(dissenting).
I am unable to agree with the decision of the majority (except in so far as the ruling as to Robert Lee Love is concerned) , as it seems to me that the trial judge was clearly correct in directing a verdict for both defendants on the opening statement of counsel for the plaintiff.
Plaintiff was injured under circumstances which, if proved, certainly constitute negligence on the part of the thief who was the driver of the automobile at the time of the accident. On this point I have no doubt. The action of the trial court was based not on the question of the negligence of the driver of the car, but on the fact that not only was there lack of authority on the part of that driver to drive it, but also that he was not given “any permission, of course, to drive the car off of the premises”, nor was he “driving the car on any business of Mr. J. Spencer Love’s.” (Opening statement.) The plain fact is that Coates stole the car from his employer’s premises.
Because of what seems to me to be a grave departure from recognized principles, I have set forth in the margin every allegation seeking to place liability in so far as the defendants are concerned.1 In this connection, while I agree *38¡that, the direction of a verdict on an ■ opening statement should be made when only one conclusion can be reached, Best v. District, of Columbia, 291 U.S. 411, 54 S.Ct. 487, 78 L.Ed. 882, I feel that 'this was a case where such direction was pe- . culiarly appropriate.2 It should bé noted in passing also that this was not an opening statement by an inexperienced lawyer, who might have overlooked an im- . portant point, but that of an able, experienced and careful lawyer of recognized ability.
I agree with my brethren that the substantive law of the State of Virginia is applicable in this case. See Kas v. Gilkerson, 91 U.S.App.D.C. 153, 199 F.2d 398; Casey v. Corson & Gruman Co., 95 U.S.App.D.C. -, 221 F.2d 51. See also Restatement, Conflict of Laws, Secs. ¡377, 378. This being so, we have a situation which is to be decided by the law of a state which has no financial responsibility law (as does the District of . Columbia), where the courts have ex- . pressly rejected the “family purpose doe-,-trine,” Hackley v. Robey, 170 Va. 55, 195 S.E. 689, 692, and have permitted recovery against the owner of an automobile under the doctrine of responde-at superior “only when the relation of master and servant is. shown to exist between the wrongdoer and the person . sought to be charged for the result of some neglect or wrong at the time and in respect to the very transaction out of which the injury arose.” Nixon v. Rowland, 192 Va. 47, 63 S.E.2d 757, 761; *39Meek v. Graybeal, 195 Va. 381, 78 S.E.2d 593. (Emphasis supplied by Virginia court.)
Further, the law of Virginia is that an automobile is not a dangerous instrumentality3 unless the owner “intrusts it to one, though not an agent or servant, who is so incompetent as to the handling of same as to convert it into a dangerous instrumentality, and the incompetency is known to the owner when permitting the use of the vehicle.” (Emphasis supplied.) Crowell v. Duncan, 145 Va. 489, 134 S.E. 576, 582, 50 A.L.R. 1425.
Under these circumstances, plaintiff is forced to base her claim upon the doctrine of “intrustment”. The law of Virginia is clear that if the owner of a car intrusts his automobile to be driven by a person known to be accustomed to drive under the influence of intoxicating liquors, or known as a reckless or incompetent driver, or by one who is an epileptic or the like, liability may be fastened on the owner if he knew these facts.
In Flanagan v. Kellam, 187 Va. 754, 48 S E.2d 69, where intrustment was relied upon by plaintiffs, the court distinguished the Crowell case, supra, pointing out that in Crowell the father gave the son, when it was not otherwise in use, the unlimited use of the taxicab, to be used by him at will, the son being addicted to the use of ardent spirits and this fact being well known to the father. In Flanagan the record disclosed that the mother did not on a single occasion allow the son to drive the automobile, permitting him to use it when she was assured that some one else would drive; and, it being shown that the mother never having given her son permission to drive the automobile after revocation of his operator’s permit, there could be no recovery. In Flanagan, Weatherly was driving an automobile belonging to his mother. Weatherly’s fiancee, Flanagan, was a passenger in the car and was injured as a result of Flanagan’s negligence. The court struck out all evidence against the mother. The court said:
“Apparently, the theory of the plaintiffs’ cases, as disclosed by their respective notices of motion, was that Weatherly was operating the automobile as an agent for his mother. In the final stages of the trial *40this theory was abandoned and the sole basis for liability was then contended to be that Carrie Kellam was guilty • of independent negligence by entrusting the automobile to her son who had previously had his operator’s permit revoked because he had improperly operated a motorcycle.”
The court said further:
“We think the court was correct in striking the evidence as to Carrie Kellam. The automobile was not being driven on any mission of hers; it was being driven at the time for the pleasure of Weatherly and his friends; therefore, the doctrine of respondeat superior does not apply.”
Not a single case has been disclosed, either in Virginia or elsewhere, where, under facts similar to the instant case, liability has been fastened onto a defendant. With entire fairness, counsel for plaintiff admits that the employee was not given any permission to drive the car off the premises and that, at the time of the accident, he was not driving the car on defendants’ business.4
In McNeill v. Spindler, 191 Va. 685, 62 S.E.2d 13, in discussing the doctrine of intrustment, the Virginia court cited with approval Williamson v. Eclipse Motor Lines, 145 Ohio St. 467, 62 N.E.2d 339, 342, 168 A.L.R. 1356, which case is even stronger than the instant case. There an alleged incompetent driver had been permitted to take and operate defendant’s automobile. He deviated from his employment and drove the automobile for his own purposes. The court examined the question of the alleged negligent intrustment of the automobile to an allegedly inexperienced or incompetent person. The court said:
“We have seen that the liability involved does not arise out of the relationship of the parties, whether of family, business or otherwise, but results from the act of entrustment of a motor vehicle to an incompetent or inexperienced operator. Negligence of the owner is the basis of the liability.”
The court also stated:
“The liability, therefore, does not arise out of the relationship of the parties, but out of the act of en-trustment of the motor vehicle, with permission to operate the same, to one whose incompetency, inexperience or recklessness is known or should have been known by the owner. (Citing cases.) Mere delivery of a motor vehicle to another without permission to operate it does not give rise to liability of the owner for the wrongful and negligent operation of such motor vehicle.” (Emphasis supplied.)
I do not believe the doctrine of in-trustment is applicable to this case. There was no “intrustment”. The car was driven off the premises of the defendants by a thief.
Let us look at the direction toward which the decision of the majority leads us. Suppose a person has been imprisoned for assault. Upon his release he obtains a position in a restaurant as a dishwasher or as a kitchen assistant of some sort. Among the articles he washes or uses is a sharp knife or cleaver. One day he steals such knife or cleaver, uses it in connection with a hold-up, and kills some one. Under the theory of the majority he has been “intrusted” with the implement. Does this make the restaurant owner liable in damages?
Or suppose a parolee is employed in a machine shop, where he uses a chisel or screwdriver. One night he goes out, uses the chisel or screwdriver to break into a store; he robs the store and kills a watchman. Under the theory of the ma*41jority he has been “intrusted” with the implement. Does this make the machine shop owner liable in damages?
These examples, of course, can be multiplied ; and there is just as much reason for holding the restaurant owner or the machine shop owner in the above examples liable in damages as there is for holding either of the defendants liable in this case.
In passing, although forming no basis for my opinion, it may be noted that the action of this court makes it even harder than it is today for a parolee to rehabilitate himself. No one could hire such a person except at his peril, if the law is as the majority says it is to be. Certainly, if one hires such a person, he had better install a safe in which to keep the keys of his car, for he may not leave them around unguarded.
This is a hard case. A young girl has been seriously injured. But it has been said “hard cases make bad law” and, in my opinion, that is the case here.
I take this opportunity of saying that my experience as a trial lawyer and a trial judge convinces me that something should be done to protect innocent victims of persons who are financially irresponsible, as was apparently the case of the thief in this case. But it is up to the legislative bodies to provide remedies, whether by way of an unsatisfied judgment statute or otherwise.5 It is not for the courts to legislate or extend liability where none by law has ever existed.
In conclusion, the majority rules out of this case the doctrine of intervening independent negligence, which has been recognized by the Virginia courts.
I would affirm as to both defendants.
. “May it please the court and you ladies and gentlemen of the jury. This is a case brought by Sheila Ilina Boland against Mr. J. Spencer Love and Mr. Robert Lee Love for compensation for injuries sustained by her in an automobile accident down in Virginia.
“The evidence will show that the car which was involved in the accident was owned by Robert Lee Love and kept on the premises of J. Spencer Love in the District here. The driver of the car was in the employ of Mr. J. Spencer Love but, however, at the time of the accident he was not driving the car on any business of Mr. J. Spencer Love’s.
“I should briefly tell you the evidence which will show you how the accident happened. Then I will briefly outline the evidence showing how and the circumstances under which the driver of the car had possession of the car on that day.” * * * * *
(Here follow facts as to the happening of the accident, which, if true, show negligence on the part of the driver of the Love car.) * * * * *
“Shortly after the accident the driver left the scene.
“Now, with reference to what happened in Washington, the evidence will show that Mr. J. Spencer Love at that time owned a place out here on 3200 Northwest Ellicott Avenue. He kept on that place several automobiles, and among them was this Pontiac automobile owned by Robert Lee Love, his son.
“Robert Lee Love had left the premises shortly before and entered the Army and left the automobile there in care of a man named Hamilton who was the private secretary and employee of Mr. J. Spencer Love.
“The evidence will show that these automobiles were left there in charge of and under the control of Mr. Hamilton.
*38“The evidence will show further that a man named Anderson, I believe, was employed just ahead of Coates. Coates was employed as his assistant, as a gardner and yard man, that is by Mr. J. Spencer Love. Then, before this accident took place, Mr. Anderson left and left Coates there to perform the services that had been performed by Mr. Anderson. And the evidence will show that Coates’ duties, among others, were to drive the automobiles around to the front door when the family was there, and when they were not there and the automobiles or any of them were left on the premises, he was supposed to start the automobiles up and run them idle, so to speak, so as to keep them alive or keep the batteries from dying, and perhaps wash the automobiles.
“The evidence will show that in the early part of January, 1951 — now, mind you, this accident happened on January 23, 1951 — in the early part of January, 1951, Mr. Love and his family locked the house up, left it, and went away for several months.
“He left Mr. Hamilton, the employee-secretary there, supposedly to supervise Coates, look after the automobiles and what not, but Mr. Hamilton worked in the office downtown and so in the morning he would leave and go to the office and ¡leave Coates on the premises. So, on -the morning of January 23, 1951, with Mr. Love and his family away, all of the other servants, maid and man servants away with the family, excepting Mr. Coates, Mr. Hamilton left the house that morning ■ leaving no one there to supervise Coates in any way, shape or form, and Coates finding himself on the premises with no one to supervise him, took the automobile and drove it down into Virginia.
“Now, the evidence will show that in order that Mr. James Coates might perform his duties, the automobile keys were sometimes given to the maids when they were in the house, with the instructions to give them to Hamilton, and if none of them were there, the keys were placed over the Sunvisor [sic] or windshield.
“On this morning, the 21st of January, I believe, or 22nd, 1951, Mr. Hamilton placed these keys — according to Coates- — over the windshield and told him where the keys were and to take the car and start it up and charge the batteries. But he did not give him any permission, of course, to drive the ear off of the premises.
“So Coates, with no one there to supervise him or control him, took the automobile, went down into Virginia and, coming back, according to the evidence, was a little late and was hurrying to get back to Washington before Mr. Hamilton got back from work, and had this accident.
“Now, the evidence will further show that Coates, I believe back in his teens, was convicted of stealing and again convicted of stealing when he was about twenty-two. He was too young to serve or go to the penitentiary on the first conviction, but he was sent to some training school here and confined there for his infractions of the law, and then he was convicted about twenty-two and given 32 months, X believe, to five years in prison.
. See note 2 on page 39.
*39“Let’s see if I can get the dates here now. On September the 13th, 1948, he was released from prison under supervision of the parole officer, was reporting to the parole officer. In the early part of ’49, I believe it was, he was employed by Mr. Love, and he completed his parole, I believe, on January 14, 1951.
“Now, the evidence will 'show that Mr. J. Spencer Love and his servant and employee Mr. Hamilton, knew the record of James Coates; knew that he was untrustworthy, that he had been twice convicted of stealing and had served in prison almost half of his time after he got ten years old, and the evidence will show that they knew that he did not have a driver’s license and that when they went away and left him without any supervision, it is our claim that they were negligent in thus entrusting these automobiles to this man, and it is that negligence upon which we base our claim.”
2. The statement of the trial judge, appearing in the majority opinion, that he had “a difficult decision in this case” had reference to the sympathy he expressed for the injured plaintiff and not to any doubts he may have had as to his decision. The statement was made to the jury in explanation of the reason why they were not required to hear the case. Further, I do not think that the trial judge Indicated that he considered any matter presented during the argument other than those submitted in the opening statement. Nor have I gone beyond the words in that statement. The trial judge specifically stated in his ruling that “if the plaintiff proves everything she has said she is going to prove in her case, as a matter of law there still will be no case to go to the jury.”
. See Hackley v. Robey, supra, where the court said: “Some of the courts have taken the view that an automobile is such a dangerous agency, 5 Am.Jur., p. 522, § 11, although it was expressly rejected by this court in Cohen v. Meador [Cohen v. Meador, 119 Va. 429, 89 S.E. 876] and in Blair v. Broadwater [Blair v. Broadwater, 121 Va. 301, 93 S.E. 632, L.R.A. 1918A, 1011].”
. Note that in Crowell, supra, relied on by the plaintiff, permission was given to use the car for driving at will and without restriction. In the Crowell ease, in McNeill v. Spindler, infra, and in Harrison v. Carroll, 4 Cir., 139 F.2d 427, cited by the plaintiff, the owner permitted the driving of the car.
. The financial responsibility laws do not give adequate protection. An owner of a car may properly park a car, lock the ignition and windows; the windows may be forced, the engine started by crossing the wires, and the car driven away by a thief, who ultimately may injure a person and then escape. The injured person is without recourse. Consequently, some remedy such as is provided, to some extent at least, by the Canadian unsatisfied judgment fund, or the Manitoba plan in particular, should be considered. Similar plans have been adopted in North Dakota and New Jersey, in Alberta, Nova Scotia and Newfoundland. I suggest that some such plan is deserving of the consideration of the Congress.