(dissenting). I have no quarrel with the statement of abstract legal principle as announced in the majority opinion, but respectfully dissent from the application of that principle to the record facts. The liability, if any, of the defendant J. W. Patterson must be predicated on the doctrine of implied agency. There was no express agency. That much is conceded. The “family-use” doctrine, as it has been heretofore denominated, is but another name for implied agency. It is but a matter of terminology. In the application of the theory of implied agency, the scope of the employment must be considered in the same manner as in an express agency.
Here we find a Aired hand on a farm, and his employment clearíy did not contemplate the function of a chauffeur. Furthermore, the evidence is undisputed that not only was his employment as a driver of this car outside the relation of master and servant, under any contract, express or implied, but his right or privilege to drive or use this car was expressly prohibited by the master and owner.
*267Mere ownership of an auto, per se, imposes no civil liability on the owner in the event of damages resulting from the negligence of some other person in the use thereof. An auto is not an inherently dangerous instrumentality, and there is and should be no different rule of liability in tort as applied to an auto than to any other instrumentality. There is no theory of social duty involved.
Upon what, then, may the judgment against Patterson be sustained ? Simply this: that, since the hired man had used the car two or three times previously, and accompanied with the wife and daughter, although contrary to the specific instructions and prohibition of the owner, an implied agency arises.
The wife had no authority to create an agency in this particular, binding the husband and owner to respond in damages for the negligence of a driver, whosoever he may be. In the instant case, she was the mere guest of the driver. It may also be said that repeated wrongful conversions of a specific chattel by a servant or agent, whereby, in a subsequent conversion, perchance a damage to a stranger results, do not create a liability on the part of the master and owner of the chattel, or furnish as to the latter a rule or measure of damage. In brief, it does not create an agency by implication.
The majority opinion bases the liability of Patterson on an implied agency, concerning which, in my judgment, the record is barren.
Faville, J., joins in the dissent.