(dissenting).
I am unable to concur in the views of the majority of the Court as expressed in the opinion.
Although an automobile is not considered as dangerous per se, it is one of the most dangerous instrumentalities yet invented when placed in the hands of a dangerous and reckless driver or one whose senses have been dulled by drink or drug.
The majority opinion recognizes the rule set out in Restatement of the Law. of Torts that one who supplies a chattel to another, knowing that the person to whom it is supplied, is likely to use it in a manner involving unreasonable risk or bodily harm to another, is ■ liable for damages arising from the use of the chattel, in a manner which might have been anticipated.
The rule has been applied in Kentucky in instances where an owner lends his automobile to a known incompetent driver. In Brady v. B. & B. Ice Co., 242 Ky. 138, 45 S.W.2d 1051, 1053, the Court said:
“If an owner lends his automobile to another under circumstances that do not warrant the application of the doctrine of respondeat superior, any,liability attaching to him does so by, reason of his own negligence in knowingly. permitting the use of it in such , a way as would probably cause .injury to others. And if, when such owner intrusts his automobile to another, he knows such other person is an inexperienced, careless, or reckless driver, he is liable for the natural and probable conscqüences of his act.”
The majority opinion erroneously assumes that liability is dependent upon some legal relationship, such as agency or bailment. The authorities make it clear that liability in such instances does not rest upon the fact of ownership but upon the combined negligence of the owner in entrusting the machine to an incompetent and reckless driver and of the driver in its operation..
I am unable to discern a reasonable basis for distinction in the negligence of one who lends his car and one who gives a ,car to a known-incompetent or reckless driver. If there is a distinction, the more reasonable view would suggest- that one who gives an. automobile to a known incompetent driver, placing, in him the power to use it at any and all times, drunk or sober, sane or insane, is more negligent than one who merely lends the vehicle for one specific occasion.
Under the majority opinion, the appel-lee, simply because she had title to the car transferred to her son, is placed in a position where a cause of action cannot be stated against her. In doing so, I think the opinion draws a distinction without a difference
I am authorized to say that STEWART and MILLIKEN, JJ., join with me in this dissent.