(dissenting)—I agree with the majority opinion except for its conclusion that a summary judgment should be entered dismissing the professional services corporation. The majority recognized it is presumed, when an employee is driving his employer's automobile, that both agency exists and the driver is acting within the scope of his employment. It then concludes, however, that the testimony of the defendant rebuts and overcomes the presumption. I do not so view the evidence. The majority's conclusion overlooks the accepted rule that respondent is entitled to the reasonable inferences from the evidence, and given these, I believe a jury question does exist.
There are inferences which can be drawn from the evidence which support the existence of liability on the part of the corporation. It could be argued a business relationship existed between the lawyer Mr. Bell drove home on the evening of the accident and Bell's firm. This lawyer had several cases referred to him prior to the time of the accident by Mr. Maxey, a partner of Mr. Bell. After the accident, this lawyer referred a case to Mr. Maxey and his testimony also indicated that he may have referred cases to Mr. Maxey prior to the accident, although he could not recall with certainty.
I believe plaintiff should also be entitled to argue to the jury that there' was a business benefit to the firm from a partner being observed by the general public driving a prestigious automobile. A lawyer's referrals come from diverse sources, many of them impossible to identify in advance. It is fair to say, however, that many professional *138men, including lawyers, are concerned with presenting an image of success to the public at large as a means of encouraging a belief in their competence. This image is a composite of several factors; office location, furnishings, personal appearance, and community recognition are but a few. This firm apparently considered it to be an important factor in presenting such an image of success for its partners to be seen driving luxury automobiles. The firm did lease a Ford LTD, but this was not assigned to a senior attorney. The firm paid for all lease costs and did not attempt to apportion them between personal use by the attorneys and business use. It also paid for all maintenance, repair and insurance costs.
I believe there were sufficient inferences from the testimony to present a jury question, even without the existence of the presumption of agency and action within the scope of employment recognized by the majority. If this presumption is given effect, an even stronger case is made out for rejecting the summary judgment on this issue.
We have held in the workmen's compensation setting that an employee is within the course of his employment while going to and from his place of work in an automobile furnished by the employer, where the use of the vehicle for such a purpose can fairly be said to have "'ripened into a cfistom to the extent that it is incidental to and part of the contract of employment"' and is a practice "'beneficial to both the employer and the employee.'" Aloha Lumber Corp. v. Department of Labor & Indus., 77 Wn.2d 763, 766, 767, 466 P.2d 151 (1970). A similar principle should control here. There can be little question that the use of the car here at issue was a recognized employment benefit provided to lawyers employed by the firm. Further, the firm clearly obtained a tax benefit from this arrangement and it may be logically inferred that the use of prestigious automobiles by the firm's senior attorneys provided intangible benefits to the corporation through enhanced community reputation and client goodwill.
*139Where the action of an employee can fairly be said, as here, to have a dual purpose—that is, to serve the desires of both the master and the servant—"no nice inquiry will be made as to which business the servant was actually engaged in when a third person is injured, but the master will be held responsible unless it clearly appears that the servant could not have been directly or indirectly serving his master." (Italics mine.) Leuthold v. Goodman, 22 Wn.2d 583, 594, 157 P.2d 326 (1945). See Murray v. Kauffman Buick Co., 197 Wash. 469, 85 P.2d 1061 (1938); Restatement (Second) of Agency § 236, comment b (1958). Both Leuthold and Murray hold that in such circumstances the question of whether the act is within the scope of employment is to be resolved by the trier of fact and not as a matter of law. I see no reason to refuse to apply these established principles of agency law to a professional service corporation engaged in the activity of providing legal services. The facts before the trial court certainly would allow the jury to conclude the activity which gave rise to the plaintiff's injuries involved the use of an established employment benefit by an employee and also at least indirectly benefited the employer's business. This is all that need be shown to survive a motion for summary judgment.
The action of the trial court with regard to this issue was incorrect and should be reversed.
Horowitz, J., concurs with Utter, J.