of the family. The correct doctrine has been stated and applied in numerous cases under conditions similar to those shown by the record in this case. Stowe v. Morris, 147 Ky. 386; Ploetz v. Holt, 124 Minn. 169; Kayser v. VanNest, 125 id. 277; McNeal v. McKain, 33 Okla. 449; Birch v. Abercrombie, 74 Wash. 486; Smith v. Jordan, 211 Mass. 269; Griffin v. Russell, 144 Ga. 275; King v. Smythe, 140 Tenn. 217; Crittenden v. Murphy, (Cal.) 173 Pac. Rep. 595.