(dissenting).
In the majority opinion it is stated:
“No case has been cited to us to indicate that under the Texas decisions the mere fact of the presence of the owner of an automobile in the car at the time of an accident creates an irrebutable presumption that the driver is his agent merely on the theory that the owner could, if he saw fit to do so, terminate the consent given to the driver to drive the automobile and retake control of it himself. The cases speak of this fact as a ‘presumption’ and as being ‘evidence’. We conclude, therefore, that the jury’s finding that Wilmer Little was not the agent of the owner of the automobile, the only special issue presented on this point, was warranted by the evidence and thus resolves the question whether the driver’s negligence is to be imputed to the owner of the automobile.” (emphasis added by me)
With deference, this long paragraph confuses two bases for holding that the driver of a car, with the consent of its owner, is the agent of the owner. One of these is that the owner is himself in the ear. The other is that the driving is a joint enterprise of the owner of the car and the driver.
When the first basis is shown, as it was here, that is that the owner of the car is in it, agency is established as a matter of law and whether the enterprise was or was not joint is immaterial.
With deference, then, while the holding of the majority that whether the trip was a joint enterprise was a question of fact might possibly be correct as applied to the issue of joint enterprise, though I do not think it is, it cannot be stated that there was any issue of fact upon-whether the owner of the car was in it and had not surrendered his right of control to the driver.
I, therefore, take up the gauntlet by stating that the two cases which the-writer cites, Johnston Testors, Inc. v. Taylor, 309 S.W.2d 117 (Tex.Civ.App.Ref.N.R.E.) and Straffus v. Barclay, 147 Tex. 600, 219 S.W.2d 65, and the cases of El Paso Electric Co. v. Leeper, 60 S.W.2d 187 (Tex.Com.App.) and Rankin v. Nash-Texas Co., 105 S.W.2d 195 (Tex. Comm, of App.), hold just exactly that, for while they do speak of the fact that the owner being in the car is evidence, they also, by entering judgment as a matter of law on this evidence, make it clear that the only evidence which could rebut the presumption of the driver’s agency in these circumstances is that the owner has surrendered the right of control to-the driver and there is no evidence or any claim that there is any such evidence in-the record in this case.
I, therefore, affirm with complete and absolute conviction that it is the law in Texas, as shown by the quotation from the Johnston case that “Under all the circumstances, the law will presume that. Jim Taylor was in full control of his-automobile and that Bud McCumber was-driving it under Taylor’s direction and as; his agent”, and generally elsewhere. See note to Ross v. Burgan, 163 Ohio St. 211, 126 N.E.2d 592, 50 A.L.R.2d at p. 1281, in which many cases are cited and discussed in support of the rule just stated by me, and it is quite clear that in Ross-v. Burgan, the Ohio Supreme Court, quoting from Beam v. Pittsburgh Ry. Co., 366 Pa. 360, 77 A.2d 634, states very well the rule controlling here:
“‘(1) The mere presence of the owner in an automobile while it is being driven in a negligent manner by another does not necessarily make him liable for an injury caused thereby, or impute to him the driver’s negligence. * * *
“ ‘(2) There is a presumption, in the absence of any evidence to the *889•contrary, that an owner present in Ms car has power to control it. * *
“‘(3) The test of the owner’s liability is the right of control, not ■whether he exercises it * * *. Indeed, the owner’s very failure to ■exercise his control would ordinarily •amount to a tacit consent on his part to the manner in which the operation ■was being conducted and thereby establish his liability a fortiori. * *
“‘(4) In the absence of evidence to the contrary, the legal relation between the owner seated in his car and the person whom he has permitted to drive it is that of principal and agent or master and servant and he therefore is not only liable for damages caused to a person by the driver’s negligence but the driver’s contributory negligence is imputable to him so as to bar his right of recovery, if he himself is injured, for damages caused by the negligence of a third person. In other words, if the negligence of the driver is imputable to him as a defendant it is also imputable to him as a plaintiff in the same situation. Rest. Torts, §§ 485, 486.’ ” (emphasis by me)
Again on page 595 of 126 N.E.2d, on page 1279 of 50 A.L.R.2d, the court said:
“A number of courts have adopted the rule, which appeals to us as fair and reasonable, that, where an owner is the passenger-occupant of his own automobile, a rebuttable presumption or inference arises that he has the control and direction of it, and that the driver is acting as his agent in operating the car.” (emphasis mine)
Many cases are cited in support of this view.
With deference, the writer of the majority opinion here, while stating that there was evidence showing the very fact which raises the presumption of master and servant, overlooked the fact that the evidence, needed to rebut the presumption but absent from the record, was evidence that the owner had surrendered his right of control to the driver, and there is no evidence and no claim of any evidence that this was so in this case. On the contrary, the evidence of both owner and driver was to the effect that there was no surrender of the right of control. Indeed, in this case there was no attempt made below to rebut the presumption of agency arising from the fact of the owner’s presence in the car. The only effort made ivas to try to show that the driver was not engaged in a joint enterprise with him.
As I stated in the beginning, if joint enterprise were the only issue in the case, it might be held, though I do not think it could be, that there was not a joint enterprise, but the trial court did not submit that issue. It submitted only the issue of whether the driver was the agent of the owner and then correctly later determined that there was no evidence to rebut the presumption arising from the fact of the owner’s presence in the car and rendered judgment accordingly.
Putting aside, however, all the cases precisely in point, I confidently affirm that, if there were no such cases, any lawyer or judge, familiar with the law of master and servant, principal and agent, and respondeat superior in states where contributory negligence is still a defense and comparative negligence does not prevail, as it does in Georgia, would be bound to hold that an owner of a car in which he was riding would be responsible for the negligence of the driver unless there was proof that, though he was in the car, he had surrendered his right of control to the driver.
I, therefore, urgently beseech my brothers not to commit this court to a holding, which is on its face indefensible, that an owner of a car, while being driven in his ear, can, by engaging a driver for gratis or for hire to drive him, escape the responsibility for that person’s negligence and recover damages for injuries resulting to the owner therefrom.
I reali2ie it is not my duty to save the world or this court from bad decisions, but when, as is the case here, I feel that *890in conference I utterly failed in my duty to explain my views and properly present the state of the law to my colleagues, it gives me a feeling of responsibility which drives me to make out of what seems a very small case a very serious and painful issue, and I, as vigorously as I can, dissent from the opinion of the majority.