(dissenting).
I regret that I cannot concur in the majority opinion in these cases. As these cases seem to me highly important and, further, since the field of liability for injuries received in automobile accidents (particularly when the relation of agency is involved) is one of increasing public concern, I am setting forth, probably at greater length than is customary in. dissenting opinions, reasons for the legal faith that is in me.
Crockett, at the time of the accident, was engaged in the business of selling new and used cars at Princeton, under the name of Central Motor Sales. Holt had been in Crockett’s service as an automobile salesman for approximately one year prior to the accident and Holt was still in Crockett’s employ at the time of the trial. Holt had no regular working days or hours; he received no regular salary, working on a commission-sales basis, upon the sales of Crockett’s automobiles negotiated by Holt. It seems that Holt worked when, as, and if he so desired. Plolt had no authority whatever to use any automobile of Crockett for his own personal pleasure or convenience. When Holt secured the name of a prospect, who might become a purchaser of one of Crockett’s cars, he would always first talk the matter over with Crockett and would then secure Crockett’s permission to take a car out for the purpose 'of demonstrating this car to the particular prospect. Holt also had *653authority, when he was demonstrating a car to a prospective purchaser, to permit the prospect to drive the car, when it seemed that this might help in effecting a sale of a car to a prospect. Though the evidence on this point is not altogether clear, it seems that we might imply that Holt, when he was sent out to demonstrate a particular car to a specific prospect, also had authority to try to make helpful contacts with, and to endeavor to sell either the particular car he was driving or other cars of Crockett to, persons, other than the specific prospect, when Holt thought these persons might purchase a car from Crockett.
Prior to the day of the accident, Holt had contacted a prospect for the sale of a car, a Mr. Hale, who lived at Hiawatha, West Virginia. About nine o’clock on the morning of the accident, Holt inquired of Crockett whether Holt should take the car in question over to Hiawatha in order that Holt might see this prospect . with the hope of selling this car to the prospect. Crockett replied that he thought this would be a good idea. Holt then secured the keys to the car and drove the car, a Plymouth sedan, out of the appellant’s garage. After leaving the garage, Holt never took any step whatever either to drive the car to Hiawatha or to get in touch with his prospect. Instead, Holt drove the car down to the Virginian Railroad Station in Princeton. There Holt met Ellison, whom he had known for several years. Ellison got in the car and Holt inquired of Ellison concerning a man in Monroe County, West Virginia, who was a prospect of Holt’s for the sale of a car.
Holt and Ellison talked about fifteen or twenty minutes, when Weikel came up and joined them. Ellison and Weikel were old friends, but Holt had not previously known Weikel. Holt tried to interest Weikel in the sale of a new De Soto car; but Weikel manifested no interest whatever in such a sale*. Holt, it might be noted, made no attempt to sell Weikel the particular car involved in the accident, and none of the driving of this car was ever in the nature of an effort to demonstrate this car to either Weikel or Ellison. Weikel then produced a bottle of liquor, whereupon Ellison, Holt and Weikel began upon a course of what turned out to be rather sincere drinking. After the liquor in this bottle had been consumed, the three proceeded to' the liquor store in Princeton, where Ellison went in and purchased more liquor with money furnished by Weikel. During the course of the drinking (at about eleven A. M.), there was some more somewhat futile and rather desultory talk between Holt and Weikel about -the possibility of the sale of a car to Weikel. Later, another supply of liquor was purchased at this liquor store and Holt seems to have remembered nothing from the time shortly after this second purchase of liquor until after the accident.
Though the evidence on this point is not altogether clear, it seems that Plolt asked Ellison to drive the car after Holt began to feel the effects of the liquor he had consumed. This appears to have been about noon. Ellison replied that he did not have a license as the driver of an automobile. Ellison then suggested that Weikel be permitted to drive and Weikel started driving the car. There is'nothing in the record to show that Holt ever afterwards renewed his invitation to Ellison to drive the car. Weikel then drove the car to the DeLuxe Sandwich Shop, where beer was sold, located on the Princeton-Beckley highway. The proprietor of this shop testified that the party reached his shop sometime between noon and one o’clock.
When the shop was reached, Weikel and Ellison, who were then quite drunk, got out of the car and went into the shop. Holt did not get out of the car, he was unable to do so; for he was then lying in the rear seat of the car, completely unconscious, as a result of the liquor he had drunk. Weikel and Ellison stayed in the shop about fifteen or twenty minutes. There they persuaded a woman by the name of Vergie Keatley to accompany them in the car to a place kept by one Gooch Harris, where cabins were rented to passing motorists. Weikel, Ellison and Vergie Keatley all testified that they were going to the Harris place to “throw a party”. Vergie Keatley was then drunk and the evidence showed that an attempt was made to persuade two other women to go on this party, but that these two women declined this generous invitation because Ellison, Weikel and Vergie Keatley were obviously drunk. While Ellison and Weikel were in the shop, making plans for the afternoon, Holt was lying on the back seat of the car, dead to the world; so.he, of course, was not consulted, and could have nothing to say, about this new and somewhat independent party which was to be thrown at the Harris place.
At a time between three-thirty P. M. and four P. M., Ellison started out driving the *654car from the sandwich shop in the direction of the Harris place. Weikel was then sitting next to Ellison on the front seat of the car; Vergie Keatley was on the front seat, to the right of Weikel, next to the door on the right-hand side of the car. During the course of the drive from the sandwich shop in the direction of the Harris place until the happening of the accident, Holt remained unconscious on the back seat, utterly oblivious to, and taking no part whatever in, what was going on. We think it should be repeated in this connection that the last desultory conversation between Holt and Weikel on the subject of the sale of a car, took place around eleven A. M., at least one hour before the car arrived at the sandwich shop, and about five hours before the happening of the accident. It is' important, too, we think, that the particular journey in the course of which the accident happened was one undertaken by Ellison, Weikel and Vergie Keatley, solely for the personal pleasure and enjoyment of these three.
On these facts, we are called on to decide if there was sufficient evidence to take the case to the jury on the question of whether or not, at the time of the accident, the car was being driven within the scope of the authority of an agent or servant of Crockett, so as to render Crockett liable for the consequences of the accident. In' other words, should the trial judge have directed the jury to bring in verdicts in favor of the defendant, Crockett, on the ground that there was not substantial evidence tending to show that at the time of the accident the car was being driven in the course of the business of Crockett?
A number of West Virginia cases have been cited bearing on the problem of the liability of the owner of a motor car for injuries inflicted on third persons when the car of an owner is entrusted to an agent or servant. It is my opinion, hoiyever, that no single one of these cases, even if it be interpreted most liberally against the defendant1 in the instant cases, has gone so far as to lay down any rule or principle under which the defendant Crockett can be held liable in the1 cases now before us. Some discussion of the more important of these cases, however, would seem to be proper and in order.
In Meyn v. Dulaney-Miller Auto Company, 118 W.Va. 545, 191 S.E. 558, the court held that the agent or servant, Scanlon, was acting within the scope of his employment and the defendant was held liable 1 to the plaintiff. We think this case, however, can clearly be distinguished from our case, for in the Meyn case the accident occurred at a time when the agent was returning home after inspecting the employer’s place of business. In the course of the opinion we find (191 S.E. at page 561): “Scanlon had the right to use the car in question in going to, and returning from, his work. He also had the right to use it and other used cars for his company’s business and his own pleasure.”
Unlike Scanlon, Holt had no right to use the car in question in going to, and returning from, his work, and he had no right to use Crockett’s cars for his own pleasure; nor did Holt, as did Scanlon, receive any regular salary. Attention might also be directed to the case of Ritter v. Hicks, 102 W.Va. 541, 135 S.E. 601, 50 A.L.R. 1505, and the case of Jenkins v. Spitler, 120 W.Va. 514, 199 S.E. 368, in which the Meyn case was cited with approval.
In Shrimplin v. Simmons Auto Company, W.Va., 9 S.E.2d 49, 53, while the facts are somewhat different from the Crockett case, the court used in its opinion, some rather significant language: “True, Chenoweth was continuously in the employ of the defendant, but he was not exercising that employment during the afternoon in any effort to make a sale to or trade with the plaintiff. We think there must be some limitation upon the authority of a servant, even while within the scope of his employment, in inviting people to ride in an automobile under his control, when such invitation has no connection with the business in which he is then engaged. An invitation, proper at the time made, cannot be held to continue long after the consummation of the purpose which prompted it. Any new invitation must rest upon the circumstances then existing. We are of opinion that when the plaintiff accompanied Chenoweth during the afternoon of May 26, when he was engaged in business of his •company with which plaintiff was in no way associated, he no longer had the protection contemplated by the original invitation.” (Italics ours.)
In connection with the Shrimplin case, it is worthy of note that whatever may have been the situation in the Crockett case had the accident happened before Holt became intoxicated, and that whatever power, if any, Holt might have had to take third parties into one of Crockett’s cars while he was driving it, yet, after Holt became drunk, the drive from the sandwich shop *655toward the Harris place was in the nature of a new and independent journey, undertaken in the car hy Ellison, Weikel and Vergie Keatley, in which Holt played no part whatever beyond lying unconscious on the back seat of the car. On that journey, when the accident in question happened, no possible benefit could have been conferred on the master, and nothing could or would be done that might, even in any remote way, help the master or his business.
Appellees relied heavily upon Cochran v. Michaels, 110 W.Va. 127, 157 S.E. 173, 175, and particularly upon this language in the opinion: “It is apparent that at the time of the accident the driver was not engaged directly in defendant’s business, in a narrow and restricted sense; but, as we have seen from Mechem, the rule of respondeat superior is not limited by such a restriction. * * * It may be conceded that the driver did not even intend to further the master’s business by the course he was pursuing at that time; but his mental attitude alone is not controlling. * * * The real test is ‘in the relation which the act done bears to the employment.’ * * * Much of the driver’s information as to prospective purchasers necessarily came through his friends and acquaintances.”
But this language must be construed in the light of the following excerpt from that same opinion: “One purpose of his ‘roving commission’ was evidently to allow him to visit at will among his friends and acquaintances in search of this information. It is reasonable that the defendant had this in mind in giving the driver permission to pick up friends. A friend picked up became an eager informant as well as a partisan of the driver, and the interest of the defendant was thus promoted. Authority to pick up friends impliedly included permission for the driver to put aside momentarily the direct search for purchasers in order to serve the friends. It is a common trait of servants to usurp authority, in the absence of the master. Knowledge of this trait is chargeable to the defendant, as an employer of labor. Mere abuse of authority by the servant- does not sever the relation of master and servant. * * * It is not necessary that the defendant should have anticipated the exact circumstances surrounding this accident. It is sufficient if it was probable that the driver would at times exceed his express authority and carry a friend (a greater or less distance) solely as an accommodation to the friend. * * * We are of opinion that such an act of accommodation was a natural consequence of the broad powers conferred on the driver, and that the defendant should have anticipated that at some time some place the- driver would -do just 'that thing. If so, the act which occasioned the plaintiff’s injury was within the scope of the driver’s employment, and the defendant is responsible for that act.’’ (Italics ours.)
It could hardly be said that the authority conferred by Crockett would impliedly include any such journey as that undertaken by Ellison, Weikel and Vergie Keatley on a frolic of their own, when Holt, the only person in the car who sustained any legal relation whatever to Crockett, lay during all of this journey unconscious on the back seat of the car. Nor can it be contended with fairness, we think, that “the defendant should have anticipated that at some time, some place, the driver would do just what he did”. In the Cochran case, too, the evidence amply warrants the assumption that the driver in that case had authority much broader than that given by Crockett to Holt. We think this last observation is true also in the case of Shahan v. Jones, 115 W.Va. 749, 177 S.E. 774. Miller v. Douglas, W.Va., 5 S.E.2d 799 is not at all in point.
The case of White v. Firestone Tire & Rubber Co., 4 Cir., 90 F.2d 637, decided by this Court, is not directly in point, for in that case, the agent drove the car over to a football game on his own initiative and as an independent undertaking of his own; but some of the observations contained in the opinion of Judge Watkins in that case, I think, do lend countenance to the view I have readied in the instant case.
We have been asked to affirm the judgment in this case on the theory that the owner of a car owes to the public a legal duty to know something about the character and habits of an employee in whose charge the owner has placed an automobile, which is certainly a dangerous instrumentality when carelessly operated. Or, ¡to state .the principle in somewhat different form, we are asked to hold that when an employer knows, or should know, of the bibulous habits of an employee and when, with such knowledge, the employer turns over a car to such an employee for the purposes of the employer, the employer is liable for injuries suffered by third persons when such *656an employee comes under the influence of liquor. It may well be that a statute enacting such principles, or similar ones, may subserve a sound public policy; but there are no such statutes in West Virginia. Nor has my attention been called to any decision in West Virginia (or elsewhere, for that matter) laying down principles quite so broad. In the absence of such statutes or decisions, I do not feel justified in laying down these broad principles and then deciding this case in the light of them.
In this connection, it is not without importance that the record contains no evidence that Crockett either knew or should have known of Holt’s addiction to drink, with the exception of the proven fact that Holt was still in Crockett’s employ at the time of the trial. Surely this is consistent with the idea that it is. human to err, divine, to forgive; and that Crockett was willing to forget and forgive this one .instance of Holt’s slipping from grace. And the record is altogether barren of any evidence showing, or even tending to show, that Crockett knew, or should have known, that Holt was a careless or reckless driver of automobiles.
Three important cases in this field may be briefly discussed. In Forrester v. Jerman, 67 App.D.C. 167, 90 F.2d 412, 414, Associate Justice (now, happily, Chief Justice) Groner was very careful to point out that he was applying a specific Act of Congress, called the Automobile Responsibility Law, D.C.Code Supp. II 1936, T. 6, § 255b, for, near the end of his opinion, he said: “The section in the act creating the new liability goes a step further and makes the person to whom the owner has lent the automobile the agent of the owner, and the result of this is to make the owner liable, upon analogy to the principles of agency, for an injury negligently, inflicted by a person using the automobile with his - consent.” (Italics ours.) ' .
In Department of Water & Power, etc. v. Anderson, 9 Cir., 95 F.2d 577, 582, Circuit Judge Haney said: “If one intrusts his automobile to another, knowing that the latter is an incompetent, reckless, or careless driver, and likely to cause injuries to others in the use of the automobile, the owner is negligent. * * * The owner, of course, would be liable in such case for any injuries proximately caused by such, negligence.” See, also, Priestly v. Skourup, 142 Kan. 127, 45 P.2d 852, 100 A.L.R. 920, 923; 5 Am.Jur. 686, § 355; 2 Restatement of the Law of Torts, p. 1058 § 390. This holding would seem to require that the intrustor must have actual knowledge that the intrustee is incompetent, reckless or careless as a driver and is likely to cause injuries to others. There was, as has been observed, no evidence to support such a finding in the instant case. Holt was not driving the car at the time of the accident and was, as we have seen, totally oblivious of the fact that the car was being driven by Ellison on a “joy ride”.
In Tolbert v. Jackson, 5 Cir., 99 F.2d 513, it was held that when a bailor, rents an automobile to a person known by the bailor to be then a drunken and irresponsible person, and when the bailor knows, too, that the bailee would drive this car in the bailee’s drunken and irresponsible condition upon the populous streets of the City of Atlanta, such a bailor is liable when the negligent driving of the bailee caused the wrongful death of a pedestrian. Here, there was actual knowledge by the bailor of the drunken condition of the bailee; there was also actual knowledge by the bailor that the drunken bailee would engage in the hazardous undertaking of driving the car through the streets of a large city. The bailor actually knew that the situation was loaded with dynamite and that under the circumstances existing when the bailment was created, injuries to third persons were more than likely to occur.
There was no evidence in the instant case to show that Holt had taken a single drink when Crockett entrusted the' car to Holt. There was no evidence, either, indicating any likelihood that Holt would become drunk after Crockett entrusted the car to him; there certainly was nothing to show any high probability of injury to anyone as a result of Holt’s driving this car to the somnolent village of Fliawatha, demonstratthe car there to the prospect and then returning with the car to Princeton. And Crockett, when he entrusted his car to Holt, must have had in contemplation only such, a trip from Princeton to Hiawatha and return.
Before the drinking began at the Virginian Railway Station, Holt did speak to Ellison, seeking information about one of Holt’s possible prospects in Monroe County. Holt also attempted to interest Weikel in the purchase of a car other than the car Holt-was then driving, and Holt did mention this subject again to Weikel out on the road; but all the conversation on this sub*657ject ceased about five hours before the happening of the accident. Weikel manifested no interest whatever in the purchase of any car from Holt, so that Holt’s hope of selling a car to Weikel must have been very close to the absolute zero of science.
Again, the real purpose of the occupants of the car, after Weikel came into the picture, was to engage in the drinking of intoxicating liquor and for that purpose to drive the car from place to place. The liquor in question was furnished by Weikel, or bought with his money; so that the agent was not entertaining the prospect for the purpose of making a sale, but the agent was willingly working on the liquor furnished by the possible ( ?) prospect. Any conversations among the three, Holt, Ellison and Weikel, concerning the sale of a car, was merely incidental to the drinking purpose of the trip, and, in my opinion, these conversations at best amounted to nothing more than a scintilla of evidence tending to show that Iiolt was engaged in the business of his master. The scintilla doctrine does not apply in the federal courts. Particularly does this seem to be true, when an attempt is made to project these cursory conversations in the morning concerning possible sales of cars over into the trip in the afternoon; for then Ellison was driving, Weikel was on the front seat next to the woman who had been picked up, and Holt was lying on the back seat, utterly unconscious of all that was going on around him,
Ellison was asked (record, p. 91): “What was the purpose of all this riding that you men were doing from nine o’clock in the morning until about two-thirty in the afternoon? What was your purpose in it?” He replied: “Well, we were just out to drink; that was all; just drinking; did not have any particular purpose.” Holt was asked (record, p. 152) : “Now, during this trip that you took with Ellison and Weikel, during that day from nine o’clock in the morning until the hour this accident occurred, just what was your purpose in riding around with these men?” His reply was: “To drink whiskey.” And to the next question; “Was that the sole purpose ?”, he replied: “That was all.” Weikel was asked (record, p. 108) : “Where were you headed when this accident happened? Where were you going?” He answered: “Really, I don’t know where.” To the next question, “If you were sober, why didn’t you know?”, his answer was: “I didn’t ask any questions, I was just riding.” And to the question: “Just joy-riding?” he replied: “Yes, sir.”
Accordingly, before the time of the accident, the three men and the woman who had been picked up, had started out on a new journey to a new destination, for purposés solely connected with their own pleasure, and it was on this journey that the accident happened. Holt alone bore any legal relation to Crockett. Ellison and Weikel from a legal viewpoint were utter strangers to Crockett. I do not see how, under these circumstances, it can properly be contended that the unconscious salesman was at the time of the accident, engaged in the business of the employer, or that any advantageous purpose of the master could possibly be served by this drunken joy-ride. Again, I do not think it could truthfully be said that when Crockett turned this car over to Holt, with express directions to drive the car to Hiawatha in an endeavor to sell the car to Hale, Crockett could ever have had in contemplation any such use of the car as was being made of it at the time when the accident happened.
In the light of what has been said above, I think the trial judge erred when he refused to direct verdicts in favor of the defendant, Crockett. Accordingly, I believe that the judgments of the District Court in these cases should- be reversed and that these cases should be remanded to the District Court with directions, under Federal Rules of Civil Procedure, 50 (b), 28 U.S.C. A. following section 723c, that judgments be entered in that court in favor of the defendant, Crockett.