(dissenting).
Third persons who have been absolved of fault were seriously injured in an automobile collision. The car, the driver of which was determined to be at fault, was being returned to the seller of the car by one who had purported to buy it. The route the buyer took is disputed, but the majority opinion assumes that he was returning the car. The only question then is whether the car was covered by the insurance purchased by the seller.
The sale was made on the condition that the buyer’s check was good. It was not; so title never passed and the car still be*384longed to the seller. Even if it be assumed that the title did pass, it reverted to the seller because the seller had rescinded the contract of sale. It was the seller’s car and unquestionably c'overed by the seller’s insurance if it was being driven by the seller or anyone having the seller’s permission or consent to drive it.
The buyer, Smith, had possession of the car. The seller then had to decide how to get the car back. He could have peaceably gotten or sent for it himself; he could have had it repossessed’ through legal processes; or he could have asked or instructed the buyer to bring (drive) it back. He chose this latter alternative.
When the seller instructed the buyer to bring the car back, certainly the buyer had the seller’s permission or consent to drive it back. The car was then being driven by someone with the consent of the owner. The car was therefore covered by the seller’s policy: it was being driven by the owner or by someone with the owner’s consent.
The only case cited by the majority, Farm Bureau Mutual Ins. Co. v. Emmons, 122 Ind.App. 440, 104 N.E.2d 413 (1952), is completely inapplicable. The seller there had not rescinded the contract of sale. He might never have done so but elected to affirm the contract. So of course the car was not covered by the seller’s insurance.
The Court does not reach what I regard as the main point in the case, i. e., the legal test to be applied to determine whether the consent to drive the car had been lost because of the uncertainty of the proof that the buyer had used a direct route in returning the car. He went by a night club to see a girl friend. The insurance company says this was a material deviation. The buyer, on the other hand, said he needed to have her drive him back from seller’s place of business upon his return of the car. Since the Court does not reach this question, it is unnecessary to take a position on whether the Court should adopt the “substantial deviation’’ theory, the “strict or conversion” theory, or the “hell and high water” theory. These theories are discussed in 7 Appleman, Insurance Law and Practice (1962) §§ 4366-4368, pp. 308-327, and in an annotation in 5 A.L.R.2d 600 at 622 et seq.
SMITH and WALKER, JJ., join in this dissent.