I respectfully dissent. The trial court had a right to place its decision as to contributory negligence, in the instant case, squarely on our decision in Stuart v. Pilgrim, supra. The facts are almost identical. Mrs. Stuart, owner of the car, was riding in the car with her husband, the driver. In the ease at bar Mr. Phillips, owner of the car, was riding in the car with the driver, Larry Cooper.
In the trial of the case for damages by Mrs. Stuart against Mrs. Pilgrim, driver of the other car, it is quite evident that Mr. Stuart, the driver of Mrs. Stuart’s car, was guilty of contributory negligence. That is what prompted the appeal, and led to reversal. In the instant case the trial court held Cooper, the driver of the Phillips car, was guilty of contributory negligence. We held in the Stuart case the contributory negligence of Mr. Stuart was not imputed to Mrs. Stuart. In other words, section 321.493, the consent statute, did not apply under such conditions. In the Phillips case the trial court so held, under the precedent of Stuart v. Pilgrim.
*1086In Stuart v. Pilgrim the decision is clear and direct. The driver was guilty of contributory negligence; it was not imputed to the owner, a passenger in the car. In the case at bar the court followed this precedent.
The majority has now emphasized another element. Was the owner in control of the car, although the car was driven by someone else?
If this is now to be considered in all cases similar to Stuart v. Pilgrim, it is certainly a question of fact to be submitted to the jury. It is not purely a question of law to be decided by the court. Yet the majority opinion argues the question, pro and con, and decides this fact question as a question of law.
In the case at bar the trial court submitted the question to itself, as trier of the facts. The court had all the facts before it, including any facts about control, and decided in favor of plaintiff. We are bound by this finding of the trial court.
I approve the discussion of this phase of the case in the majority opinion as pertinent and valuable. Maybe the question of control should be submitted to the jury when Stuart v. Pilgrim cases arise. That does not mean this case should be reversed. These rules and principles can be enurfciated, and, the instant case affirmed.
I could cite many cases from other jurisdictions supporting Stuart v. Pilgrim, but they would not answer the error of the majority as to the specific case at bar.
I would affirm.