With due respect to the majority, I feel compelled to dissent. It seems to me that the ground for reversal named in the majority opinion is not well-founded. There is precedent for the majority opinion, of course, but my thought is that the precedents do not announce correct law and therefore, so far as inconsistent with the contention here made, should be overruled.
In Wilkinson v. Queal Lumber Company, 208 Iowa 933, *Page 676 we first laid down the rule that admissions of the driver concerning his negligence could not be introduced in evidence against the owner of the car, who consented to the driver's use thereof. Consistently the Wilkinson case was followed in Cooley v. Killingsworth, 209 Iowa 646; Looney v. Parker, 210 Iowa 85; and Wieneke v. Steinke, 211 Iowa 477.
Our statutory law is being overlooked in this line of cases. Section 5026 of the 1927 Code provides:
"In all cases where damage is done by any car driven by any person under fifteen years of age and in all cases where damage is done by the car, driven by the consent of the owner, by reason of negligence of the driver, the owner of the car shall be liable for such damage."
If the automobile, then, is driven by one, not the owner, with the owner's consent, the owner is liable for damages if the driver was negligent. That is the express declaration of the statute. Assuming, then, that the owner of the automobile has permitted another person to drive the same, the question is — was such driver negligent? How may the negligence of such driver be proven? Manifestly by facts and circumstances. Also by the material admissions of such driver. Clearly the question is not — was the owner negligent, but rather, does negligence appear on the driver's part? Unquestionably, then, any material, relevant, and competent evidence that would show negligence on the driver's part would necessarily have to bind the owner because he is liable if he consented to the use of his car. Any other interpretation of the statute amounts to a distortion of its meaning.
Under the majority theory there could be a verdict by the jury against the driver and not against the owner, even though the record is clear that he gave his consent to the use of his automobile and the driver was negligent in the use thereof. According to the statute, however, if the owner consents to the driver's use of his car, there would have to be a verdict returned against both the driver and the owner, if the driver was negligent. As a matter of fact, the only way the owner can be freed from liability when the driver's negligence appears is upon the theory that the former did not consent to the driver's use of his car. Hence, any material, relevant, and competent evidence that *Page 677 shows the driver's negligence is clearly admissible against the owner. A trial of this kind involves, not the negligence of the owner, but that of the driver. Therefore, when the negligence of the driver alone is involved, any competent, material, and relevant evidence may be introduced to show such tort. Negligence is negligence, and that which constitutes the driver's negligence likewise constitutes the negligence that establishes the basis for the owner's liability.
Conceding that the particular evidence properly shows the driver's negligence, automatically under the statute it must be admissible against the owner. Of course, if the owner's negligence were involved, then the statements and actions of the driver might or might not be admissible against him. Here, however, the owner is liable, not because of his negligence, but because he consented to the use of his car by the individual who is negligent. That consent makes the owner liable for the driver's negligence. The owner, having consented, cannot escape liability if the driver is negligent. Such negligence on the driver's part may be shown, as before said, by any competent, relevant, and material evidence, including his material admissions.
Believing, therefore, that the majority opinion in this respect is fundamentally wrong, I respectfully dissent.
STEVENS, J., joins in this dissent.