The opinion
SICKEL, J.
(dissenting). As I understand the decision in Antonen v. Swanson, 74 S.D. 1 , 48 N.W.2d 161, 165 , 28 A.L.R.2d 1 , it was error for the court to instruct the jury in this case on ordinary negligence.
Plaintiffs’ complaint alleges that defendant McLain was the driver of the car and that his willful and wanton misconduct was the cause of her injuries. It is undisputed that the plaintiff was a guest.
Defendant claims, and introduced evidence to prove, that he was not the driver of the car but that the car was being driven at the time of the accident by Schanck, who was also a guest in the car. This evidence constituted in part the defense of McLain to the cause of action stated in plaintiff’s complaint.
In view of this situation the court gave the following instruction (S.R. 741): “You are instructed that if defendant’s contention is true, Schanck became the agent or gratuitous employee of the defendant Forrest McLain and his acts are binding upon the defendant McLain with the same force and effect as if the acts had been committed by McLain himself, and it would make no difference who drove the car if the driver was guilty of willful and wanton misconduct as I have herein defined those terms to you.”
In the absence of a guest statute, a person operating or responsible for the operation of an automobile must use reasonable care for the safety of the guest. 60 C.J.S., Motor Vehicles, § 399(1). *534 Under guest statutes owners and operators are both relieved of their common law liability to guests for ordinary negligence, and the liability is limited to willful and wanton misconduct. Id., 60 C.J.S., Motor Vehicles, § 399(3).
The liability of the owner of an automobile for injuries resulting from negligent operation of his car by another with his permission, independently of the relationship of master and servant 'between the owner and the operator, can exist only by virtue of an express statute. Weber v. Pinyan, 9 Cal.2d 226 , 70 P.2d 183, 185 , 112 A.L.R. 407 .
A statute creating such liability was considered in connection with a guest statute by the Supreme Court of California in the case referred to above. There plaintiffs were husband and wife suing for injuries received by the wife as a result of reckless driving by defendant Pinyan. Bird, owner of the car, was also a defendant. Negligence and willful misconduct of the driver were alleged. The owner demurred to the complaint. The demurrer was sustained and .plaintiffs appealed. The question was: “Whether the owner of an automobile, who allows it to be driven by another, is liable for injury to a guest due to the intoxication and willful misconduct” of the driver. The opinion quotes an express statute of California on imputed negligence and also the guest statute. The court said the former was enacted “* * * to place upon the owner of a motor vehicle liability for injuries in its operation by another with his permission, express or implied, and thus hold the owner answerable for his failure to place the instrumentality in .proper hands; the guest law was enacted to protect the owner against fraudulent claims of those riding as guests who, in many cases, were the only witnesses to the accident. Since the imputed negligence statute created a new right of action, giving a remedy against a party who would not otherwise be liable, it must be strictly construed.”
After a lengthy discussion of the distinction between negligence and willful misconduct, the court concluded that under the responsibility Act: “* * * in absence of some other relation such as that of master and servant or principal and agent, the owner of a vehicle who permits another *535 to operate it is liable for injuries arising from the latters’ ‘negligence’ as that term is defined herein, but that he is not liable for injuries arising from the driver’s willful misconduct or intoxication. • We also conclude that liability under section 14134 of the Vehicle Act was limited to acts of the owner or driver arising from the intoxication or willful misconduct by the owner or driver as the case may be, and that the owner who merely permits another to drive his car, and where no other relation exists, is not liable under either statute for injuries to a guest arising from the intoxication or willful misconduct of the driver.”
The instruction quoted above is in the alternative. It instructs the jury that if they find that defendant was driving the car and that plaintiff’s injury was due to his willful and wanton misconduct the plaintiff may recover. On the other hand the jury is also instructed in effect that if the jury should find that defendant was not driving the car but that it was being driven by Schanck, and if the injuries to plaintiff were caused by the willful and wanton misconduct of Schanck, defendant is liable. Since our statutes do not impose upon defendant responsibiltiy for willful and wanton misconduct of Schanck, the above instruction was erroneous and in my opinion the judgment should be reversed.